Oday Yabari, R (on the application of) v The Lord Mayor and Citizens of the City of Westminster

The section 188(1) interim accommodation duty under the Housing Act 1996 has a low threshold and is ordinarily immediate. However, where an applicant’s medical assertions conflict with a housing authority’s recent, evidence-based decisions, the authority may make quick and reasonable clarification enquiries before deciding whether there is reason to believe that the applicant may be homeless and in priority need.

An authority may, in principle, treat an applicant as homeless at home for a short period if the existing accommodation is suitable temporarily. The assessment must account for all material risks, including fire safety. An applicant’s refusal of suitable interim accommodation may discharge or suspend the section 188(1) duty, subject to revival by a renewed request or changed circumstances.

The claimant, a disabled Westminster resident, sought judicial review of the defendants’ handling of his homelessness application. He lived in a seventh-floor studio flat and asserted that he required a two-bedroom wheelchair-adapted property and overnight care.

The defendants had previously assessed his needs as requiring one-bedroom accommodation and day care. After requesting medical information and clarification, they accepted that the section 188(1) duty applied and offered one-bedroom interim accommodation. The claimant refused it and sought to remain in his existing flat pending a long-term decision.

The issues included the timing of the section 188(1) duty, the lawfulness of clarification enquiries, whether the claimant could be treated as homeless at home, the suitability of the existing flat, the public sector equality duty and appropriate remedies.

1. Section 188(1) duty. The threshold is low, but the duty does not arise merely from an unsupported assertion. In this case, the defendants were entitled to consider the claimant’s application against their existing medical and housing records and to seek current medical evidence and details of treating professionals. Those requests were reasonable clarification, not impermissible non-statutory enquiries.
2. The duty arose on or about 26 August 2022, when the claimant returned the requested forms. The defendants then failed unlawfully to offer interim accommodation until 26 September 2022.
3. Homeless at home. It was lawful in principle to discharge the section 188(1) duty by treating the applicant’s current accommodation as suitable for temporary occupation, applying the reasoning in Birmingham v Ali, R (Edwards) v Birmingham City Council and R (Elkundi) v Birmingham City Council. The decision had to be based on a lawful and rational assessment of suitability.
4. The defendants’ assessment of the seventh-floor flat was irrational because it failed to address the fire risk to a wheelchair user who could not safely descend seven flights of stairs. That error became immaterial after the claimant refused suitable one-bedroom interim accommodation on 26 September 2022. His refusal discharged or suspended the duty, which could have been revived by a fresh request for suitable accommodation or a material change of circumstances.
5. Procedural fairness required the defendants to notify the claimant of their section 188(1) decision, although the point did not arise from a pleaded ground. The public sector equality duty was not breached.
6. The declaration and mandatory injunction were refused. The proposed injunction lacked sufficient precision, and the claimant’s refusal to provide medical information and his lack of candour weighed against relief. The claim was dismissed.