RZH v London Borough of Sutton

This case concerned the lawfulness of a Part 7 homelessness review decision (the Decision Letter dated 16 February 2024) applying the statutory test in section 175(3) of the Housing Act 1996 (the "reasonable to continue to occupy" or RCO Test), and whether that decision breached a range of duties including the public sector equality duty (PSED) under section 149 of the Equality Act 2010, the Equality Act substantive duties (s.19 and s.20), the duty to make necessary inquiries under section 184 of the Housing Act 1996, the duty to give reasons under regulation/s.203(4), and the Children Act 2004 s.11(2) duty to have regard to the welfare of children.

The court held that the Reviews Officer had undertaken the necessary inquiries, engaged with the disability-related evidence and the PSED, and lawfully applied the RCO Test. The Decision Letter did not apply the statutory "room and space" standard mechanically (the error identified in Uddin was not made here), and the safeguarding referral to children’s social services was a precautionary step rather than evidence of an unresolved safety finding which vitiated the decision. The reviews officer’s conclusions about the CPAP machine noise, bedroom sharing options and the usability of the living room were within the range of reasonable responses and were supported by adequate reasons. The appeal and the judicial review were therefore dismissed.

Background and relief sought. The appellants (the mother and, by her, her son) appealed under s.204 of the Housing Act 1996 and brought judicial review proceedings challenging a reasoned s.202 review decision of the London Borough of Sutton dated 16 February 2024. The Decision Letter rejected the family’s contention that it was not reasonable for them to continue to occupy a two-bedroom flat. The family relied on seven duties in total, including inquiries under s.184, the reasons duty (s.203(4)), the common law duty of reasonableness, the Children Act 2004 s.11(2) duty, the PSED (Equality Act 2010 s.149), and the Equality Act substantive duties (s.20 reasonable adjustments and s.19 indirect discrimination). They sought quashing or reversal of the review decision and findings that the Council had acted unlawfully.

Procedural history. A s.204 appeal was issued in the county court on 8 March 2024. A judicial review claim was issued in the High Court on 16 May 2024 and permission was granted on 17 October 2024. The county court later transferred the s.204 appeal to the High Court so the appeal and the judicial review could be heard together; the matters were dual-listed and heard in the Administrative Court.

Issues for decision. The court identified and addressed these principal issues: (i) whether the Reviews Officer lawfully applied the RCO Test (s.175(3)) and made the necessary inquiries under s.184; (ii) whether the Decision Letter gave legally adequate reasons (s.203(4)); (iii) whether the decision breached the Children Act 2004 s.11(2) duty to safeguard and promote the welfare of children; (iv) whether the PSED (s.149) was complied with in substance and process; and (v) whether a council "practice" (applying a room-and-space/overcrowding standard mechanically) engaged the Equality Act substantive duties (s.20/s.19) so as to require reasonable adjustments or to amount to indirect discrimination.

Court’s reasoning and conclusions. The court found that: the Decision Letter engaged with the disability evidence and literature on autism; the Reviews Officer explicitly considered the relevance of the Equality Act and PSED and concluded the mother and son were disabled for Equality Act purposes; the officer gave reasons for rejecting specific factual points relied on by the family (for example, explaining why the CPAP machine was not assessed as unreasonably loud); the officer’s consideration of bedroom-sharing permutations and of the living room as a potential sleeping option fell within the range of reasonable responses; the safeguarding referral was precautionary and did not amount to an unresolved welfare finding undermining the review decision; the Decision Letter did not apply the statutory room and space standard mechanically (the "Uddin error" was not made); and there were no facts from which a court could infer the existence, as applied in this decision, of a general practice requiring adjustment under s.20 or amounting to disproportionate practice under s.19.

The court therefore dismissed both the s.204 appeal and the judicial review claim, made costs orders against the appellants/claimants, and refused permission to appeal to the Court of Appeal on the single proposed ground of appeal concerning the alleged "practice".

The appeal is dismissed and the claim for judicial review is dismissed. The court held that the Reviews Officer lawfully applied the RCO Test in s.175(3) of the Housing Act 1996, made necessary inquiries under s.184, gave adequate reasons under s.203(4), engaged with disability-related evidence and the PSED, did not commit the Uddin error of mechanically applying the room and space standard, and did not apply a "practice" that amounted to unlawful discrimination or that required further reasonable adjustments under the Equality Act 2010. The safeguarding referral was precautionary and did not render the review decision unlawful.

The mother filed a s.204 appeal to the county court on 8 March 2024. A judicial review claim was issued in the High Court on 16 May 2024 and permission for judicial review was granted on 17 October 2024. The Central London County Court transferred the s.204 appeal to the High Court by order dated 27 November 2024 so that the appeal and the judicial review could be heard together. The combined matters were heard in the Administrative Court (High Court).