Olawadamilare Olaifa, R (on the application of) v London Borough of Bexley

A judicial review challenging temporary accommodation becomes academic when the authority’s housing duty or power to accommodate has moved on to later accommodation. Any live suitability challenge must target the accommodation currently offered or provided. Process challenges under the PSED, Children Act 2004 s.11 and Article 8 cannot survive independently without an underlying live suitability challenge. Where the statutory review and County Court appeal under ss.202 and 204 of the Housing Act 1996 provide an adequate route for all lawfulness grounds, judicial review is a remedy of last resort. On the alternative merits analysis, rational and conscientious consideration of a disabled child’s interests does not require the authority to accept the parent’s preferred adaptations.

The claimant, a homeless mother of three, challenged the London Borough of Bexley’s handling of temporary accommodation occupied by her family. The surviving grounds alleged breaches of the Public Sector Equality Duty, the duty under s.11 of the Children Act 2004, and Article 8. Two earlier grounds concerning the suitability and condition of the accommodation had been refused permission on the papers.

During the proceedings, the council offered permanent accommodation, treated its main housing duty as discharged, upheld that decision on review, and offered further temporary accommodation pending the claimant’s out-of-time statutory appeal. The central issues were whether the judicial review had become academic, whether the statutory review and County Court appeal provided an adequate alternative remedy, and whether the remaining grounds succeeded on their merits.

Claim dismissed. Judicial review was refused on the grounds that the claim was academic and that an adequate alternative remedy was available. The court also rejected the substantive complaints in the alternative.

1. Accommodation provided under the homelessness scheme must be suitable for the applicant and household, assessed by reference to their needs and reasonable requirements. Suitability is relative rather than absolute, although a minimum standard must be met: Waltham Forest LBC v Saleh [2020] PTSR 621. The council’s main housing duty had ceased to concern the former premises after the later permanent accommodation arrangements and the subsequent temporary accommodation offered pending appeal. Any live suitability challenge had to concern the later accommodation. A challenge to the former premises, and process grounds tied to its suitability, was therefore academic.
2. The court accepted the principle in R(AB) v Westminster City Council [2024] HLR 30 that, without an underlying live suitability challenge, a PSED challenge to the way suitability was determined could not succeed independently. The same applied to the Children Act and Article 8 process grounds.
3. Under s.202 of the Housing Act 1996, the claimant could seek a suitability review and appeal under s.204. Following James v Hartsmere Borough Council [2020] EWCA Civ 489, the County Court’s jurisdiction extended to the full range of lawfulness issues otherwise capable of being raised by judicial review, including procedural error, vires, irrationality and inadequate reasons. The PSED, Children Act and Article 8 arguments could therefore be advanced in that statutory route. Judicial review remained a remedy of last resort, consistent with the rationale described in R (Short) v Police Misconduct Tribunal [2020] EWHC 385 (Admin).
4. On the alternative merits analysis, the council had conscientiously considered the disabled child’s interests. Its preference for securely fixed carpet over hard flooring, and for use of the safer rear garden rather than a fenced front garden beside a busy road, was rational even though it differed from the claimant’s view. The evidence also showed inspections, advice and remedial action concerning damp and mould, with no evidence of detrimental impact on the child’s development. The alleged breaches were not established.

First-instance judicial review. Permission for two original grounds was refused on the papers by Jon Halford, sitting as a Deputy High Court Judge. No earlier decision in this judicial review is stated.