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When can judicial review be used?

This content applies to England

When it is appropriate to use judicial review .

What is judicial review?

Judicial review in respect of homelessness matters is a legal remedy available only in the High Court. It can be used to challenge certain decisions, actions or failures to act of public bodies, such as local authorities in the exercise of their public functions. It is also a way of compelling a local authority to make a decision or to exercise discretion where Parliament has placed the local authority under a duty.

Judicial review has certain limits. It is not a further right of appeal. Parliament intended that the local authority, rather than the court, should be the fact-finder and the decision maker in homelessness cases.[1] The court cannot intervene simply because it disagrees with a public body's decision and would have made a different decision itself. Furthermore, judicial review is not available where the applicant has an alternative remedy available (eg statutory review or appeal in the county court),[2] or simply because the applicant has missed the time limit to bring an appeal.

An applicant who wishes to apply for judicial review should normally be referred to a solicitor. Public funding may be available for representation. The Administrative Court judicial review guide prepared under the direction of the lead Judge of the Administrative Court provides a general explanation of the work and practice of the Court with particular regard to judicial review. It does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it.

Time limits

Under Civil Procedure Rule 54.5, an application for judicial review should be started no later than three months after the grounds to make the claim first arose. See Time limits for judicial review for details.

Grounds to challenge a local authority by way of judicial review

The following grounds can be used as a basis for judicial review challenge. Where appropriate they will also form the basis of a county court appeal. The grounds include where an authority:

  • ignores relevant factors
  • takes into account irrelevant factors
  • fails to direct itself properly in law (ie the authority fails to follow statute law, case law which has interpreted how the law should be applied and relevant statutory guidance)
  • reverses the burden of proof or imposes too high a burden of proof on the applicant
  • fails to give the applicant the benefit of the doubt
  • fails to make findings of fact
  • fails to give adequate reasons for its decision[3]
  • reaches a decision totally at variance with the facts or for which there is no factual basis for the decision
  • fails to act in accordance with the objects and principles of the Act in question
  • has fettered its discretion (often referred to as operating blanket policies) or has delegated decision-making to an unauthorised body
  • goes back on a legitimate expectation
  • acts dishonestly or in bad faith (this is normally very difficult to prove)
  • comes to a decision which is perverse or irrational, ie a decision so unreasonable that no reasonable authority could have come to it (this is also very difficult to prove)
  • is in breach of its statutory duties, including the Public sector equality duty.

When can judicial review be used in homelessness cases?

In many homelessness cases, even if an authority makes a decision that could be challenged by judicial review, the client will have an alternative remedy - either an internal review or an appeal to the county court. Judicial review is not available where the applicant has an alternative remedy available.[4]

Homelessness decisions that can be challenged by judicial review

Certain homelessness decisions are not subject to the statutory right of review. If these are to be challenged, they can only be challenged by way of judicial review. Although what follows is not an exhaustive list, judicial review needs to be considered to challenge the following:

Refusal to accept a homelessness application or a fresh homeless application: the law does not require a written form to be completed. If a local authority requires this, it will be unlawful.[5] Unless a new application is based on exactly the same facts as existed when a previous application was decided, a local authority has to deal with a fresh application and cannot refuse to accept it[6]

(For applications made on/after 3 April 2018) Failure to carry out an assessment of the applicant's needs under section 189A Housing Act 1996 (see assessment of need)

(For applications made on/after 3 April 2018) Not providing a personalised housing plan (PHP) under section 189A(4) Housing Act 1996, or the steps set out for the applicant in her/his PHP are unreasonable (see Devising and reviewing personalised housing plans)

(For applications made on/after 3 April 2018) Failing to commence taking steps to prevent homelessness or relieve homessness

(For applications made on/after 3 April 2018) Blanket policy that the authority will not use its power to secure accommodation to prevent or relieve homelessness (see Personalised housing plans: steps local authorities can take). For applications made before 3 April 2018, there is a specific power to accommodate households who are not in priority need. A blanket policy that this power is not used could also be subject to judicial review.

Not to provide accommodation pending statutory review: In these cases a local authority must normally consider the merits of the appeal, any new material put forward in support of the review, and the personal circumstances of the applicant (see Accommodation during challenge for more information).[7]

(For applications made on/after 2018) Decision to refer to another local authority at relief duty stage under section 198(A1) Housing Act 196 (see Referrals: relief duty stage)

Eviction from temporary accommodation provided under section 188 without giving reasonable notice: In some cases, 14 days has been held reasonable, in others 28 days and reasonable notice could be longer. Each case will depend on its own facts[8]

Refusing to provide interim accommodation pending a decision on the homelessness application

Suitability of interim accommodation: In one case, it was held unreasonable for a London borough to discharge its statutory obligations by providing temporary accommodation in Birmingham to a woman with three young children.[9] She did not speak English and had no friends and family in Birmingham. She suffered from epilepsy, her absent partner was keen to maintain contact with his children and the move would entail a further school move for the children. Although the basis of the placement was temporary, the local authority knew that it would be for a far longer period. There was no evidence that there was no cost-effective temporary accommodation in the borough or that the only way the local authority could meet its statutory obligation under s.188 of the Housing Act 1996 was by sending the applicant to Birmingham. However, this was an exceptional case and authorities have a great deal of latitude in determining suitability. By contrast, in another case, the local authority made two offers of interim accommodation for the applicant and her grandson under its section 188 duty.[10] The applicant refused one property because it had entrance steps that she was unable to descend without assistance and refused the other because her grandson would have to sleep in the living room. The court rejected her challenge. The drawbacks of each property were not serious enough to render them unsuitable for the purposes of the interim duty

Providing accommodation in breach of a bed and breakfast order: subject to limited exceptions, a decision to accommodate an applicant who is pregnant, or is part of a household containing a pregnant woman and/or dependent children, in bed and breakfast accommodation (defined as accommodation where the toilet, bathroom or cooking facilities are shared) for longer than six weeks[11]

Failure to carry out an assessment under section 190 of the Housing Act 1996: an assessment should be carried out of an applicant's needs in cases where an applicant is intentionally homeless and in priority need; or a failure to provide advice and assistance to such an applicant. The duty to provide advice does not necessarily imply a duty to assist financially, and the authority's resources may be a relevant consideration[12]

Decisions concerning the protection of property: for the obligation to protect property to arise, the local authority must have reason to believe that there was a danger of loss of or damage to personal property because of the claimant's inability to protect her/his property and that no other suitable arrangements had been made or were being made;[13] challenges may also be made around a decision about the length of time that property will be stored for or unreasonable storage charges or charges for accommodation under section 206(2) of the Housing Act 1996

Not to refer a housing application to another authority under section 198 of the Housing Act 1996[14]

Failure to notify the applicant of a review decision within the appropriate time, if an appeal on a point of law is not a satisfactory alternative to a review of the facts of the case[16]

Refusing to make a fresh decision on suitability when given details of a significant and material change of circumstances[17]

Breach of the public sector equality duty: when exercising functions of inquiry under section 184 of the the Housing Act 1996 and of review of a decision after an inquiry under section 202.[18] See Public sector equality duty for details.

[1] This restriction on the power of the court was restated in the Puhlhofer judgment in the House of Lords; R v Hillingdon LBC ex parte Puhlhofer (1986) 18 HLR 158, HL.

[2] R (on the application of Campbell) v Enfield LBC [2001] EWHC 357 (Admin).

[3] South Bucks DC v Porter [2004] UKHL 33.

[4] R (on the application of Campbell) v Enfield LBC [2001] EWHC 357 (Admin).

[5] R v Chiltern DC ex parte Roberts (1990) 23 HLR 387.

[6] R v Harrow LBC ex parte Fahia (1998) 30 HLR 1124, HL; Tower Hamlets LBC v Begum [2005] EWCA Civ 340.

[7] R v Camden LBC ex parte Mohammed (1998) 30 HLR 315.

[8] R v Newham LBC ex parte Ojuri (No.5) (1998) 31 HLR 631.

[9] R v Enfield LBC ex parte Yumsak [2002] EWHC 280, Admin.

[10] R (on the application of Flash) v Southwark LBC [2004] EWHC 717, Admin.

[11] Homelessness (Suitability of Accommodation)(England) Order 2003 SI 2003/3326.

[12] Conville v Richmond upon Thames LBC [2005] EWHC 1430, Admin.

[13] Deadman v Southwark LBC (2000) The Times August 31, 2000.

[14] Hackney LBC v Sareen [2003] EWCA Civ 351.

[16] R v Newham LBC ex parte Aguiar [2002] EWHC 1325 (Admin).

[17] R v Westminster CC ex parte Zaher [2003] EWHC 101, QBD.

[18] Pieretti v Enfield LBC [2010] EWCA Civ 1104.

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