This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Accommodation during challenge

This content applies to England

Accommodation during a challenge to a local authority's decision.

An authority will have a power, and in one case a duty, to accommodate pending challenge to its decision.

Accommodation pending internal review

Where an applicant requests of a decision made by a local authority, there will normally be a power rather than a duty to accommodate. There is one case, however, in which interim duty will continue.

Where interim duty continues

Where the review concerns suitability of a final accommodation offer or final part 6 offer made under the relief duty, interim duty will continue until the review is concluded and the applicant has been notified of the outcome.[1] There should be no need to make a further request for accommodation from the authority.

All other cases

Where the review is of suitability of other accommodation (for example, of a private rented sector offer) or of another matter (for example an intentional homelessness decision) interim duty will end when the applicant has been notified of the duties owed and, if the applicant is in priority need, relief duties have been carried out.[2] However, there is a power to provide accommodation pending a review decision.[3]

Where accommodation pending review is sought, it should be requested as soon as the review request is made.

Factors in use of discretion

In deciding whether to exercise discretion to provide accommodation pending a review, a local authority should take account of:[4]

  • the strength or weakness of the review case - this should include consideration of matters of which the authority were informed before the original decision but did not investigate[5]
  • any new material provided at review stage which may have a real effect on its outcome - even if the original review was lawful, failing to consider new evidence may lead to an unlawful decision around accommodation pending review[6]
  • the personal circumstances of the applicant and the consequences of an adverse decision.

Some people from abroad may not be eligible for accommodation pending a review (see below).

Accommodation pending appeal to the county court

Where a review decision is negative and an applicant appeals to the county court, there is a further power (but not a duty) to accommodate pending the appeal.[7] The authority should take into account the same factors as with a decision on accommodation pending review.[8] If the applicant has served the authority with grounds of appeal, these must also be considered.[9]

If the authority decides not to provide accommodation, or provides it only for a limited period ending before the determination of the appeal, then this can be challenged by:

  • appeal to the county court where the appeal is against a review decision[10]
  • judicial review where the appeal is against an original decision because a review decision has not been has not been made within the required time.[11]

In either case, the applicant must raise a point of law (see When can an appeal be used). An appeal against a decision not to provide accommodation should be brought in the same Appellant's Notice as the main appeal where possible and where not a separate Appellant's Notice should be used.[12] Normally, because of the length of time it will take to deal with the appeal against the refusal to provide accommodation pending appeal, it will be necessary to apply for an injunction at the same time.

Some people from abroad may not be eligible for accommodation pending a county court appeal (see below).

What the court may decide

At county court: Where an appeal has been brought against a review decision and the refusal to provide accommodation pending appeal is being challenged at county court, the court may confirm or quash the authority's refusal, based on the principles applied by the High Court in judicial review .[13] It may also order the authority to secure that accommodation is available pending the appeal against the refusal.[14] If the court quashes the refusal to provide accommodation pending the main appeal, it can order the authority to provide accommodation until any point up to (but not beyond) the court's decision on that issue.[15]

On Judicial review: In a case where the appeal is against a refusal to accommodate pending judicial review, because the main appeal arises in a case where the authority failed to issue its review decision in time, the court can make various orders described in judicial review procedure. These include orders which could compel the authority to provide accommodation pending the appeal.

It is important to note that the court will be very reluctant to interfere with a local authority's exercise of discretion, and an applicant challenging a refusal to provide accommodation has a very high threshold to get over.[16]

Accommodation pending appeal to the Court of Appeal

Where an applicant's county court challenge is unsuccessful and s/he appeals further to the Court of Appeal, the Court of Appeal does not have the jurisdiction to confirm or quash any decision of the local authority to refuse temporary accommodation pending that appeal. The applicant's only remedy in this circumstance would be to seek judicial review of the authority's decision.[17]

People from abroad not eligible for accommodation during a review or county court appeal

An applicant will not be eligible for accommodation pending a review or county court appeal if s/he:[18]

  • has refugee status abroad (this refers to non-EEA nationals who have refugee status in another EEA state)
  • has nationality of an EEA state other than the UK
  • is a failed asylum seeker who fails to co-operate with removal instructions issued in respect of her/him or (if with family) has at least two weeks previously received notification from the Home office that s/he has failed to take reasonable steps to leave the UK without reasonable excuse
  • is a dependant of any of the above
  • a person who is in the UK in breach of immigration laws and is not an asylum seeker.

However, this does not prevent the exercise of powers to accommodate pending a review or appeal where not to do so would breach the applicant's rights under the European Convention on Human Rights.[19] Where the person is a failed asylum seeker or in the UK in breach of immigration laws, and the powers to secure accommodation pending review or appeal may apply, the local authority must inform the Secretary of State by contacting the Home Office.[20]

Accommodation following successful appeal to the county court

If on appeal the county court decides to quash the decision of the authority, then the authority may be subject to a duty to provide temporary accommodation.

If the decision that has been quashed is that made by the authority on review, the original section 184 decision stands. Since this decision was presumably negative (which is why it was reviewed in the first place), the local authority should be asked to provide temporary accommodation, pending the fresh review, in exercise of its discretionary powers (see above).[21]

If, however, the section 184 decision is quashed (because a review decision was not made in time), the local authority will be under a duty to provide interim accommodation until the fresh decision is made.[22]

Accommodation pending judicial review

If the High Court grants permission for judicial review, then it usually grants an injunction to enable the applicant to be accommodated pending the outcome of the full proceedings.[23]

It is important that the applicant, and any person acting for her/him, make a full and frank disclosure to the Court. The duty extends to factual and legal material which may be, or is, adverse to the applicant and means specifically identifying all relevant documents for the Court, taking it to particular passages in the relevant documents and taking appropriate steps to ensure that the Court appreciates the significance of what it is being asked to read. Non-disclosure, or incomplete disclosure, is a gross abuse of the Court's discretion to order interim relief and in one case,[24] this led to the discharge of an injunction against a local authority to provide accommodation pending the outcome of an appeal.

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] s.188(2A) Housing Act 1996 as added by s.5(4)(a) Homelessness Reduction Act 2017.

[2] s.188(1ZA) and s.188(1ZB) Housing Act 1996 as added by s.5(4)(a) Homelessness Reduction Act 2017.

[3] s.188(3) Housing Act 1996, as substituted by s.5(4) Homelessness Reduction Act 2017.

[4] R v Camden LBC ex parte Mohammed (1997) 30 HLR 315, QBD.

[5] R v Newham LBC ex parte Lumley (2001) 33 HLR 124.

[6] R (on the application of Barrett) v Westminster CC [2015] EWHC 2515 (Admin).

[7] s.204(4) Housing Act 1996; R (on the application of Faizi) v Brent LBC [2015] EWHC 2449 (Admin).

[8] R v Camden LBC ex parte Mohammed (1997) 30 HLR 315, QBD, R v Brighton and Hove BC, ex parte Nacion (1999) 31 HLR 1095.

[9] Lewis v Havering LBC [2006] EWCA Civ 1793.

[10] s.204A(2) Housing Act 1996; para 15.31 Homelessness Code of Guidance, MHCLG, Feb 2018.

[11] Davis v Watford BC [2018] EWCA Civ 529.

[12] Civil Procedure Rules Practice Direction 52D para 28.1(1) and 28.1(2).

[13] s.204A(4) Housing Act 1996.

[14] s.204A(4)(a) Housing Act 1996.

[15] s.204A(5) and s.204A(6) Housing Act 1996.

[16] R v Brighton and Hove BC, ex parte Nacion [1999] EWCA Civ 688.

[17] Johnson v Westminster CC [2013] EWCA Civ 773.

[18] s.54 and Sch.3 Nationality, Immigration and Asylum Act 2002; para 15.24 Homelessness Code of Guidance, MHCLG, Feb 2018.

[19] para 15.24 Homelessness Code of Guidance, MHCLG, Feb 2018; R (on the application of N) v Greenwich LBC [2016] EWHC 2559 (Admin).

[20] para 14, Sch.3, Nationality, Immigration and Asylum Act 2002; paras 7.23 and 7.24 Homelessness Code of Guidance, MHCLG, Feb 2018.

[21] s.188(3) Housing Act 1996.

[22] s.188(1) Housing Act 1996.

[23] R v Cardiff CC, ex parte Barry (1989) 22 HLR 261, CA;  R (on the application of N) v Greenwich LBC [2016] EWHC 2559 (Admin).

[24] R (on the application of Konodyba) v Kensington and Chelsea LBC [2011] EWHC 2653 (Admin).

Back to top