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Alternatives to legal proceedings

This content applies to England

Alternatives to using legal proceedings when challenging local authority decisions.

Once a local authority notified the applicant of a decision it has reached on her/his homeless application, the applicant has 21 days to request an internal review.  If the review is unsuccessful, the applicant may appeal to the county court on a point of law. In addition, there may be other options available, including an informal reconsideration or a complaint to the Local Government and Social Care Ombudsman (LGSCO). Irrespective of which alternative option the applicant pursues, a request for an internal review should not be delayed in the hope that the local authority will change its mind.

Internal informal reconsideration

When a local authority reaches a negative decision, the applicant could request the authority informally re-examines that decision. This will often be appropriate where there is a fundamental flaw or defect in the decision-making, so that the ultimate decision is likely to be different. An example would be where a non-priority need decision has been made, but where evidence then comes to light that the applicant is pregnant. This informal reconsideration may have the advantage, for the authority, of saving time and the involvement of a more senior officer. For the applicant, a key advantage is that if the original decision is rescinded and if it is agreed that a new section 184 of the Housing Act 1996 decision will be made, the applicant then has time to gather evidence before the new decision is made and interim accommodation under section 188 will normally continue to be provided. Clearly this would not be appropriate in all situations, and should not be done in place of formally requesting a review. Advisers need to be sure that the authority has rescinded its decision, otherwise a review needs to go ahead.

Changes in circumstances

After an application has been made, there may be changes in a homeless applicant's circumstances. For example, a local connection may develop or a change in household size may occur.

If the decision has not yet been made, the new facts should be made known to the authority so that they can be considered.

If a decision letter has already been issued,[1] and if the new facts would be likely to affect the outcome, the new facts should be put to the authority in the course of a statutory review.

Sometimes, however, it is too late for the new facts to be considered. That will arise if the applicant is out of time to seek a review, or out of time to appeal a reviewed decision, or if the new facts arise after a review has already been carried out. In such cases a fresh application needs to be made based on the new facts and based on a change in circumstances.

Application by another person

In cases of intentional homelessness, as well as the applicant requesting a review of the original adverse decision, there is nothing to prevent another member of a household submitting her/his own application to the local authority. The application will have to be investigated in the usual way. In some cases, it has been held that the wife of the applicant had not become homeless intentionally, even though her husband was found to be intentionally homeless. Therefore, the authority had a duty to provide accommodation for the wife and her family, including the husband.[2] However, an adverse decision may be made if the authority can show that the second applicant acquiesced in the original applicant's actions.[3]

This approach should not be confused with the situation where the authority has already ended its duty, eg by making a suitable offer that was refused by the applicant. In such a case, the court has held that, in the absence of change of circumstances, the authority is not under a duty to entertain applications in turn from different members of the same household.[4]

Application to another local authority

As well as requesting a review of the original decision, it is generally possible for applicants to apply to more than one authority. In such situations, the second authority should make its own inquiries. For example, it is possible for a person who has been found intentionally homeless by one authority to then apply to another authority, which may find her/him not intentionally homeless and refer her/him back to the original authority for rehousing under the local connection procedures. When he second authority makes its decision on the application, it must take account of the reasons for the decision previously reached by the original authority.[5] However, if even in doing so it comes to a different decision, it may challenge that second authority only by way of judicial review.[6]

Although it is normally possible for a person to 'hop' from one authority to another, this is not possible where the first authority has made a reasonable offer of accommodation to discharge a duty that has not been accepted by the applicant.[7]

Complaining to the Ombudsman

The Local Government and Social Care Ombudsman (LGSCO) can investigate cases of injustice caused through maladministration in connection with actions or inactions by a local authority. See Local Government and Social Care Ombudsman (LGSCO).

In one case, where the local authority failed to notify the applicant of its decision to accept a full housing duty under the homelessness legislation, forced the applicant to accept an offer of unaffordable accommodation and subsequently removed him from social housing waiting list, the Ombudsman recommended the authority rectified the injustice by compensating the applicant and awarding him the highest priority on the waiting list for all eligible properties.[8] In another case, where the local authority refused to accept a homeless application from a survivor of domestic violence, apart from awarding financial compensation, the Ombudsman recommended the authority provided training to its staff in when a homeless application should be accepted.[9]

Complaining to the Ombudsman during the Covid-19 pandemic

On 29 June 2020 the Local Government and Social Care Ombudsman resumed existing casework and taking on new complaints. The LGSCO proceedings were temporarily suspended in March 2020 in response to the pandemic.

For more information about the impact of the Covid-19 pandemic on housing see the Coronavirus (Covid-19) and housing section on Shelter Legal.

[1] s.184 Housing Act 1996.

[2] R v Eastleigh BC ex parte Beattie (No.2) (1985) 17 HLR 168, QBD; R v West Dorset DC ex parte Phillips (1985) 17 HLR 336, QBD.

[3] R v Swansea CC ex parte John (1982) 9 HLR 56, QBD; R v Ealing LBC ex parte Salmons (1991) 23 HLR 272, QBD.

[4] R v Camden LBC ex parte Hersi [2000] CA, Legal Action October 2000; (2001) 33 HLR 114 QBD.

[5] R v Tower Hamlets LBC ex parte Camden LBC (1988) 21 HLR 197, QBD; R v Newham LBC ex parte Tower Hamlets LBC (1991) 23 HLR 62, CA;.

[6] R v Tower Hamlets LBC ex parte Camden LBC (1988) 21 HLR 197, QBD; R v Newham LBC ex parte Tower Hamlets LBC (1991) 23 HLR 62, CA.

[7] R v Hammersmith and Fulham LBC ex parte O'Brian (1985) 17 HLR 471, QBD.

[8] LGSCO complaint number 17 012 432 against Basingstoke and Deane Borough Council.

[9] LGSCO complaint number 18 005 370 against Oadby and Wigston Borough Council.

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