Accommodation during a review or appeal of a homelessness decision

Where an applicant requests a review of a local authority decision, there will normally be a power rather than a duty to accommodate. There is one circumstance when interim duty continues.

Where interim duty continues

Where the review concerns the suitability of a final accommodation offer or final part 6 offer made under the relief duty, the interim duty to accommodate continues until the review is concluded and the applicant has been notified of the outcome.[1] The applicant does not need to make an additional request for accommodation from the authority.

All other cases

Where the review is of the suitability of other accommodation (for example, of a private rented sector offer) or of another matter (for example an intentional homelessness decision) the interim duty to accommodate ends 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]

The local authority has the power to provide accommodation pending the outcome of a review decision.[3]

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

Factors in the use of discretion

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

• the strength or weakness of the review case 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 that 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[7]

• whether the applicant has had the chance to give additional information about their application when most of the information has come from third parties[8]

Some people from abroad may not be eligible for accommodation pending a review.

Where a review decision is negative and an applicant appeals to the County Court, there is a power (but not a duty) to accommodate pending the appeal.[9] The authority should take into account the same factors as with a decision on accommodation pending review.[10] If the applicant has served the authority with grounds of appeal, these must also be considered.[11]

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[12]

• 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[13]

In either case, the applicant must raise a point of law. 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.[14] 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.

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 .[15] It may also order the authority to secure that accommodation is available pending the appeal against the refusal.[16] 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.[17]

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.[18]

Where an applicant's county court challenge is unsuccessful and they appeal 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.[19]

There are some people from abroad who are not eligible for accommodation pending the outcome of a review or appeal. These are:

• a person who has refugee status in another country outside the UK[20]

• a former asylum seeker who has failed to cooperate with removal directions[21]

• a person who is not an asylum seeker who is in the UK in breach of immigration laws[22]

• certain failed asylum seekers with dependent children where the Secretary of State has certified that they have failed without reasonable excuse to take steps to voluntarily leave the UK[23]

Local authorities can only accommodate a person in one of these groups pending a review or appeal where it is necessary to avoid a breach of their human rights under the European Convention.[24] In practice many people in these groups will not be eligible for homelessness assistance.

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.[25]

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.[26]

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.[27]

It is important that the applicant, and any person acting for them, 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,[28] this led to the discharge of an injunction against a local authority to provide accommodation pending the outcome of an appeal.

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