When to refer a homelessness case for judicial review

Judicial review is a legal challenge in the High Court of a decision made by a public body.

A local housing authority is a public body.

Judicial review considers how a decision has been reached, rather than whether the decision is necessarily correct. Remedies which might be available are:

• an injunction, which can prevent an illegal act or enforce the performance of a duty

• a quashing order, where the original decision is quashed and the public body has to make another decision

• a declaration, where the court declares the rights of the parties without making an order against the public body

Only some homelessness decisions are subject to judicial review.

Judicial review is not an option where a person has the right to an internal review of a homelessness decision. For example, decisions on whether someone is eligible, or the suitability of an offer under the main housing duty.

Refusal to accept a homeless application

Decisions subject to judicial review include where a local authority:

• refuses to accept a homeless application

• refuses to accept a reapplication on different facts

Accommodation duties

Decisions regarding accommodation duties subject to judicial review include where the local authority:

• refuses to provide interim accommodation or provides unsuitable interim accommodation

• refuses to provide accommodation pending internal review

• accommodates someone who is pregnant or has dependent children in bed and breakfast accommodation for longer than six weeks where no exception applies

• evicts someone from interim accommodation without reasonable notice

• refuses to make a fresh decision on suitability following a change in circumstances

Prevention and relief duties

Decisions regarding the prevention, relief duties and personalised housing plan which are subject to judicial review include where the local authority:

• fails to carry out an assessment of the applicant's needs or provide a personalised housing plan

• includes unreasonable steps for the applicant in a personalised housing plan

• fails to commence taking steps to prevent homelessness or relieve homelessness

• operates a blanket policy not to use its power to secure accommodation to prevent or relieve homelessness

• decides to refer to another authority at the relief stage, or chooses not to make a referral at any stage

Judicial review is only an option if there are grounds for challenging the decision.

Advisers considering making a referral need to identify what the grounds might be. The solicitor who takes on the case will make their own assessment of the merits.

Grounds for judicial review in homelessness cases include where an authority:

• ignores relevant factors

• takes into account irrelevant factors

• fails to follow statute law, case law or statutory guidance

• fails to give the applicant the benefit of the doubt

• fails to make findings of fact

• fails to give adequate reasons for its decision

• has fettered its discretion by operation a blanket policy

• delegates decision-making to an unauthorised body

• goes back on a legitimate expectation

• comes to a decision so unreasonable that no reasonable authority could have reached it

• breaches its statutory duties, including the public sector equality duty

• reverses the burden of proof or imposes too high a burden of proof on the applicant

There are steps advisers can take before making a referral which help the person and their solicitor with a judicial review.

Ask the local authority to confirm their decision in writing

Decisions subject to judicial review might not have a legal requirement for a written decision. In some cases, the absence of a written decision might form part of the grounds for judicial review.

Asking the local authority to provide confirmation of their decision in writing can:

• allow the local authority to reconsider their decision before a referral is made

• make the local authority aware that the person's next step is judicial review

• help the person and their adviser assess whether there are grounds for a judicial review by confirming the local authority’s reasoning

It is not always possible to get the decision in writing. Where the situation is urgent, it might be best for a referral to be made to a solicitor as soon as possible.

Consider a pre-action letter

A pre-action letter should be sent before a judicial review application is formally started.

This is usually the first step a solicitor takes. In some cases, it might be appropriate for the homeless applicant or their adviser to send a pre-action letter, for example if it is urgent and the solicitor agrees.

Find out more about the pre-action protocol for judicial review and download a template pre-action letter via gov.uk: Pre-Action Protocol for Judicial Review - Civil Procedure Rules (justice.gov.uk)

An application for judicial review can be expensive. In many homelessness cases, a homeless applicant will need assistance under legal aid funding to pursue their claim.

Judicial review is homelessness cases is in scope for legal aid if the person is financially eligible.

Someone considering making a referral to a solicitor should check if a person is likely to qualify for legal aid. Any solicitor opening a legal aid funded case will confirm the if the person is financially eligible.

The person should be advised to have their financial information ready, such as proof of benefits and bank statements, to make it easier for the solicitor to complete their checks.

Passporting benefits

A person is financially eligible for legal aid if they are in receipt of certain benefits, known as ‘passporting benefits’.

Passporting benefits include:

• Income Support

• income-based Jobseeker’s Allowance

• Universal Credit

• Guarantee Credit element of Pension Credit

• income-related Employment and Support Allowance

Calculate financial eligibility

If the person is not receiving a passporting benefit, they might still be financially eligible for legal aid. It depends on their income and capital.

Check if someone can get legal aid via gov.uk: Check if you can get legal aid - GOV.UK (www.gov.uk)

Check if the application is within the time limit for a judicial review application.

An application must be brought as soon as possible and in any event within three months of when the grounds to make the claim first arise.

In most homelessness cases, action needs to be taken quickly after the grounds for judicial review arise, so applications are often within the three month time limit.

A late application might be allowed if the claimant can show good reason for the delay.

Search for a legal aid solicitor to make a referral to on gov.uk: Find a legal aid adviser or family mediator (justice.gov.uk)

The solicitors need to know:

• the circumstances of the case

• the grounds for a potential judicial review

• whether the person is financially eligible

The firm should confirm if they have capacity to take the case.

Solicitors firms will have to do their own checks on the person's financial eligibility and the merits of the case before taking action. The person should ensure they have their financial information ready.