Angela Lewis, R (on the application of) v London Borough of Southwark

BENJAMIN DOUGLAS-JONES KC : Introduction

1. The Claimant resides at 7 Millpond Estate, West Lane London, SE16 4NA (“7 Millpond Estate”). She accordingly lives in the Defendant’s local housing authority (“LHA”) area.

2. The Claimant applies for a judicial review of a purported decision made or recorded in an email of 15 November 2024. The Claimant’s case is that on that date the Defendant made a decision that the Claimant had not made a homelessness application almost 12 years earlier, in March 2012.

3. Permission to apply for a judicial review was initially refused on the papers by His Honour Judge Auerbach, sitting as a Judge of the High Court on 20 March 2025. The Claimant proceeded before me with permission having been granted by Mrs Justice McGowan DBE following an oral hearing of her renewed application for permission on 22 May 2025.

4. Two grounds for review are advanced; they concern the Claimant’s request for accommodation in March 2012: (i) first, the Defendant is alleged to have erred in failing to accept that a homelessness application under Part 7 of the Housing Act 1996 (“ the 1996 Act ”) was made in March 2012; and (ii) second, the Defendant is said further to have erred in failing to find that it was subject to a duty under s. 193 , 195 or 188 of the 1996 Act .

5. All references to statute in this judgment (unless otherwise expressly stated) are references to the 1996 Act .

6. It was agreed between the parties that the following issues fell to be considered: (i) first, whether the Defendant’s email of 15 November 2024 (“email 1”), which the Claimant characterises as having been “maintained” on 22 November 2024 (in a second email, “email 2”) and “clarified” on 6 February 2025 (in a third email, “email 3”) is a target susceptible to challenge by way of judicial review; (ii) second, whether the actions of the Claimant in March 2012 were sufficient to amount to a further application under Part 7 of the 1996 Act ; (iii) third, whether the evidence objectively justified that a further application under Part 7 had been made; (iv) fourth, if so, whether the Defendant, through its decision in email 1, as maintained and clarified in emails 2 and 3, respectively, failed lawfully to consider: (a) whether it was entitled to treat the application made in March 2012 as no application because there were no new facts; or (b) whether it owed the Claimant the main housing duty under s. 193 ; and (v) fifth, if (iv)(b), above, applies, whether that decision should be reached on the basis of her circumstances at the time of making the application in 2012. Facts Claimant’s housing history

7. In 2007 the Claimant made a homelessness application. This led the Defendant to accept the main housing duty under s.193 (see below), as the Claimant was then in priority need, being a person with whom dependent children resided. The Defendant provided the Claimant with accommodation at 40A Denmark Hill, London, SE5 8RZ (“40A Denmark Hill”) in performance of that duty. According to a “Housing List Application Form,” signed, dated and received by the Defendant on 8 March 2012 (“the Housing List Application Form”), she moved into 40A Denmark Hill on 28 July 2008.

8. Over the years, the Claimant had experienced significant mental health challenges. She suffers from bipolar affective disorder, which required her to be hospitalised in 2009.

9. In 2010, the Claimant was joined at 40A Denmark Hill by her ex-husband.

10. In September 2011, the Claimant was made a “direct offer” of accommodation at 72 Swan Mead, London, SE1 4SX (“72 Swan Mead”) in discharge of the main housing duty. She refused that offer. The Claimant sought a review of the suitability of 72 Swan Mead for her and her family, pursuant to s.202. The review upheld the Defendant’s decision that it had discharged its duty to the Claimant. She did not invoke her right to appeal to the County Court on a point of law under s.204.

11. It is necessary to focus for a moment on the detail of these events.

12. The Defendant’s records show that following the offer of accommodation at 72 Swan Mead, on 14 September 2011, the Claimant's husband, Mr Khan, telephoned to say he would be collecting “… an appeal form to appeal against [the Claimant’s] direct offer of 72 Swan [M]ead,” complaining that the property was “dirty and damp.” The entry for 22 September 2011 states, “appeal against 72 Swan Mead rejected.”

13. Following this, on 27 September 2011, an officer of the Defendant telephoned the Claimant to “… advise her that she needed to accept her direct offer after losing her appeal or she would be faced with a discharge of duty.” The entry states that the Claimant “… was not pleased to be contacted …” and was upset. She reported that she had bipolar disorder and became “very distressed” during the call. Two days later, on 29 September, Mr Khan telephoned the Defendant again, advising that the Claimant “… would not be accepting the direct offer of 72 Swan Mead and that she would be submitting a [section] 202 Review,” and stating that the Claimant’s medical needs warranted lift access.

14. The Defendant decided that the main housing duty owed to the Claimant had ended. On 12 October 2011, the Claimant made the request for a s.202 review.

15. The 6 December 2011 entry noted that the Claimant’s temporary accommodation at 40A Denmark Hill was to be cancelled further to the decision that the main housing duty had ended . On or before 8 December 2011, an internal email was sent to cancel the temporary accommodation being provided for the Claimant.

16. Following the s.202 review the decision that the main housing duty had ended was upheld.

17. In or around March 2012, the Claimant then re-approached the Defendant for assistance in relation to housing. She was seen on 6 March 2012. The Defendant’s record for that date reads: “Client seen on Managers Prebooked appt for an advice and assistance interview. Client was a former accepted HL [homelessness] case who was added to the DO [Direct Offer] list. Refusal of a DO led to DOD [discharge of duty]. Advice and assistance given. Referrals to FFS [Finders’ Fees Scheme] and Procurement to be made when client submits docs.”

18. The Defendant’s Finders’ Fees Scheme was a free tenant-finding service for landlords who partnered with the LHA’s Housing Solutions Department to house people in need. Landlords who participated received a cash incentive payment.

19. As recorded above, a Housing List Application Form was received by the Defendant on 8 March 2012. In that application, the Claimant recorded that the 40A Denmark Hill tenancy was due to end on 1 April 2012.

20. Before that date, the Defendant arranged for accommodation to become available to the Claimant: she entered into a weekly periodical assured shorthold tenancy in respect of 7 Millpond Estate with Hyde Housing Authority (“Hyde”) beginning on 26 March 2012.

21. The relationship between the Defendant and Hyde was governed at the time by a “nominations agreement,” dated 5 April 2011: “[r]elating to the leasing and management of various properties within the London Borough of Southwark for the purpose of providing temporary accommodation and prevention of homelessness for households nominated by the London Borough of Southwark.”

22. The nominations agreement defined “homelessness prevention” as: “Where a household approaches the Council and is threatened with homelessness. The provision of an assured shorthold tenancy of a minimum of twelve months prevents homelessness to be given providing no breaches of tenancy occur.”

23. On 4 April 2014 the Defendant’s housing registrations manager wrote to the Claimant in these terms: “ Your current application on our Homesearch bidding system lists you as a tenant of social housing accommodation where you hold an Assured tenancy. Assured tenants who are under occupying social housing are entitled to band one [the highest housing priority group] in accordance with our current lettings policy. However further to a recent review of your application we have discovered the current tenancy you hold at 7 [Millpond] Estate is an Assured Shorthold tenancy managed by Hyde Housing Association. This accommodation was issued in order to prevent your household becoming homeless and is not social housing where your household would be entitled to the extra priority. As a result of this information coming to light, your Smart move priority band one has been removed. Your application has now been [reassessed] and your application has been registered in band four” [reproduced with original emphasis].

24. In 2014 the Claimant suffered a bipolar affective disorder episode, which she attributed to the receipt of negative news about her housing situation.

25. On 29 May 2015, Notting Hill Housing Genesis (‘NHG’) wrote to the Claimant to inform her that NHG had acquired “all temporary housing units from [Hyde]” effective from 1 June 2015.

26. On 6 November 2022 the Claimant made a homelessness application after NHG served the Claimant with a s.21 notice seeking possession of 7 Millpond Estate on the basis of the expiry of the superior lease.

27. On 9 March 2023 NHG issued possession proceedings. That claim was dismissed when NHG failed to attend the possession hearing.

28. Following the service of further s.21 notices in January and March 2024, the Claimant approached the Defendant again. The Defendant accepted that it owed a duty to the Claimant to prevent homelessness pursuant to the Claimant’s 2024 application.

29. The Claimant remains at 7 Millpond Estate. Her landlord discontinued the most recent possession proceedings apparently due to the claim having been brought too late.

30. The Defendant made a decision on 24 January 2025 to end the Claimant’s prevention duty under s.195. A review decision of 18 June 2025 upheld that decision. The Claimant appealed against the review decision to the County Court under s.204, prompting the parties to agree that the Defendant would effect a fresh statutory review within 56 days and that the appeal would be dismissed by consent. The purported decision

31. Although the Claim is predicated on the Defendant having made a decision on 15 November 2024, as foreshadowed in paragraph 6(i) above, Mr Marshall Williams advanced the Claimant’s case on the basis that it was necessary to look at the combined import of emails 1, 2 and 3 of the Defendant, as well as the statutory context. In order properly to analyse the Defendant’s three emails, it is necessary to consider the relevant interleaving correspondence of the Claimant’s solicitors.

32. On 14 November 2024, the Claimant’s solicitor, Thea Grattidge, wrote to Mario Toraldo, an officer of the Defendant in these terms: "We write further your letter dated 12 June 2024, which accepted that Ms Lewis-Khan is owed the prevention duty pursuant to s195(2) of the Housing Act 1996 . We write also further to your email correspondence dated 18 October 2024 which confirms that Ms Lewis-Khan’s landlord, [NHG], intends to continue to pursue possession of her temporary accommodation. Please see the attached letter which asks that Ms Lewis-Khan and her daughter Nikeisha Alexander are provided alternative suitable temporary accommodation as a matter of urgency.”

33. Through the letter attached to that email the Claimant’s solicitors advanced legal submissions to the effect that the Defendant owed the Claimant the main housing duty under s.193 . They asserted that a homelessness application had been made in March 2012, at which time the Claimant was in priority need with two dependent children: the main duty arose then and had never been lawfully discharged, as the Claimant had received no written confirmation to the effect that it had been. The solicitors set out that 7 Millpond Estate, which she had by the date of the letter occupied for over 12 years, was temporary accommodation provided in pursuance of that initial duty.

34. In the alternative, the solicitors argued that, should the Defendant contend that no final decision had been made in respect of the 2012 application, this would constitute an unlawful failure to determine the matter. The solicitors submitted that the Defendant should therefore determine the application in November 2024, based on the Claimant’s circumstances in 2012 (which would have established a priority need). In order to substantiate the claim that 7 Millpond Estate was temporary accommodation, the letter referred to the original 2012 tenancy agreement and correspondence from NHG purporting to confirm that 7 Millpond Estate was “temporary” accommodation.

35. Through the letter the solicitors emphasised that an urgent response was warranted because NHG was actively pursuing possession of 7 Millpond Estate, having served several s.21 notices on the Claimant. The solicitors made several demands of the Defendant on behalf of the Claimant: the immediate provision of suitable alternative accommodation; an amendment of the Claimant’s Housing Register status; and the disclosure of the Claimant’s 2012 housing file within seven days to allow for further representations to be marshalled. Within the letter the solicitors set out: “If the local authority intends to argue that it did not make a decision as to whether the main housing duty was owed to [the Claimant] in 2012, we request that this decision is now made and that the main housing duty is accepted. As per the principles in Robinson v Hammersmith [and Fulham] LBC [2006] EWCA [Civ 1122] the main housing duty should be accepted having considered his [sic] circumstances as they were in 2012 when the application was made. At this time, Ms Lewis-Khan had dependent children and was in priority need.”

36. In email 1 (of 15 November 2024, timed 10:13 hours), Mr Toraldo wrote to Ms Grattidge in the following terms: “There are some mistakes in the letter you wrote which I will clarify below. [The Claimant] is currently renting an Assured Shorthold Tenancy, I can confirm that she is not an accepted homelessness case and no main housing duty is [owed] to her. [The Claimant] approached Southwark Council in June 2024 following receipt of a S21 notice (dated 14th March 2024). The notice appears no longer valid and there is no indication that the case is progressing to court. Previous attempts to gather possession of the property by the housing provider failed as no one attended the hearings. Have you got evidence that a new S21 notice has been issued? If not, have you got evidence that the case is progressing to Court? If yes, please share the evidence. If there is no updated evidence (the one you provided refer to old hearings) I am minded to close the prevention duty as more than 56 days have passed and the S21 is no longer valid. Clearly, if a new S21 notice has been issued, I will continue to support the client. Thanks for your assistance, please – if available - share the required evidence at your earliest opportunity but no later than Friday 22nd November.”

37. The Claimant’s solicitors replied at 17:11 on the same day by an email of Ms Grattidge to Mr Toraldo reasserting that the Claimant’s accommodation was temporary, provided as a result of her March 2012 homeless application. Ms Grattidge relied on the tenancy agreement being marked “temporary housing,” and on confirmation from NHG, who also described the arrangement as temporary. The Claimant’s solicitors invited the Defendant to produce evidence to the contrary, requesting a copy of the nomination agreement between the LHA and NHG that facilitated the tenancy.

38. The solicitors articulated two distinct legal arguments as to why it was said that the Claimant was then (in 2024) homeless. First, the first argument raised in the letter of 14 November was repeated: the Claimant was already legally homeless because she occupied temporary accommodation and the main housing duty from the 2012 application had never lawfully been discharged. In the alternative, second, it was not reasonable for the Claimant to continue to occupy 7 Millpond Estate due to NHG’s repeated attempts to gain possession, which action was said to be having a serious negative impact on the health of the Claimant and her daughter. The email concluded with the assertion that if the Defendant continued to deny that a housing duty was owed, it must formally make a decision on the original 2012 application, reminding the Defendant that it could not benefit from what the Claimant’s solicitors characterised as its own “unlawful failure” to act for over a decade. The correspondence requested that the matter be escalated to a manager in one of two internal teams and warned that an insufficient response would lead to a legal challenge.

39. This was followed up with a further email from Ms Grattidge to Mr Toraldo on 21 November 2024, requesting the Claimant’s housing file. It included this: “ … please confirm when we can expect to receive a substantive response to our letter of 14 November and email below.”

40. Email 2 (22 November 2024) was sent by Mr Toraldo in these terms: “[1.] So, I looked further into the applicant’s historical housing/homelessness applications and crosschecked the information with different teams. The findings are in line with the information I already provided you with before. However, I will try to clarify things further. [2.] [The Claimant] used to be an accepted homelessness case from around 2008 up to 2011 (if you require the exact dates, I will provide them). … Then in December 2011 the main housing duty was discharged as the applicant refused a suitable direct offer. The applicant had tried to appeal the decision, but the review team upheld the discharge of duty. There are clear notes on the system saying that the applicant was notified of the duty being discharged and the decision being upheld at review stage in December 2011. [3.] Despite the duty being discharged and the request to leave, the applicant continued to occupy the TA [temporary accommodation] at 40a Denmark Hill, Camberwell, London, SE5 8RZ even after December 2011. Finally, we prevented homelessness by offering an “assured shorthold tenancy” with Hyde Housing at 7 Millpond Estate, SE16 4NA. These properties were hard-to-let properties which the housing association was making available as if they were private sector tenancies. They were NOT temporary accommodations, provided to fulfil duties with accepted cases. This has been carefully double and triple checked. [4.] Once moved into the 3-bedroom property [the Claimant] approached the local authority requesting to downsize. This request caused some confusion, as the applicant was initially thought mistakenly to be an assured applicant and given a SMART MOVE priority. This mistake was rectified in April 2014 …. [5.] So, to summarize. [The Claimant] is not own [sic] a main housing duty. She is just an assured shorthold tenant and continues to have the right to occupy the current accommodation. The landlord will need to follow S21 process to gain possession of the property. At the moment the S21 issued at the beginning of the year is no longer valid. …”

41. By emails of 27 November and 13 December 2024, Ms Grattidge formally requested disclosure of the Claimant’s “complete housing file,” correspondence and policy or guidance relating to the “SMART MOVE” priority (a scheme for council or housing association tenants with one or more spare bedrooms, whereby the tenant moves to a smaller, cheaper home and may receive a financial incentive for doing so). Mr Toraldo responded to the effect that he needed to check the Defendant’s protocol for giving information.

42. By a further email of 19 December 2024 Ms Grattidge rehearsed the solicitors’ submissions as to the Claimant’s status, concluding with: “For the reasons stated above she is already homeless, and an abundance of evidence has already been provided to support that position. In any event, to lawfully end the prevention duty s195 of the Housing Act 1996 requires that the decision be put in writing, stating the reason for ending the duty, and informing the applicant of their right to request a s202 review of the decision. Please provide a copy of that decision.”

43. Through Email 3 (12:16 hours on 6 February 2025) Ms Janet Oduyoye, a solicitor employed by the Defendant, wrote to Ms Grattidge as follows: “A homelessness application cannot be assumed[.] In the absence of any evidence from you that your client lodged a homelessness application in 2012, the local authority maintains [its] stance that your client did not submit a new homelessness application after the housing duty was discharged. She did not lodge a homelessness application in 2012[.] All discharge of duty letters and review decisions strongly advise applicants to seek independent legal advice[.] The local authority cannot be faulted for your client’s failure to seek independent legal advice after the local authority discharged the housing duty[.] There are typo errors in your letter with regards to the date your client moved into her current Property[.]” Legal framework Part 7 of the Housing Act 1996

44. Before turning to Part 7, it is necessary to note that Part 6 of the 1996 Act concerns “Allocation of Housing Accommodation”. It makes provision for procedures to be complied with when housing authorities are allocating council housing. Part 7 concerns “Homelessness” and sets out the duties which housing authorities must discharge in relation to homeless persons in their areas. This case concerns the statutory framework as it applied in 2012. The relevant provisions of Part 7 and the way in which they then operated may be summarised as set out below. The changes to s.188 since 2012 are sufficiently material that it warrants my summarising them, so that the historical position may be understood in context. I use the past tense to emphasise that the analysis which follows relates to the statute as it then applied.

45. Section 175 provided that a person was homeless if he had no accommodation available for his occupation which he was entitled to occupy by virtue of an interest in it, a court order, a licence to occupy, or which he occupied as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. This was qualified by subs. (3), which mandated that a person would not be treated as having accommodation unless it was accommodation which it would be reasonable for him to continue to occupy. Subsection (4) provided that a person was “threatened with homelessness if it [was] likely that he [would] become homeless within 28 days.”

46. By s.179, LHAs had a duty to “… secure that advice and information about homelessness, and the prevention of homelessness, [was] available free of charge to any person in their district” and a LHA could also assist any such person by “permitting him to use premises belonging to the authority….”

47. By s.183, the provisions of Part 7 applied where “a person [applied] to a local housing authority for accommodation, or for assistance in obtaining accommodation” and “the authority [had] reason to be believe he [was] homeless or threatened with homelessness”. In R v Tower Hamlets London Borough Council, Ex parte Ferdous Begum [1993] QB 447 at 460F-H Lord Donaldson of Lymington MR explained how the duties of a LHA were engaged in relation to the precursor section to s.183: “In my judgment section 62(1) of the [Housing Act 1985- the equivalent provision to s.183 of the 1996 Act ] contains a double-barrelled threshold or precedent question of fact which has to be answered in the affirmative if the local housing authority's duties under Part III of the Act are to come into force. The first part of this question is whether a person has applied to it for accommodation in the sense which I have indicated. The second part is whether the authority have reason to believe that he may be homeless or threatened with homelessness. … The intention must have been that an objective test should be applied. The authority's decision on both aspects of this threshold question therefore falls to be reviewed not on Wednesbury principles but on Khawaja principles —does the evidence justify the conclusion: see Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 74 , 105D, per Lord Wilberforce. ”

48. Staughton LJ agreed at page 461C to D, setting out: “If the authority has concluded that no application was made, it will be for the courts to decide whether the authority was right.”

49. In R v Chiltern DC ex p Roberts (1991) 23 H.L.R. 387 at 392, it was held that an application does not need to be in a particular form, rejecting a submission that an application had not been made. Where an application is made for housing accommodation under Part 6 and the LHA has reason to believe that the applicant is threatened with homelessness, that is sufficient to trigger the LHA’s obligations under Part 7; see Bury Metropolitan Borough Council v John Gibbons [2010] EWCA Civ 327 ; [2010] HLR 33 at [31] and [32], per Jackson LJ, as applied recently in R (oAo Daisy Simpson) v Brentwood Borough Council and Essex County Council [2025] EWHC 462 (Admin) at [22] and [28], by MacDonald J; further, as set out in the Homelessness Code of Guidance for Local Authorities, information provided for a Part 6 allocation which gives an authority "reason to believe" an applicant may be homeless should be regarded as an application under Part 7: “Form of an application 18.5 Applications can be made to any department of the local authority and expressed in any particular form; they need not be expressed as explicitly seeking assistance under Part 7. As long as the communication seeks accommodation or assistance in obtaining accommodation and includes details that give the housing authority reason to believe that they might be homeless or threatened with homelessness, this will constitute an application. 18.6 Housing authorities should take particular attention to identify instances where information on an inquiry about a social housing allocation scheme, or an application for an allocation of housing under Part 6, provides reason to believe that the applicant might be homeless or threatened with homelessness. This should be regarded as an application for homelessness assistance.”

50. Section 184 provided that if the LHA had “… reason to believe that an applicant [might] be homeless or threatened with homelessness, they [were to] make such inquiries as [were] necessary to satisfy themselves … whether he [was] eligible for assistance”, and, if so, whether any (and, if so, what) duty was owed to the applicant under Part 7. In R v Rugby Borough Council, Ex parte Hunt (1994) 26 H.L.R. 1, at page 8, per Hutchison J, it was held that the duty to make inquiries as to eligibility for assistance and any duty owed (now under Part 7 of the 1996 Act , and in 2012 under s.184 ), did not arise until “… the authority has reason to believe that the applicant may be threatened with homelessness – and that harks back to the [statutory] definition.” In R (Edwards) v Birmingham City Council [2016] EWHC 173 (Admin) , Hickinbottom J (as he then was) held at [42] that not every complaint about a person’s current accommodation requires an authority to make inquiries under s.184 . Until the LHA had reason to believe that the statutory duty might arise, the threshold had not been passed and there was no obligation on the LHA to assist the applicant.

51. In March 2012, if the LHA had reason to believe that an applicant was homeless, eligible for assistance, and had a priority need for assistance, it was subject to the interim duty to accommodate under s.188(1). This duty required the LHA to take immediate action to secure that accommodation was available for the applicant’s occupation. The purpose of this accommodation was to provide a safety net for an applicant pending the LHA’s final decision as to what, if any, longer-term duty was owed to him under the Act (e.g., the main housing duty under s.193 ). This interim duty continued until it was brought to an end. Under the law as it stood in 2012, s.188(3) specified that the duty ceased “when the authority’s decision [was] notified to the applicant.” “Priority need for accommodation” was defined in s.189 as applying to applicants with whom dependent children lived or might reasonably have been expected to live and to applicants who were vulnerable as a result of mental illness.

52. The current version of s.188 has undergone substantial changes since 2012: new duties were introduced by the Homelessness Reduction Act 2017 . The position now is that, as in in 2012, the LHA immediately comes under the interim duty to accommodate under s.188(1). The authority must secure that suitable accommodation is available for the applicant’s occupation. This duty still acts as an immediate safety net to prevent street homelessness. The major change is that in addition to providing accommodation under s.188, the LHA now also comes under a new, parallel duty known as the "relief duty" under Section 189B. This requires the LHA to take reasonable steps to help the applicant secure suitable accommodation that will be available for at least six months. This relief duty lasts for 56 days. The s.188 duty to accommodate and the s.189B duty to relieve homelessness run concurrently. The interim duty under s.188 no longer simply ends upon notification of the final decision. Its duration is now expressly linked to the new relief duty. S.188(1ZB) states that the interim duty comes to an end on the later of the date the relief duty (s.189B) comes to an end (e.g., after 56 days have passed, or if the applicant finds accommodation); or the date the authority notifies the applicant of its final decision as to what longer-term duty (if any) it owes them (e.g., the main housing duty under s.193 ). This ensures the applicant remains accommodated throughout the entire 56-day relief period and until a final decision is made. If, at the end of the 56-day relief period, the applicant is still homeless and the authority is satisfied that they have a priority need and are not intentionally homeless, the LHA will then come under the full "main housing duty" under Section 193 to secure accommodation for them.

53. Section 190 applied where a LHA was satisfied that an applicant was homeless and eligible for assistance but became homeless intentionally. Where the applicant had a priority need, the authority had to secure accommodation for a period it considered sufficient to give the applicant a reasonable opportunity to secure his own accommodation. Additionally, the LHA had to provide advice and assistance. Where the applicant had no priority need, the LHA’s duty was limited to providing advice and assistance; there was no duty to secure accommodation. In both situations, the LHA was required to assess the applicant’s housing needs before providing advice and assistance. That advice had to include specific information regarding the likely availability, location, and sources of appropriate accommodation within the LHA’s district. Intentional homelessness was defined in s.191: it applied when someone deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.

54. The main housing duty under s.193 applied where the LHA was satisfied that an applicant was eligible for assistance, homeless, in priority need and not intentionally homeless. The LHA remained under this duty until one of the events in s.193 occurred. One of those was the LHA making an offer of suitable accommodation to the applicant, which was refused.

55. If an applicant ceased to be owed the main housing duty, he could make a fresh application for assistance; s.193(9) . However, the LHA was not required to accept an application which was based on exactly the same facts as the previous one; see Rikha Begum v Tower Hamlets LBC [2005] 1 WLR 2103 . Further, an applicant could not make repeated applications to the same LHA, whilst keeping an earlier application alive; see Rikha Begum at [28] and [31]: a person could not use repeated applications as a mechanism to obtain continuous temporary accommodation. This derives from s.193(9) . It is only once the main housing duty ceases in respect of an applicant that they were entitled to make a fresh application; see Konodyba v RBKC [2011] EWHC 2653 (Admin) at [53]: a LHA could not (and cannot) owe two different housing duties at the same time.

56. Finally, section 195 provided that where a LHA was satisfied that an applicant was threatened with homelessness, eligible for assistance, had a priority need but not satisfied that he became threatened with homelessness intentionally, the LHA had to take reasonable steps to secure that accommodation did not cease to be available for his occupation. Under subs. (5), where the LHA was not satisfied that the applicant had a priority need, or where the LHA was satisfied that he had a priority need but was also satisfied that he had become threatened with homelessness intentionally, the LHA was obliged to provide him with (or secure that he was provided with) advice and assistance in any attempts he may have made to secure that accommodation did not cease to be available for his occupation. Subsection (6) required that the applicant’s housing needs were to be assessed before such advice and assistance was provided. The material date for determination of the facts

57. In general, homelessness decisions are taken on the basis of the facts at the date of the original decision or review; see Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57 ; [2002] 1 AC 547 . However, this is subject to a number of exceptions. In Mohamed the occupation of interim accommodation qualified as M's place of normal residence and was sufficient to establish a local connection. The correct date for determining the existence of a local connection was the date of the decision or review and not the date of the application itself. However, in assessing the merits of an application, a reviewing officer could have regard both to material relevant to the period before the initial decision had been made which had come to light only after the initial decision and to matters arising thereafter. “The decision of the reviewing officer is at large both as to the facts (ie as to whether the three conditions in section 198(2) of the Act are satisfied) and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision;” per Lord Slynn of Hadley at [26], pages 554-555.

58. In Robinson v Hammersmith & Fulham LBC [2006] EWCA Civ 1122 , the Court of Appeal held that an authority could not postpone a decision pending a change of circumstances (approving R v Ealing LBC ex p Sidhu (1982) 2 HLR 45). In Robinson , the authority had unlawfully delayed making a decision concerning a 17-year-old's homeless application until after her eighteenth birthday, at which point she lost her automatic priority need status. The Court held that the review should restore the rights she had lost due to the authority's unlawful conduct. Waller LJ stated at paragraph [33]: "In my view accordingly the decision on review would not have been lawful if it had simply stated that the applicant was now 18 and thus not in priority need. If the original decision was unlawful which for the reasons, I have already given it was, the review decision maker should have so held and made a decision that would have restored to the applicant the rights she would have had if the decision had been lawful."

59. In Crawley BC v B (2000) 32 HLR 636 at 651-652, Buxton LJ held: “I would accept, also, that there could be circumstances in which a judge might properly take the view that an applicant ought not to be deprived, by events which had occurred between the date of the original decision and the date of the appeal, of some benefit or advantage to which he would have been entitled if the original decision had been taken in accordance with the law.”

60. In Temur v Hackney [2014] EWCA Civ 877 , agreeing with that, Jackson LJ stated at [39]: “There may well be circumstances in which it would not be right to deprive a person of some accrued benefit by reason of subsequent events.”

61. The consistent thread through these authorities is that the exception to the general rule is predicated on an initial unlawful act or decision by the authority which deprives the applicant of a right or benefit they would otherwise have had. Delay in seeking judicial review

62. In Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin) Leggatt J (as he then was) underscored how it is a well-established principle that public law remedies are discretionary: such discretion is not unfettered but must be exercised in a principled manner consistent with the rule of law. Citing Bingham LJ at [22], the court said, “… the discretion must be “strictly limited and the rules for its exercise clearly understood”.” At [29] the court went on to say: “One ground on which relief may be refused is that the claim has not been properly pursued. Delay in applying for judicial review is an obvious example. Relief may also be refused where the claimant acquiesced in the decision or did not exhaust other remedies before seeking judicial review or has abused the court's process, for example by misrepresenting or suppressing material facts. In all these cases there is some feature of the claimant's conduct in pursuing or failing to pursue the claim which makes it inappropriate to grant relief in these particular proceedings to this particular claimant. Generally, such factors will operate at the stage of deciding whether the court will entertain a claim for judicial review at all rather than at the stage of deciding what remedy to grant after a claim has been considered and held to be well founded. But even at the latter stage there is no difficulty in principle with the concept that failure properly to pursue the claim may disentitle the claimant to a remedy.”

63. In that vein, s.31(6) of the Senior Courts Act 1981 provides: “(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

64. The Court of Appeal in R (BC) v Surrey County Council [2025] EWCA Civ 719 reminded applicants of the need to act promptly and that the Court should consider whether delay is a bar to proceedings, and also whether it is a bar to a remedy being granted. Submissions

65. Mr Marshall Williams submitted that the Claimant’s approach to the Defendant in March 2012, when facing eviction, constituted a valid homeless application under Part 7, a conclusion he argued is justified by the objective evidence of the Claimant’s interview, submission of documents, and the Defendant’s subsequent arrangement of a tenancy explicitly described as “temporary housing.” Mr Marshall Williams submitted that the Defendant's failure to recognise and determine this application was an unlawful omission that has persisted for over a decade. The Defendant's communications in November 2024 and February 2025 constitute the reviewable decision crystallising this failure. Citing the principles in Crawley BC v B and Robinson v Hammersmith & Fulham LBC , Mr Marshall Williams submitted that the appropriate remedy is for the Claimant’s application to be determined now based on her circumstances as they were in 2012, thereby restoring the “accrued benefit” of the automatic priority need she possessed at that time due to her dependent children.

66. On behalf of the Defendant, Ms Rowlands submitted that the Claimant made no fresh homeless application in March 2012; instead, her approach to the Defendant was correctly treated as a request for “advice and assistance,” a distinct statutory function provided after the main housing duty had been lawfully discharged in December 2011. Ms Rowlands contended that the resulting tenancy at 7 Millpond Estate was not temporary accommodation provided in pursuance of a Part 7 duty, but an ordinary assured shorthold tenancy with a third-party landlord that it merely facilitated to prevent her homelessness. Ms Rowlands argued that even if the approach had been considered to be an application, it would have been lawfully rejected as being based on the same facts as the recently concluded application of December 2011. Ultimately, Ms Rowlands submitted the claim was academic, arguing that the Claimant's subsequent and accepted homeless applications in 2022 and 2024 supersede any suggested 2012 application, and it is through these later applications—in which she is not currently homeless or in priority need—that her situation must be assessed. Discussion Issue 1: Is the correspondence of November 2024 a decision susceptible to Judicial Review?

67. In so far as the preliminary issue of whether the communications from the Defendant in emails 1, 2 and 3 constitute a decision amenable to judicial review is concerned, I agree with Mr Marshall Williams that the character of a communication must be assessed in its proper context. Email 1 was sent by Mr Toraldo in direct response to a letter from the Claimant’s solicitors sent only the day before. As the Defendant submits, to characterise this email as a formal, reviewable decision is unrealistic. It did not arise from any fresh statutory process but was part of a dialogue between legal representatives concerning issues arising in 2024 as a result of s.21 notices having been served on the Claimant by NHG. Through the email, Mr Toraldo did not purport to make any decision. He set out that there were errors in the Claimant’s solicitors’ letter and his understanding of the Claimant’s status by reference to the Defendant’s records. Only half a sentence of the email is devoted to a note of the Claimant’s status. The author then moved on to address the s.21 issues. Mr Toraldo was not undertaking a fresh enquiry into whether a duty should be owed. Rather, he was explaining the Defendant’s position based on its (or his) understanding and analysis of past events. He noted, by reference to records of the Defendant, that the Claimant was not an accepted homeless case and no main housing duty was owed to her, a position he asserted arose from the Defendant’s previous discharge of its duty in 2011/2012. The Claimant’s solicitors’ views of the email cannot be determinative of its status; it is nevertheless noteworthy that they themselves complained in their email of 21 November that email 1 did not comprise or include any substantive response to their letter. I.e.: they did not think it constituted a decision.

68. The relevant substantive paragraph of email 2 is the second paragraph. Paragraph 1 of the email expressly set out what the email purported to be: confirmation as to what appeared in the Defendant’s records. Paragraph 2 confirmed what the notes recorded about the events of December 2011. Paragraphs 3 and 4 summarised what the records showed had occurred after that. Paragraph 5 then summarised the position. Email 2 does not constitute or include any evaluative decision as to what the Claimant’s status was. Similarly, email 3 further confirms the Claimant’s historical status. It does not consist of any evaluation or decision.

69. My assessment of the character of emails 1 to 3 is not altered by considering them in the statutory context of Part 7, as Mr Marshall Williams submitted was essential to his contended characterisation of them as comprising cumulatively a decision. I agree with Ms Rowlands: through the emails the Defendant’s officer was explaining his understanding of the situation, not making a new determination on a 2012 application.

70. It follows that the true object of this challenge is not a decision in email 1 or emails 1 to 3 but the events of March 2012 and the Defendant's failure (as the Claimant seeks to characterise it) to consider the Claimant’s valid homeless application at that time. That this is the case is reinforced by considering what it is the Claimant seeks to challenge. The Claimant’s challenge is to the Defendant’s alleged errors in failing (i) to accept that a homelessness application under Part 7 Housing Act 1996 was made in March 2012 (Ground 1) and (ii) to find that it was subject to a duty under s. 193 , 195 or 188 (in March 2012) (Ground 2). Intellectually straightforwardly, both challenges engage with a decision or failure of March 2012.

71. In those circumstances, in my judgement the court is classically in the territory of delay of such an order whereby if relief were granted it would substantially prejudice the rights of the Defendant and be detrimental to good administration within the meaning of s.31(6) of the Senior Courts Act 1981 . The judgment of Carr LJ (as she then was) in R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 ; [2022] 1 WLR 2339 (‘ Good Law ’) emphasised at [39] the need for promptness (in the different context of a delay in serving the claim form): “Good public administration requires finality. Public authorities need to have certainty as to the validity of their decisions and actions.” This was repeated in R ( BC) v Surrey County Council in the judgment of Coulson, Baker and Whipple LJJ at [16]. The delay of almost 12 years during which time the Claimant had acquiesced in the decision of the Defendant to provide her with accommodation, on any analysis, had the effect of preventing her from being homeless for that period (and continues to do so). She accepted the benefit of that arrangement and did not challenge its legal basis until the security of that accommodation was threatened in 2022. Even then, there was a further delay before the claim was issued until 14 February 2025. Issues 2 to 5

72. In case I am wrong about my assessment as to the import of delay on the grant of a remedy in this case, an analysis of the substantive issues shows how it would be inappropriate to grant relief in any event.

73. The substantive argument centres on the legal characterisation of the events of March 2012 and the duties which are said to flow from them.

74. The appropriate starting point in my judgement is not to ask what the Defendant ought to have done in the abstract, but to establish what it actually did and what the legal consequences of those actions were.

75. The agreed context is that in December 2011, following the Claimant’s refusal of a suitable offer of accommodation at 72 Swan Mead, the Defendant’s main housing duty to her under s.193 was lawfully discharged. The Defendant's records are clear in respect of this, and the decision was upheld following a s.202 review. Consequently, when the Claimant re-approached the Defendant’s officers on 6 March 2012 upon being required to leave her temporary accommodation, the Defendant’s recorded position was that it owed her no further s.193 duty. It is clear from the Defendant’s contemporaneous note of the “advice and assistance interview” that took place on 6 March 2012 that it did not treat her as a homeless person to whom a Part 7 duty was owed. Instead, it treated her as a “former accepted HL [homelessness] case” and provided assistance under its general statutory functions (see ss.179 and 190 of the 1996 Act in their then form, above).

76. The subsequent provision of the tenancy at 7 Millpond Estate must be viewed in this light. This was not accommodation provided in pursuance of a fresh Part 7 duty. Rather, as Ms Rowlands submits, it was a practical measure of assistance, facilitated through the Defendant’s Finders’ Fees Scheme and its “nominations agreement” with Hyde, to prevent the Claimant from becoming street homeless. The nominations agreement itself supports this interpretation, defining one of its purposes as "homelessness prevention" through the provision of an assured shorthold tenancy. Although the tenancy agreement and other documents refer to "temporary housing," in those contexts, the expression is used not as term of art. The tenancy agreement merely described the nature of the tenancy from the perspective of the housing associations involved. The legal reality is that the Defendant provided the Claimant with assistance to obtain an assured shorthold tenancy as part of a proactive step to house her after it considered its main duty had ended.

77. Having considered what the Defendant did, it is then necessary to look at what it ought to have done.

78. On 8 March 2012, the Defendant received a Housing List Application Form (a Part 6 application) from the Claimant, which recorded that her tenancy at 40A Denmark Hill was due to end on 1 April 2012. It is clear from the Defendant’s records that it did not understand that the Part 6 application should have been treated as a Part 7 application. As confirmed in cases such as R v Chiltern DC, ex p Roberts , a Part 7 application does not need to be in any particular form. Further, as established in Bury MBC v Gibbons ; R (oAo Daisy Simpson) v Brentwood Borough Council and Essex County Council ; and the Homelessness Code of Guidance, information provided for a Part 6 allocation which gives an authority “reason to believe” an applicant may be homeless should be regarded as an application under Part 7.

79. Applying the principle that whether an application has been made is a “precedent fact”, where an objective test needs to be applied to the evidence ( R v Tower Hamlets London Borough Council, Ex parte Ferdous Begum , applying Khawaja principles), in my judgement an application was made. The combination of the Claimant’s visit on 6 March and the submission of the form on 8 March, objectively viewed, was sufficient to constitute a fresh application for assistance under Part 7. The Claimant's actions were sufficient to trigger the Defendant's s.184 duty to make inquiries. In failing to appreciate that, the Defendant erred. Had the Defendant correctly identified this as a fresh Part 7 application, it would have been required to make a decision in respect of that application.

80. It may well have been open to the LHA to decide, applying Rikha Begum v Tower Hamlets LBC principles following Fahia , not to accept the application, to prevent what Ms Rowlands described as a revolving door situation, where repeated applications could otherwise be made by applicants on the same facts. Here, the Claimant’s homelessness in March 2012 was a direct consequence of her actions following the discharge of the Defendant’s previous duty in respect of the Claimant. The facts giving rise to her homelessness were arguably not new. The Defendant could, therefore, have lawfully concluded that this was a repeat application on the same facts and declined to accept it. On the other hand, the Defendant may have found that there were new facts by virtue of the Claimant’s change in mental health status. However, the Defendant did not make any such decision, because it did not recognise that a Part 7 application had been made.

81. The Claimant next argues that if the Defendant had accepted the application, as it ought to have done, the accommodation at 7 Millpond Estate would have been provided to the Claimant under the Defendant’s interim duty (s.188), and that being in such accommodation would not have brought to an end the Claimant’s homeless status. That is a correct statement of the effect of the law, had the Defendant provided the accommodation pursuant to s.188. However, it does not reflect what occurred as a matter of fact.

82. Having considered what the Defendant did and what it ought to have done, it is then necessary to look at the implications of that. Because the Defendant did not recognise the Claimant’s March 2012 application as a Part 7 application, it did not place the Claimant in the 7 Millpond Estate tenancy pursuant to its interim duty. Instead, it facilitated a new assured shorthold tenancy with Hyde, by which the Claimant moved directly from 40A Denmark Hill to 7 Millpond Estate. The legal effect of the Defendant's actions was that the Claimant was never, in fact, homeless. By securing accommodation for her which took effect before her tenancy of 40A Denmark Hill had ended, the Defendant rendered her no longer homeless within the statutory definition in s.175 of the Act .

83. Therefore, even if the Defendant had correctly treated her approach as a fresh Part 7 application, by the time it came to determine her homeless status, she had already been housed. As established in R v Rugby Borough Council, ex p Hunt , the duty to make inquiries under s.184 does not arise until an applicant comes within the statutory definition of being homeless or threatened with homelessness. In the circumstances, as the Defendant’s non-statutory assistance had prevented her from becoming homeless, any fresh Part 7 application would inevitably have failed. As Hickinbottom J observed in R (Edwards) v Birmingham City Council , not every complaint or approach requires an authority to make inquiries; the authority is required to focus on whether a person may be homeless. Here, she was not.

84. Finally, I accept the Defendant's submission that the claim is, in any event, academic. The Claimant made new, formal homeless applications to the Defendant in 2022 and 2024, which the Defendant accepted and acted upon. As this court held in Konodyba v RBKC , “an authority cannot owe two different housing duties at the same time,” and in any event, these later applications – which were made in March 2024 and treated by the Defendant as new homelessness applications - supersede any extant 2012 application. The Claimant cannot keep an earlier application alive while making subsequent fresh applications.

85. In light of this analysis, I can address the remaining issues as follows: (i) Issues 2 and 3: I find that the actions of the Claimant in March 2012 were sufficient to amount to a further application under Part 7, and the objective evidence justified this conclusion. (ii) Issue 4: The Defendant did fail to recognise that an application had been made in March 2012. However, it was not required to consider whether it owed a duty under s.193 , because even if it had correctly identified the application, the Claimant was not, in the event, homeless. No statutory duty under s.188, 193 or 195 was ever triggered. The Defendant might well have lawfully decided it was not a valid fresh application under the Rikha Begum principle but in the circumstances, nothing turns on this because none of these duties was triggered. (iii) Issue 5: The question of whether a decision should be reached on the basis of the Claimant’s circumstances in 2012 does not arise. The principle in Crawley BC v B and Robinson v Hammersmith & Fulham LBC , which allows for assessment at an earlier date to restore an "accrued benefit," is predicated on an initial unlawful act by an authority which deprives an applicant of a right they would otherwise have had. As established in Temur v Hackney , this is an exception to the general rule, articulated in Mohamed v Hammersmith & Fulham LBC , that facts are assessed at the date of the decision or review. Here, the Defendant’s error did not deprive the Claimant of a right, because its actions ensured that the factual predicate for that right—homelessness—never materialised. The exception does not apply.

86. It follows that had it been necessary for me to decide the Claim on the basis of the substantive argument, it would have failed on both grounds. Conclusion

87. For the reasons set out above, the Claim is dismissed.