Housing Benefit rules on absences abroad found to be unlawfully discriminatory

Michaela Kuželová v (1) The London Borough of Barnet (2) The Secretary of State for Work & Pensions [2026] UKUT 272 (AAC)

This case involves a successful in an appeal before the Upper Tribunal (Administrative Appeals Chamber) concerning Ms Kuzelova’s entitlement to Housing Benefit. Upper Tribunal Judge Gullick KC found that relevant provisions of the Housing Benefit Regulations 2006 (“the HB Regulations”) were unlawfully discriminatory.

The general position under the HB Regulations is that a claimant is permitted to be temporarily absent from their home for up 13 weeks for any reason where that absence is within Great Britain (see regulation 7(13)). However, following amendments made to the HB Regulations in 2016 (by the Housing Benefit and State Pension Credit Temporary Absence (Amendment) Regulations 2016), if the claimant is temporarily absent from their home outside of Great Britain, the permitted period is (generally) only 4 weeks. The main issue in this appeal was whether this provision discriminated unlawfully against migrant EU workers.

Background

Ms Kuzelova is a Czech national who moved to the UK in 2009. She had lived and worked in the UK for many years. Her son was born in the UK in 2012. At the beginning of the Covid 19 lockdown in March 2020, Ms Kuzelova had been forced to stop work and claim Jobseeker’s Allowance. She was also in receipt of Housing Benefit at this time to assist in meeting her housing costs for her privately rented accommodation.

In May 2020 Ms Kuzelova’s father (who resides in the Czech Republic) suffered a stroke. Ms Kuzelova left the UK urgently with her son to travel to the Czech Republic to be with him.  She did not know exactly how long she would be absent for at the time of her departure and her concern was primarily for her father’s health.

After around 2 weeks in the Czech Republic the father’s health had stabilised. However, Ms Kuzelova’s son (aged 8 years old at the time) was then taken seriously ill, requiring hospitalisation in early June 2020. She was advised by doctors that surgery was required and that it was not safe for her son to travel back to the UK until he had had the surgery. This delayed Ms Kuzelova’ s return to the UK due to her son’s health. Her son had surgery in early July 2020 and Ms Kuzelova arranged to return to the UK later in July 2020 (but leaving her son with his grandparents in the Czech Republic to recuperate).

Ms Kuzelvoa was anxious to return to the UK to sort out her finances. She had notified her local authority, Barnet Council (“the Council”), of her absence and her Housing Benefit had been suspended. The Council then decided, on 7 August 2020, that Ms Kuzelova was not entitled to Housing Benefit from 25 May 2020 and that she had been overpaid Housing Benefit of over £1000.

Ms Kuzelova attempted, without success, to get her Housing Benefit reinstated. The Council then advised her that she would need to claim Universal Credit, which she did in September 2020. She also filed an appeal with the First Tier Tribunal in September 2020. However, by this time she had accrued significant rent arrears, and in December 2020 she and her son were made homeless from their private sector accommodation.

Appeal to First Tier Tribunal

Ms Kuzelova was unrepresented in the appeal hearing before the First Tier Tribunal (“FTT”), which took place on 19 September 2022. Legal aid is not available in Welfare Benefits cases until a case reaches the Upper Tribunal. The FTT dismissed her appeal, finding that at the time she had left the UK she had not known how long she would be away for, and could not say her absence was unlikely to exceed 4 weeks. The FTT held that this meant that the Council had been correct to determine that her entitlement to Housing Benefit ended in May 2020.

Whilst the FTT noted that the HB Regulations did permit a longer absence abroad where a dependent child required medical assistance (up to 26 weeks pursuant to regulation 7(16)(c)(iii) and 7(17C of the HB Regulations), the FTT interpreted the HB Regulations as preventing reliance on this provision because the child’s ill health was not an issue at the time Ms Kuzelova first left the UK.

Appeal to the Upper Tribunal

Ms Kuzelova submitted an appeal to the Upper Tribunal herself. She was then referred to the Free Representation Unit (“FRU”) who assisted her to amend her grounds of appeal.

At the time of decisions under appeal, EU law was still in force (and remained so up to 31 December 2020 at the end of the transition period. At a hearing on permission to appeal in January 2024 a ground of appeal was advanced that regulation 7(13D) of the HB Regulations was indirectly discriminatory in its application to EU migrant workers, such as Ms Kuzelova. It was argued that Regulation 7(13D) was intrinsically more liable to affect migrant workers than workers who were UK citizens, and would place them at a particular disadvantage.

Ms Kuzelova sought to rely on Articles 7 and 9 of the Free Movement of Workers Regulation (Regulation 492/2011), which prohibit different treatment of EU workers from national workers and require EU nationals to enjoy all the same rights and benefits accorded to national workers. In the alternative, Ms Kuzelova sought to rely on the equal treatment provisions contained in Article 24 of Directive 2004/38 (“the Citizens Rights Directive”).

Permission to appeal was granted at an oral hearing on 10 January 2024. Given the challenge to the lawfulness of the HB Regulations the Secretary of State for Work and Pensions (“the SSWP”) was joined as a party to the appeal. Both the Council and the SSWP opposed the appeal.

Subsequently Ms Kuzelova was able to instruct solicitors who in turn instructed Counsel to represent her in the appeal. Evidence was provided to the Upper Tribunal to demonstrate that Ms Kuzelova came within the material scope of both the Free Movement of Workers Regulation and the Citizen’s Rights Directive.

Two further appeal grounds were advanced on behalf of Ms Kuzelova following the grant of permission to appeal. The first was that the First Tier Tribunal had failed to consider Ms Kuzelvova’s underlying entitlement to Housing Benefit from 5 June 2020 as a result of her son having become seriously ill when they were in the Czech Republic. Had the Council done this, the overpayment would have had to be reduced to reflect underlying entitlement, applying regulation 104 of the HB Regulations.

The third ground of appeal was that the Council should have carried out a “closed period supersession”. Once an award of benefit has been made it creates an indefinite award of that benefit. However, a decision can be superseded where there is a change of circumstances. When looking at a period of entitlement the decision-maker must identify whether there are periods within that time where the claimant meets the entitlement conditions as well as periods where they do not. This can result in a decision maker finding that the claimant had periods of non-entitlement followed by periods where the entitlement conditions are met again. In that scenario the decision maker should disallow the benefit for the period where entitlement has been lost, but the award of benefit continues again on an indefinite basis from the point that entitlement resumes.

This last ground of appeal focused on the period from when Ms Kuzelova’s son became ill in June 2020. If it were accepted that under domestic legislation she was not entitled to Housing Benefit from the point she left the UK in May 2020, the question was whether her entitlement to Housing Benefit could revive in June 2020 when her son became ill and was hospitalised (relying on regulation 7(16)(c)(iii) and 7(17C) of the HB Regulations). If that argument succeeded under domestic law, it would leave only the period from May to June where she had to rely on the EU law discrimination ground.

The case was heard over 3 days in June and September 2025, and judgment was handed down on 16 July 2026.

Judgment of the Upper Tribunal

The appeal succeeded on all grounds.

In relation to the EU law ground, the Upper Tribunal found that Ms Kuzelova was a worker for the purposes of EU law and that that she fell within the scope of the Free Movement of Workers Regulation 492/2011. Having found this Upper Tribunal Judge Gullick KC did not consider it necessary to consider whether Ms Kuzelova also came within the scope of the Citizen’s Rights Directive.

It was noted that EU law was in effect at the time the decisions in this case were made on 7 August 2020, and therefore had to be applied. The Upper Tribunal confirmed that pursuant to sections 4 and 5 of the European Union (Withdrawal) Act 2018, EU law retained supremacy and any EU rights in force as of 31 December 2020 continued to apply after that date. The Upper Tribunal further noted that the supremacy of EU law ended from 1 January 2024 as a result of the Retained EU Law Act 2023 (which repealed sections 4 and 5 of the European Union (Withdrawal) Act 2018).

This meant that the Upper Tribunal was empowered to disapply any provisions of the Housing Benefit Regulations 2006 that were contrary to EU law, because the decision making in question in the appeal had taken place prior to 1 January 2024 and at a time when EU law was still in force. However, it was agreed by the parties that the Upper Tribunal did not have the power to make a referral to the Court of Justice of the EU (which had been a remedy available when the UK was still a part of the EU) unless it was a question arising under the Withdrawal Agreement, which was not the case on the facts of this case.

The SSWP accepted that the four-week period of maximum permitted temporary absence from home that applies to absences outside Great Britain was likely to affect a substantially higher proportion of migrant workers than national workers. The key issue, therefore, was whether the indirect discrimination that the measure had on EU migrant workers was capable of being objectively justified.

The SSWP had asserted that the measure was justified for the following reasons:

1. That there was a difference between the needs of those who were temporarily absent within the UK, and those who were temporarily absent abroad, due to differences in living standards in different EU countries. Housing Benefit was linked to the socio-economic conditions in the UK.
2. That the aim of the longer 13-week period of permitted absence in the UK was to encourage claimants to look for work outside their local area, such as seasonal work.
3. That those remaining in the UK would be more likely to be contributing to society than those temporarily abroad.
4. Financial considerations.
5. Fairness, in terms of the nature of the ongoing link between the recipient of the benefit and the community that provides the benefit.

None of these factors were considered sufficient to justify the discriminatory impact on migrant workers. The SSWP’s assertion that the decision making had been at a political level (and was therefore to be given more deference) was not accepted. The mere fact that decisions had been taken by Ministers, rather than officials, did not elevate the arguments relied on into the dimension of “moral or political” justification.

There was also an absence of any evidence from the SSWP, both in relation to the connection between the relevant provision of the Housing Benefit Regulations and the legitimate aim, and the proportionality of limiting the permitted maximum period of temporary absence abroad to four weeks. There was no evidence that a longer period of permitted absence abroad would reduce a migrant worker’s connection to the UK, or that this would reduce their contribution to UK society. The claimant in question would still have liability for any rental or other costs (such as Council Tax and utility bills) they had in the UK during any temporary absence.

The Upper Tribunal further noted that in order to get Housing Benefit in the first place, the claimant had to pass the habitual residence test, thus demonstrating a sufficient link to the UK. No evidence had been provided by the SSWP that absences of more than 4 weeks would result in the loss of such links to the UK. Likewise, no evidence had been adduced by the SSWP to demonstrate any different level of need that a Housing Benefit claimant would have depending upon whether their absence from their home was in the UK or abroad. There was also no evidence that the measure created any greater administrative efficiency in the welfare benefits system of the UK.  There was no evidence that the measure was necessary to permit claimants to seek work away from their place of residence, such as seasonal work within the UK. Finally, there was no evidence of any financial savings that had been achieved as a result of the measure.

The Upper Tribunal concluded as follows at paragraph 231 of the judgment:

236. When looked at overall, the SSWP’s justification arguments amount, in substance, to a series of assumptions and assertions which are not supported by evidence in circumstances where that might be expected. They do not, in my judgment, come close to justifying the discriminatory effect of this measure on EU migrant workers such as the Appellant or demonstrating that the maximum period of four weeks’ temporary absence abroad is no more than necessary to achieve the aims relied on – rather than, for example, the eight-week period that was proposed as an alternative by the Social Security Advisory Committee in 2016 to “capture the hardest cases that are likely to be impacted by these proposals”. Such material as the SSWP has deployed in these proceedings amounts in substance to argument, rather than evidence, and is insufficient to demonstrate that the measure is objectively justified.

Ms Kuzelova was also successful on the “closed supersession” appeal ground, and the ground relating to underlying entitlement to Housing Benefit. The Upper Tribunal accepted that the First Tier Tribunal had been correct to find that when Ms Kuzelova left the UK in May 2020 it could not be said that her absence was unlikely to exceed 4 weeks, as she did not know how long she would need to be with her father. However, that position changed when her son was taken ill, as did the reason for her absence. She had to stay with her son as he was not well enough to travel and he required surgery. The Upper Tribunal found that from the point that Ms Kuzelova’s reasons for absence became due to her son’s health, her absence was unlikely to exceed 26 weeks and that the Council should have found her to be entitled to Housing Benefit again from this point, applying the closed supersession rule and regulation 7(16)(c)(iii) and 7(17C) of the HB Regulations. The First Tier Tribunal had erred in finding that Ms Kuzelova could not rely on this change of circumstances merely because those had not been the circumstances that applied at the time she first left the UK. Ms Kuzelova was also found to have an underlying entitlement to Housing Benefit from 5 June 2020 onwards. Upper Tribunal Judge Gullick KC commented as follows:

“127. I also note, and with considerable concern given the consequences for the Appellant and her son to which I have just referred, that Ms Taverner very frankly accepted that the concept of closed period supersession was not something that would normally be considered by the Local Authority in these circumstances. For the reasons which I have endeavoured to set out, and which are more fully discussed by Judge Butler in SC, that was a flawed approach. The concept of taking a closed period supersession decision to address a fixed period of historic non-entitlement has been referred to in the Housing Benefit and Council Tax Guidance published by the SSWP since at least July 2009 – see paragraph 145 of SC.”

Ms Kuzelova was found to be entitled to Housing Benefit from the point she left the UK in May 2020, and the decision creating an overpayment of Housing Benefit was overturned.

Comment

Firstly, it is cheering to see a proportionality assessment by the Upper Tribunal that does not merely rubber stamp the justifications offered by the SSWP, by contrast with some of the recent case law under Article 14 ECHR. For recent academic criticism of this approach see here.

Whilst the ruling of the Upper Tribunal makes does not directly address this issue, it could be of assistance in future challenges to similar rules under the Universal Credit system. These rules state that claimants will lose entitlement to Universal Credit if they are absent from the UK for more than 1 month, whereas absences of up to 6 months within the UK are permitted.

The judgment applies to the period before 31 December 2020, in which EU law remained in force during the transition period. However, EU national workers affected after this date (and up to 28 November 2022) should be able to rely on Articles 7 and 9 of the Free Movement of Workers Regulation, by virtue of sections 4 and 5 of the European Union (Withdrawal) Act 2018. From 28 November 2022 onwards the Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022 prevents reliance on Articles 7 and 9. It should also be possible for EU national claimants to rely on the Withdrawal Agreement (“WA”) for periods after 31 December 2020, and in particular the rights of workers contained in Article 24 of the WA. However, the full scope of these considerations is beyond the scope of this post.

The post Leaving on a jet plane appeared first on Nearly Legal: Housing Law News and Comment.

Harvey v Heaver [2026] EWHC 1671 (KB)

This is the first binding higher court judgment on the meaning of unfitness for human habitation in sections 9A and 10 of the Landlord and Tenant Act 1985 as amended by the Homes (Fitness for Human Habitation) Act 2018. The case is therefore important – but also procedurally a strikingly odd bit of housing litigation, involving a three-day hearing in the High Court to determine only whether or not an order for repairs and other works should be made against the landlord.

Of particular note is the court’s willingness to apply older authorities including Summers v Salford Corporation [1942] AC 283 (HL) and Rendlesham Estates v Barr (2014) EWHC 3968 TCC to assist with the meaning of fitness for human habitation. This follows the approach seen in Jillians v Red Kite Community Housing (Giles’ note here).

The Claim

Tenants, Mr and Mrs Heaver, and their four children brought a claim against their landlord in the High Court for breach of s11 and s9A of the Landlord and Tenant Act 1985 seeking an order for specific performance for works to be carried out, a decant and damages.

The Court ruled that it would only deal with the present and prospective fitness for human habitation of the property under s9A by reference to the uncontested evidence of the parties’ single joint expert. All other issues, including historic disrepair and historic fitness breaches were remitted to the County Court together with personal injury and Equality Act claims.

The property was a four-bedroom, mid-19th century house forming part of a former farm complex situated near Chichester. The Claimants had occupied the property on a series of assured shorthold tenancies since September 2020. It was not disputed that the s9A implied covenant applied to their tenancies throughout their occupation.

The single joint expert made findings in relation to:

1.Damp and mould in every habitable room and in both roof spaces attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof. The Court was satisfied that the damp and mould were caused by defects or disrepair that were the landlord’s responsibility and was so widespread as to present a risk to the health, including the mental health, of any occupant of the property regardless of vulnerability. The four children were at particular risk due to their age.

2. Excess Cold – the expert made no specific finding on excess cold but did find ‘reduced thermal performance’. The Court found that this together with the property’s EPC rating of E (the lowest rating at which a residential property can generally be let) gave rise to a risk that the property would be excessively cold in winter.

3. Asbestos – the ceiling in Bedroom 1 was cracked, deflected and leaking and was covered in textured coating which contained asbestos (chrysotile, or white asbestos). While the expert had not carried out his own asbestos survey, he relied on an earlier survey obtained by the Claimant. This was not disputed and the Court admitted it in evidence. The Court found that the asbestos coating presented a risk to the health of the tenants, particularly the children, as it was damaged and on a ceiling that was cracked, deflected and bulging, had water penetrating it and was at risk of collapse.

4. Electrical installations – the expert noted the property had an EICR with a rating of ‘Unsatisfactory’ with exposed live conductors and an uncovered junction box. However, these issues had been resolved before the hearing.

5. Rodent infestation – the Court accepted the expert’s evidence of an active rodent infestation at the property.

6. Septic tank – the vent pipe to the tank was damaged. The expert advised further specialist investigations by a suitably qualified drainage engineer.

7. Defective heating system – the expert made two findings accepted by the Court relating to defects to the oil supply serving the oil-fired central heating system and defects to a wood burning stove in the living room (but noting the Court could not resolve the dispute between the parties about whether this was a landlord or tenant fitting).

8. Garden fencing – the expert found defects in the garden fence but noted maintenance of the garden was the tenant’s responsibility in the tenancy agreement.

Works were estimated to cost £39,150 excluding VAT and to take 4-6 weeks to complete.

While there were other expert reports the Court decided it did not need to take account of these, nor the tenants’ evidence, to make a finding on the current fitness of the property.

With regards to the damp and mould, the Court was referred to the recently updated HHSRS Operating Guidance, statutory guidance to which local authorities must have regard when exercising their functions under the Housing Act 2004, and the Government’s Damp and Mould Guidance (‘Understanding and addressing the health risks of damp and mould in the home’), guidance which a local authority or court is not required to have regard but which the judge described as ‘relevant and helpful.’

The High Court judgment

Having set out the material findings of the expert, the Court turned to the legal framework: the implied covenant of fitness for human habitation in sections 9A and 10 of LTA 1985 and the test of fitness. Noting the absence of any authoritative interpretation of the revised test in s10 (as amended by the 2018 Act), the Court undertook a detailed review of the legislative history of fitness for human habitation, examining four statutory contexts where it has developed: the private law implied covenant of fitness in low-rent lettings, the public law protection of local authority powers to enforce housing standards (now contained in the Housing Act 2004), the duty of builders under the Defective Premises Act 1972 and the statutory nuisance regime under the Environmental Protection Act 1990.

As to the construction of sections 9A and 10 and the meaning of the test for fitness for human habitation, the Court drew the following conclusions:

54. First, in assessing ‘fitness’ the same relevant matters (‘repair’, ‘stability’, ‘freedom from damp’ etc.) and test (‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’) continue to apply as before the amendments, so that a property that was ‘unfit’ before would also be ‘unfit’ after. The core test in section 10 is carried over unchanged, and the older authorities on its meaning remain a reliable guide. In particular, Summers and Rendlesham remain good authority that fitness has two distinct components: premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety. Nothing in the 2018 amendments displace that conclusion.

55.Second, the addition of ‘any prescribed hazard’ in section 10(1) extends the matters that are relevant to the issue of fitness. Although there is clearly considerable overlap with the existing matters (e.g ‘freedom from damp’ and ‘Damp and mould growth’), the addition addresses concerns that the list of ‘matters’ in section 10 was incomplete.

56. Third, by including in the list of relevant factors ‘any prescribed hazard’ by reference to the terms defined in the HA 2004, there is a clear statutory intention to bring about a degree of convergence between the private law and the public law means of protecting tenants from substandard rented accommodation. ‘Prescribed hazard’ is defined by reference to the list of 21 ‘matters and circumstances’ in the HHSRS Regulations (by virtue of section 10(2)) and the definition of ‘hazard’ is to be found in section 2(1) of the HA 2004 (section 10(3)). If any of those 21 ‘matters and circumstances’ exist and they present ‘any risk of harm’ within the meaning of the HA s 2(1) (above, paragraph 48), including temporary harm and harm to mental health, they are both a ‘hazard’ for the purposes of section 2(1) of the HA 2004 and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985, as amended. Any such ‘prescribed hazard’ is relevant to the court’s assessment of whether the property is ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’ and therefore unfit for human habitation under section 10(1).

57. Fourth, the convergence between the public and private law protection is only partial. The ‘fit for human habitation’ standard is retained in assessing compliance with the implied covenant but plays no part in the exercise of local authority powers since the HA 2004 came into force. Moreover, unlike the local authority when exercising its functions under the HA 2004 (above, paragraph 46), the court’s power under section 10 does not depend upon a finding that there is a ‘category 1’ or ‘category 2’ hazard. Indeed, as Summers and Rendlesham make clear, a finding of unfitness can be made even if there is no risk of harm (i.e. a hazard), if by reason of one of the relevant matters (including ‘freedom from damp’) the dwelling is ‘not capable of occupation for a reasonable period … without undue inconvenience or discomfort’ to the occupants. That said, a local authority assessment of a category 1 or category 2 hazard would be strong evidence of unfitness. I agree with the conclusion of HHJ Luba KC to similar effect in his very helpful book ‘Housing Conditions: tenants’ rights’, 6^th ed. (2019) at 2.39.

The Court then dealt with two exemptions contained in s9A (both of which are often raised by landlords in defence to fitness claims): works required by the tenant to comply with their duty to use the property in a ‘tenant-like manner’ (s9A(2)) and unfitness which is ‘wholly or mainly’ attributable to the tenant’s own breach of covenant s9A(3)).

On the first, the Court clarified that the ‘tenant-like manner’ carve out never applies to the structure and exterior; any term trying to do so would be void under s9A(4).

On the second and unfitness ‘wholly or mainly attributable’ to the tenant’s own breach, the Court said at paragraph 60:

Where the dwelling has become unfit for reasons ‘wholly or mainly’ attributable to a breach of the tenant’s own obligations – including any express duty and the implied duty to use the premises in a tenant-like manner – the landlord is not liable under the implied covenant. The threshold is a high one, however: tenant default that is a real but secondary cause of ‘unfitness’ does not meet it. So, for example, condensation mould wholly or mainly the result of the tenant’s own failure to ventilate or heat the dwelling will defeat the claim; but the same mould, if mainly attributable to a defect that is the landlord’s responsibility, such as inadequate insulation or the absence of effective ventilation, will not, even if the tenant’s use of the dwelling has played some part in it.

The expert had noted closed window trickle vents in one room and unchanged filters in the ventilation unit and while he could not rule out those failings may have contributed to the damp, they were not a primary or significant cause. The landlord had initially sought to argue the unfitness was wholly or mainly due to the Claimants’ behaviour, also citing the Claimants’ failure to use central heating and their generation of condensation from daily activities, but withdrew this at trial. The judge referred to both the HHSRS Operating Guidance that states a building must be able to cope with normal moisture production and the Damp and Mould Guidance which emphasises that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices.’

What did the Court decide?

The Court was satisfied from the findings based on the SJE report that the property, on the date of the hearing, was unfit for human habitation. This is because it was so far defective in multiple relevant matters in s10(1) that it was not reasonably suitable for occupation. Those matters were freedom from damp, repair, drainage and sanitary conveniences (the septic tank) as well as the prescribed hazards of damp and mould growth, asbestos, structural collapse and falling elements (the deflected and bulging bedroom ceiling) and domestic hygiene (the rodent infestation). At paragraph 62 the Court said:

 I am satisfied that, individually and collectively, those matters render the Property not capable of occupation for a reasonable period without risk to the health or safety of the Claimants. I am also satisfied that, regardless of risk, those matters render the Property not capable of occupation for a reasonable period without the undue inconvenience or discomfort of the Claimants.

The most serious deficiency was the damp and mould; the damp alone was sufficient to make the property unfit. While the visible mould in the property was described by the expert as ‘generally of a light extent, with localised areas of moderate intensity’ the Court was of the view that there was a real and substantial risk that the mould would develop and spread given the damp conditions, particularly in winter. The mould put the tenants’ health, including mental health at risk that, when taken with the damp, made the property unfit.

With regards to the asbestos, the Court referred to the case of Summers that made clear that a defect in one room could render the entire property unfit for human habitation. The asbestos was a hazard that was on its owns sufficient to make the property unfit until it had been repaired or replaced.

Individually and collectively the identified s10(1) matters meant the property was not reasonably suitable for occupation and was unfit for human habitation as at 25 June 2026, the date of the hearing.

The Outcome

The Court made an order for specific performance requiring the landlord to carry out specific remedial works identified in the expert’s report that would cure the property’s unfitness. The Claimants were also awarded their costs on the standard basis and a payment on account.

The order required the Claimants to move out of the property temporarily for works to be carried out. The Claimants sought an order that the landlord provide and pay for temporary alternative accommodation (a ‘decant’). This application was refused and the reasons given were:

(a) A ‘decant’ is often an entitlement for tenants in the social sector, whether of a local authority or a housing association, under the terms of the tenancy or the landlord’s policy. There is no equivalent right for a private tenant. The Claimants must therefore establish their entitlement to alternative accommodation in the ordinary way, as a matter of remedy for the breach I have found, and not as a freestanding right.

(b) The usual remedy, where a tenant has to move out so that works can be carried out, is a claim for damages for the cost of doing so caused by a breach of the implied covenant – the cost of alternative accommodation, removal, storage and the like. Such a claim is ordinarily determined at the quantum stage, at the end of the trial, once the works and their consequences are known: see, for example, McGreal v Wake (1984) 13 HLR 107. What is sought here is, in substance, a payment on account of those damages, in advance of any assessment of damages. No reason has been advanced for taking that course, and no authority has been cited to support it.

(c) As a necessary preliminary to obtaining such an order the Claimants would, in any event, have to prove that moving out is necessary to enable the works to be completed. That evidence is not presently available. The single joint expert, Mr. Badham, does not say that vacation is necessary. His evidence is that no single item of work requires vacant possession, that vacation would on the aggregate scale of the works be more practical or desirable, and that whether it is necessary for these particular occupants is beyond his expertise (report, paragraphs 9.1.11, 9.4.3 and 10.6; Part 35 answers 1, 3 and 8). On that evidence the necessity of a ‘decant’ is not made out.

(d) The question whether vacation is necessary is likely to turn on contested issues concerning the vulnerabilities of the Claimants. Evidence of those vulnerabilities will be central to the personal injury and Equality Act 2010 claims, which have been remitted to the County Court. There is a particular risk of inconsistent findings if I were to decide the necessity of a decant now, on partial evidence, when the fuller evidence on the same issues falls to be considered in the remitted trial.

The landlord’s late application to amend

The landlord had applied to amend her Defence on the first day of trial. The proposed amendment pleaded a defence under s9A(3) that the unfitness was wholly or mainly attributable to the tenants’ own historic failures to provide access in breach of covenant.

The application was refused. It was a very late amendment, there was no good reason the point had not been made earlier, and whether access failures could have been wholly or mainly responsible for the unfitness was a causation issue that should have been put to the SJE, and it was not. Allowing the late amendment would cause the Claimants real prejudice. In any event, the defence went to historic unfitness which was not being determined at this trial.

Comment

This is a thorough judgment, providing an authoritative account of the meaning of fitness for human habitation.  Particular points to note are:

1) The older authorities including Summers and Rendlesham remain a reliable guide on the meaning of fitness. They remain good authority for the point that fitness has two distinct elements and that premises may be unfit if:

1. the conditions present a risk to the health or safety of the occupiers; or
2. the conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety.

This means a property can be unfit even if there is no risk of harm, if by reason of one of the relevant matters, the property cannot be occupied for a reasonable period without undue inconvenience or discomfort to the occupants.

2) The Court does not require a ‘category 1’ or ‘category 2’ hazard to make a finding of unfitness, although such an assessment would be strong evidence of unfitness.

3) Where the main cause of the unfitness is a defect for which the landlord is responsible such that any proven tenant default is only a secondary cause, that will not afford the landlord a defence to a claim. Tenant use of the property that contributes to the unfitness, for example, use that contributes to a mould problem, is not enough where it is not the primary cause of unfitness. The HHSRS Operating Guidance and Government’s Damp and Mould guidance can help the Court and are worth referring to.

4) The claim, very unusually, was issued in the High Court instead of the County Court and there is reference in the judgment to its expedition due to the property’s condition. While the High Court was willing to try the issue of current fitness it determined the County Court was the more appropriate venue for the historic disrepair and fitness claims together with the personal injury and Equality Act claims that had already been remitted there (the High Court noting it had no jurisdiction over the Equality Act claim). The willingness of the High Court to deal with the finding of fitness and order for specific performance might be taken by some as lending support to asking the High Court to deal with urgent applications under Awaab’s Law.

5) The Court’s refusal to order the landlord to provide ‘decant’ accommodation was in the context of specific performance of section 9A Landlord and Tenant Act 1985. There is an entitlement to suitable alternative accommodation at the landlord’s expense, until relevant safety work has been completed under Awaab’s Law (regulation 16 of the Hazards in Social Housing (Prescribed Requirements) (England) Regulations 2025). However, for the time being this is limited to social tenancies and specific hazards only.

6) The judgment expressly did not decide whether a landlord must have notice of a defect before their liability under the fitness covenant arises. A requirement for such notice is read into section 11 in respect of disrepair.

Postscript

The judgment cites, with great approval, Housing Conditions: Tenants’ Rights 6^th Edition, the book Giles co-authored with HHJ Jan Luba KC and Catherine O’Donnell.

Readers of this blog will almost certainly already know how Giles was instrumental in drafting the Homes (Fitness for Human Habitation) Act 2018. He was also, on this blog, a notable commentator on its treatment so far in the County Court, and he had identified years ago the relevance of case law under section 1 of the Defective Premises Act 1972. It will not have come as a surprise to readers of this blog that he was right.

The post Unfitness in the High Court appeared first on Nearly Legal: Housing Law News and Comment.

The Claimant Landlord had obtained an injunction ordering the Defendant Tenant to provide access for an electrical inspection. The Tenant had not complied with that order. The Landlord therefore applied to the court to vary the injunction, so that they were “permitted to use reasonable force by drilling the locks to obtain immediate access”, subject to certain conditions.

The application was heard by HHJ Glen. The issue was whether the court had the power to allow the Landlord to force entry using CPR 70.2A(2):

“Subject to paragraph (4), if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being—

(a) the party by whom the order or judgment was obtained….”

Previous cases

Stonewater was the latest in a series of cases addressing the issue of forced access injunctions.

The court’s power to make such orders under CPR 70.2A by DJ Cridge in Southern Housing v Emmanuel (our note). Firstly, he found that landlords had no statutory or common law right to force access. As the CPR could not alter the substantive law, Rule 70.2A could not be used to authorise forced access.  Secondly, Rule 70.2A only allowed the court to direct someone perform “the act required to be done” by the original order. An order that the tenant “allow” the landlord access required the tenant to consent. Forced entry without such consent was a different act, and outside the reach of Rule 70.2A.

A different conclusion was reached by DJ Le Bas in Taylor Clark Ltd v Mohamed (our note) . The landlord did have a right to enter the property: the tenant had provided contractually-binding consent to allow the landlord access. The court was doing no more than giving effect to that consent. As for the act to be done, that was “facilitating” that access. This was an act which could be done by the landlord, by forcing the lock if necessary. CPR 70.2A was applicable.

A similar approach was taken by DJ James in May in Plymouth Community Homes Limited v Hammond [2026] EWCC 27 (no NL note, but judgment available here). The tenant’s right to quiet enjoyment was subject to the landlord’s contractual rights (express and implied) to enter the property as set out in the tenancy. A court order could enforce those terms. As for the act, even if the original order was that the tenant “allow” access to the property, this did not have an element of consent. Court orders were compulsory. The act required was the provision of access. Another party could provide this access, even if not in the same literal way as the original order had envisaged. CPR 70.2A remained effective.

Judgment

HHJ Glen first identified the source of the landlord’s right to enter the property. He did not agree with the ‘deemed consent’ approach of Le Bas in Taylor Clark (which had been adopted by the Claimant). There was a distinction between access clauses and consent clauses. A clause that a tenant would give access under certain conditions did not allow the landlord simply to enter when those conditions were met. That required a properly-drafted clause giving express consent; there was no such clause here.

However, HHJ Glen also disagreed with DJ Cridge’s conclusions in Emmanuel that CPR 70.2A could not be used in absence of such a right. A court could authorise entry into a private home, even without express statutory authority. Search and Imaging orders (formerly Anton Pillar orders) were an illustration of this, although this was “the absolute extremity of the court’s powers” (Lock International plc v. Beswick [1989] 1 WLR 1268).

As a result, the correct approach was that taken by DJ James in Plymouth Community Homes: the focus must be on the act required by the original order. That act was “enabling the landlord to obtain access”. This could be performed by the tenant or, on their default, the landlord. CPR 70.2A could therefore be used to give the landlord permission to force entry. To the extent that this required a purposive interpretation of the rule, it was justified: this was preferable to proceedings for contempt, or a claim for possession, which was “truly an example of taking a sledgehammer to crack a nut“.

However, HHJ Glen noted that such forced entry was a serious interference with a tenant’s property and convention rights. He therefore offered four points of guidance:

1. It is not normally appropriate for the Court, on the first application, to grant a ‘rolled-up’ order for access, including a pre-emptive CPR 70.2A provision in case of default. Instead, a second application should follow if the Defendant does not comply with an initial order.
2. On such an application, the Court should be provided with information on any vulnerabilities of the tenant’s household.
3. Forced entry should require 48 hours notice, and should not proceed in the face of active opposition
4. It is good practice for landlords, after forced entry, to affix a key-safe to the wall of the Property, to assist the tenant’s re-entry.

By postscript, HHJ Glen noted that this issue could be avoided with a properly-drafted clause in the tenancy, giving express consent for the Landlord to enter the property in their absence, subject to certain conditions.

Thoughts

HHJ Glen’s judgment adds weight to the body of cases deciding that CPR 70.2A is sufficient for forced access injunctions. The purposive approach has practical attractions: without it, a landlords’ recourse is proceedings for possession or contempt of court. This is unsatisfactory: from the tenant’s perspective, these approaches are extremely drastic, while landlords will find little comfort in the fact that those slow proceedings have unclear outcomes (particularly given the common mental health element). HHJ Glen’s guidance is also welcome, as standardisation can only help in this unclear area of law.

That said, this is a non-binding county court decision. Although it has the authority of a circuit judge, such authority has existed since Sovereign v Hall (our note https://nearlylegal.co.uk/2024/12/orders-for-forced-entry-after-injunction/ ). District judges can (and do) continue to depart from such judgments. Although Emmanuel increasingly stands alone, it retains a loyal following.

However, it is understood that the issue of forced access injunctions is presently being taken to a higher court. If so, then the authoritative decision invited by so many judges (including DJ Cridge) will soon bring welcome certainty to this turbulent area.

The post No Sledgehammer Needed – Forced Access Injunctions Continued appeared first on Nearly Legal: Housing Law News and Comment.

This Court of Appeal decision deals with the circumstances in which the main housing duty can be ended, and whether accommodation offered must be suitable for the main housing duty to be discharged by s.193(6)(d) HA 1996 (i.e. because the person has voluntarily ceased to occupy as his only or principal home accommodation which has been made available to him).

Facts

Mrs Griffiths-Fowell was a disabled person who sought homeless assistance from Birmingham City Council in August 2022. She lived with her brother who was severely disabled as he had cerebral palsy, was paralysed from the waist down and required the use of a wheelchair, and was affected by schizophrenia and bipolar disorder.

Birmingham accepted that it owed the s.193(2) duty and initially housed them in B&B accommodation, before informing Mrs Griffiths-Fowell that a duty was no longer owed because she did not have a ‘local connection’ to Birmingham. This led to judicial review proceedings being commenced in March 2024, challenging the refusal to make accommodation available to them, following which Birmingham provided accommodation at a Travelodge. Birmingham then, again, sought to make a local connection referral to Manchester and told the pair to leave the hotel. Following the grant of urgent interim relief, Birmingham retracted the referral and accepted that it owed a duty under s.193(2).

Birmingham offered temporary accommodation at Langdon Walk on 31 July 2024, which was accepted but a review of its suitability was sought. Birmingham accepted in October 2024 that the property was unsuitable, as it lacked the necessary adaptations for the brother’s disabilities (he could not access the bathroom or toilet in the flat). Pre-action correspondence then followed. A second judicial review claim was brought in April 2025, concerning the breach of the main housing duty and the failure to secure suitable accommodation.

In May 2025, Birmingham offered temporary accommodation at Holden Close, which the pair accepted and moved into. On 4 June 2025, Birmingham accepted that the toilet was inaccessible and the stairlift was unsuitable. As the bedrooms and bathrooms were upstairs, Birmingham placed a commode on the ground floor and a bed in the living room. It stated that a lift would be installed, which was estimated to take around four weeks.

A contested hearing of the judicial review claim proceeded on 25 June 2025. Birmingham had not filed summary grounds of defence. HHJ Williams granted permission to apply for judicial review and made an interim mandatory order requiring the provision of suitable accommodation by 16 July 2025.

On 16 July 2025, Birmingham (again) offered accommodation at Langdon Walk, considering it suitable (even though it had previously accepted this property was unsuitable). Mrs Griffiths-Fowell applied to commit Birmingham for contempt for failing to comply with the interim mandatory order. Birmingham then offered hotel accommodation until the works at Holden Close were completed, which it indicated would be at the end of July 2025.

At the end of July 2025, the applicant’s brother was admitted to hospital for self-harming, and Mrs Griffiths-Fowell was unable to care for him due to a decline in her own mental health. She signed a licence agreement to occupy a room in supported accommodation, which she said was for a few days’ respite, while her brother returned to Holden Close. Birmingham responded by purporting to discharge the main housing duty to the applicant under s.193(6)(d) HA 1996 as she had voluntarily ceased to occupy Holden Close as her principal home. The applicant in fact returned to Holden Close after a few nights in the supported accommodation.

High Court decision

The substantive judicial review hearing proceeded before HHJ Rawlings on 8 October 2025, in which he granted a declaration that Birmingham was and remained in breach of the main housing duty and the interim mandatory order was made final. It was decided that:

1. The temporary accommodation and hotel had been unsuitable,
2. The main housing duty had not ended pursuant to s.193(6)(d), because Mrs Griffiths-Fowell had not voluntarily ceased to occupy the accommodation as her only or principal home and in any event the accommodation to which s.193(6)(d) refers must be suitable, and
3. Judicial review was an available remedy notwithstanding the statutory review and appeals process.

Birmingham appealed to the Court of Appeal on six grounds, which concerned whether: there was an adequate alternative remedy (grounds 1 and 5); the construction of s.193(6)(d) and whether it requires accommodation made available to be suitable (grounds 2 and 4); and whether the judge had failed to apply public law principles (grounds 3 and 6).

Court of Appeal

The Court of Appeal dismissed the appeal on all grounds.

It first considered whether the appeal had become academic, as the applicant no longer sought accommodation with her brother and was content for the mandatory order to be discharged. However, because the declaration made by the High Court remained in force and Birmingham argued that it should not have been made, there remained a live dispute and the matter had not become academic.

As to whether there was an alternative remedy which should have been pursued, it was noted that a claimant who has an alternative remedy must show exceptional circumstances to justify bringing judicial review proceedings. HHJ Rawlings’ conclusion that there were exceptional circumstances could not be impugned on appeal, in view of the highly unusual circumstances of the case. However, the Court of Appeal cautioned that the issue should have been raised at the outset by both parties.

It was rejected that the High Court had failed to apply public law principles, reading the judgment as a whole. Even if that was wrong, the judge would have reached the same conclusion in any event.

Construction of s.193(6)(d)

On the construction of s.193(6)(d) (ending the duty due to ceasing to occupy), Birmingham argued that this provision contained no requirement that the accommodation ‘made available’ to an applicant must be suitable. The Court considered the context of Part 7 HA 1996, which includes several references to accommodation being ‘made available’ for an applicant’s occupation. Section 206 ‘interlocks’ with local authorities’ obligations to secure that accommodation is available for applicants, such that:

107. […] an authority may only discharge its housing functions under Part 7 by securing that accommodation is made available to an applicant which is suitable. If the accommodation is unsuitable the relevant function, including any duty, is not discharged.

[…]

109. Thus, read properly in context, s.193(6)(d) applies to a case where a person voluntarily ceases to occupy as his only or principal home accommodation which has been made available to him in accordance with s.206, that is accommodation which is “suitable” for him. But if that accommodation is not suitable then it has not been made available in accordance with s.206 and the duty under s.193(2) is not discharged by virtue of s.193(6)(d).

This accords with other provisions in s.193 concerning how the main housing duty is brought to an end, including the provisions concerning the refusal of an offer of accommodation which the authority considers to be suitable (s.193(5)) and refusal of offers of other types of accommodation, subject to the resolution of suitability (ss.193(7) and (7AA)). Similarly, the duty ceases when the applicant accepts an offer made under Part 6 or in the private sector (ss.193(6)(c), (cc) and (7AA)), ‘which, it may reasonably be supposed, the applicant considers suitable’ (§112).

The Court was unimpressed by the suggestion that its interpretation of s.193(6)(d) would have unreasonable consequences: for instance, that a person may leave accommodation made available in Birmingham and move to Manchester. Such a person would be unlikely to seek to enforce the first authority’s duties under s.193(2), is unlikely to get discretionary relief in respect of the same, and in any event the risk of the authority seeking to escape its duties by offering unsuitable accommodation had ‘far greater significance’ (§113).

Birmingham’s appeal therefore failed.

Thoughts

This judgment provides helpful clarification on the cross-cutting nature of s.206 suitability requirements in circumstances where a person could be considered to have ceased to occupy accommodation made available to them. The Court was alive to the practical consequences of accepting Birmingham’s interpretation of s.193(6)(d), noting that if the accommodation offered does not have to be suitable, then that would risk authorities being able to escape their obligations under the main housing duty by simply offering unsuitable accommodation to homeless applicants, which they then leave.

As an aside, it is notable that Birmingham repeatedly offered unsuitable accommodation which lacked the necessary disability adaptations (including an offer of the same unsuitable property twice). One may wonder whether Birmingham’s housing needs assessment was adequate and included sufficient appraisal of what accommodation would be suitable for the household, per s.189A(2)(b) HA 1996, as the nature of the necessary adjustments must have been foreseeable in advance.

The post On the interlocking requirements of suitability appeared first on Nearly Legal: Housing Law News and Comment.

A recap
The case was in the court of Appeal on 7 February 2025 (Giles’ note here ) proceedings began as an application for permission for judicial review in May 2024 (and Giles’ note here)

Mrs Bano was offered accommodation by Waltham Forest, in Derby, further to an “Offer Letter” dated 11 June 2020.  The letter was headed “offer of accommodation to end main housing duty under s.193 (2) of the Housing Act 1996”.  Waltham Forest had “decided to bring the duty under s.193(2) to an end by arranging an offer of an assured shorthold tenancy in the private sector with a fixed term of twenty-four months.” If Mrs Bano did not attend the property on the appointed day, she would be taken to have refused the accommodation.  Warnings were set out within the letter explained that the local authority considered that the offer of accommodation was suitable, and that the duty would be discharged “whether you accept or refuse the property.”  Further, “the consequences of you accepting or refusing the accommodation is that the Council will no longer be subject to any further duty to you under the homelessness legislation including any duty to provide temporary accommodation”

Solicitors for Mrs Bano maintained that the Offer Letter, following the case of Norton v Haringey (2022) EWCA Civ 1340, did not set out the effect of the Housing Act s.195A(2) and that as such the letter did not effectively end the duty.    Judicial review found that there must be a subsequent decision to end duty, after such a ‘prospective’ letter. The discharge was not ‘automatic’.

Waltham Forest issued an appeal on the basis that there was an alternative remedy to the judicial review which had been issued by Mrs Bano – a statutory review of the termination of the housing duty – and therefore no need for judicial review. The court of appeal considered whether it was possible for Mrs Bano to request a review based on the deficiencies in the Offer Letter.

The Court of Appeal found that s.193A(7) provided an automatic ending of the duty on acceptance or rejection of an offer. The local authority did not need to additionally notify an applicant that it was considered by the local authority that the duty was discharged.  Mrs Bano could have requested a review in relation to the Offer Letter on the basis that s.193 duty ceased.  As there had been an alternative cause of action, judicial review was not appropriate.

Supreme Court
Mrs Bano’s appeal to the supreme court was handed down in July 2026. In addition to the original parties, interveners included Shelter, the Social Housing Law Association and 14 London Boroughs. The case was academic; Mrs Bano and her family had been accommodated by Waltham Forest. The core issue remained the question of the effect of the Offer Letter.

The local authority’s position was that whether Mrs Bano accepted or refused the offer, its duty to secure accommodation for her automatically ceased in the operation of s.193(7AA), and a review could have been requested.

Mrs Bano’s position was that the local authority needed to take a definite decision that she had accepted or refused the accommodation offered and that it accordingly no longer owed her the main housing duty, and moreover that it needed then to notify her of that decision.

The Court considered the effect of s.193(7AA), (7AB), (7AC) (7F) and 8 and noted that for the local authority to make a compliant offer the requirements were

• That the applicant must be informed of the offer in writing,
• The accommodation must be in the definition of a private rented sector accommodation offer with a private landlord and for a fixed term of at least 12 months.
• The offer must explain the consequences of refusing the offer, the right to request a review of suitability of the accommodation, and the explanation of the position if the applicant unintentionally becomes homeless within 2 years.
• Before approving the offer, the local authority must be satisfied that the accommodation is suitable
• The local authority must be satisfied that the applicant is not precluded from acceptance of the offer because of contractual terms to which they are bound.

The court found that parliament had created the statutory review scheme and that to use the judicial review procedure would be to undermine the scheme designed by parliament.

On considering the factual background, the Supreme Court noted that while the Offer Letter was said to inform Mrs Bano of her right to request a review of the suitability of the accommodation offered, it did not inform her of the right to request a review of the ending of the main housing duty on the acceptance or refusal of the offer.

The appeal raised the following 3 grounds:

How the main housing duty comes to an end?
Does the main housing duty automatically cease on the acceptance or refusal of a private rented sector offer, OR does the local authority need to take a decision that the applicant has either accepted or refused the offer and the duty has ended AND that this decision should be notified to the applicant?Ordinary statutory interpretation of the words prevailed. The wording expressed that the duty had ceased, and the court contrasted the wording with other sections which operated such that the duty would end when the authority determined, decided or was satisfied of certain conditions.  The court considered the context of s.193(7AA) and its relationship to a right for a review – noting that s.202 envisages that the review right attaches to a decision communicated to the applicant, and that 21 days follow wherein a review may be requested.

It was argued for Mrs Bano that it could not be the case that the housing duty could simply cease without the acceptance or refusal of a part 6 or private rented sector offer, without there having been a decision actively made as to whether the offer was accepted or refused. The analogy of s193(5) was argued. That position was rejected by the supreme court who found that the Offer Letter brought the main housing duty to an end on acceptance or refusal, and the Offer Letter contained the reviewable decision.  It was rejected that the offer letter was merely an indication that the local authority intends to make a decision.

It was submitted that the short timescales for acceptance of the offer led to an absurd result where there could be a good reason for not attending a viewing of a prospective property, but that this failure would result in the discharge of the housing duty. While the court acknowledged that there were often very tight deadlines for acceptance involved, this was in the context of an imperfect system where the Landlord had competing requests for property.  The court reiterated that applicants should accept an offer and then as appropriate challenge the suitability of the offer.

The court concluded that in order for the duty to cease under s.193(7) or (7AA) that the decision had to be notified to the applicant, and if the decision had not been effectively notified then there may be a right to a review – with the necessary discussions about the extension of time under s.202(3).  It was noted by Shelter (intervening) that it is the practice of most local authorities to send a separate letter to applicants informing them of the discharge of the main housing duty.  The court rejected the argument that procedural fairness required notification of a decision to be communicated before it is binding on an applicant. In this case Mrs Bano was notified of the decision and she was able to challenge the decision by way of a review and if necessary to the county court on a point of law.

The clear meaning of section 193(7AA) is that if an applicant (a) accepts a private rented sector offer, or (b) refuses such an offer, then as a matter of law the local housing authority ceases to be subject to the main housing duty.

Was the Offer Letter a decision capable of being reviewed under s.202?
The Offer Letter told Mrs Bano that the main duty would cease to be owed to her upon acceptance or refusal of the accommodation. Although the Offer Letter was not fully compliant with the statutory requirement in s.193(7AB)(c), Mrs Bano did not challenge the decision, as she could have done. Her failure to challenge the decision did not alter the nature that the decision to end the housing duty was capable of being reviewed.

The characterisation of letters sent to Mrs Bano after the Offer Letter.
This ground focused on a letter of 30 October 2020, and the court considered whether that letter was a decision letter which would create a right for a review.  The letter of 30 October was confirmatory of a prior automatic discharge.  The supreme court found that such a confirmatory decision is not reviewable because in their view it would be to undermine the point of s.202(3) in achieving a finality in a case.It was noted that local authorities have wide discretion to extend the period of a review and that to extend time by a confirmatory decision would be to circumnavigate the discretion of a local authority.  The court found that it would not always be possible to identify what was, or was not, a confirmatory letter and that there could be difficulties in distinguishing this from a letter affirming the stance of a local authority.

In conclusion, the Supreme court found that the only letter sent by Waltham Forest in this matter which could trigger a review was the Offer Letter and the other correspondence did not communicate a reviewable decision.  This ground was successful, but that did not affect the outcome as the appeal was dismissed on the first two grounds.

Thoughts
The judgment draws a line in relation to any uncertainty that there may be in decisions where the duty is ended by the making of an offer in the private rented sector.   A review may be brought as to the suitability, or to the discharge of the duty itself, but the route to that is by statutory review at first instance.

A clear distinction is drawn by the court for temporary accommodation under s.193(5) (where the duty can be ended by an offer of accommodation refused by an applicant – provided that the consequence of the refusal is made clear to the applicant and the local authority notifies the applicant that they regard themselves as having discharged the duty). The court found that while there is notification under s.193(5), this is not necessary for s.193(7AA), and the practical distinguishing factor is the former is temporary accommodation and the later the offer of part 6 accommodation or the discharge to the private rented sector. While the wording of each section is different, objectively one wonders as to the full rationale as to why these two decisions should be treated differently. Is it because s.193(5) is only for temporary accommodation within the s.193 duty?

It seems inevitable that there will be applicants who find that the duty has ended – but discover this too late to challenge. Their rights to review are limited only to the 21 days permitted under s.202(3) or extensions as the local authority may be persuaded to give.   Will this become a new source of litigation as to whether the local authority agrees to extend in such circumstances?

The supreme court identified that it would be good practice to have informed Mrs Bano that the right to request a review is not limited to the suitability but that it also extends to the ending of the main duty on the acceptance or refusal of accommodation offered.  This takes us to the notion of prescribed information which sets out all the information that applicants need as to how a decision could be challenged. And this would be positive – ensuring both that the local authority provides comprehensive information as to their offers and decisions made which may be amenable to review, and allowing applicants to know and understand their rights, or to obtain further advice.

Bano reminds us that time is of the essence with all reviews requested, the necessity of getting early advice as to what can be challenged, and the imperative for the applicant to find a housing lawyer to support that process.

The post Back with a Bano appeared first on Nearly Legal: Housing Law News and Comment.

I’ve also now got control of the site and paid the relevant fees, so the site shouldn’t vanish again.

All being well, I’d hope to have the new writing team set up for 1 Oct 2026.

Thanks again for all your support and patience.

JBKC

The post An update appeared first on Nearly Legal: Housing Law News and Comment.