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

MR JUSTICE MOULD:

1. This case concerns a Saudi Arabian national who was granted leave to remain in the United Kingdom as a refugee on 15 December 2023. In early January 2024, the claimant applied to the defendant, as the local housing authority for housing assistance.

2. The principal issue that arose in relation to that application was whether she was a person in a priority need. As I say, she is a Saudi Arabian national and, as I understand it, the principal basis upon which she has been granted refugee status in this country is that she is a visibly transgender woman. Understandably, in identifying in that way she faced a real risk of persecution in the country of her birth.

3. The issue that arose on her application for housing assistance was whether she was in priority need, there being no doubt that she was homeless and eligible for assistance, as she was no longer being able to be accommodated in asylum accommodation.

4. As I understand it, although there are references to a number of provisions in the papers, the basis upon which she claimed and claims to be in priority need is that which is stated in section 189(1) (c) of the Housing Act 1996 . As I say, she claims to be a person who is vulnerable for some special reason, in particular the vulnerability that arises from identification as transgender, the social vulnerability that arises and the impact that results to her in terms of her mental wellbeing.

5. The defendant considered her application. On 27 June 2024 the defendant wrote to her explaining that they had reached the view that she was not in priority need, applying the well-known approach set out in recent Supreme Court jurisprudence, to which reference is made on page 3 of the defendant's letter. The approach is encapsulated in the bold typed text on that page, namely "whether a person is significantly more vulnerable than ordinarily vulnerable as a result of being rendered homeless when compared with an ordinary person if made homeless".

6. The author of the letter, the officer who made the decision, also referred to having given consideration to and taken full account of the Equality Act 2010 , which of course imposes the public sector equality duty, the claimant being a person who, as I understand it, is accepted to have protected characteristics.

7. That being the decision of the housing officer, shortly thereafter the claimant's solicitors applied, as was her right, for a review of that decision under sections 202 and 203 of the Housing Act 1996 . She also applied for the local authority to extend the temporary accommodation which had been provided to her pending the decision for a further period in the exercise of their power under section 188(3) of the 1996 Act . Shortly thereafter, in late July 2024, the defendant decided that it would provide temporary accommodation to the claimant pending the completion of the review process. As Ms Rowlands explains, that being a positive decision in the claimant's favour following the conventional practice, the defendant did not provide any reasons for that decision and simply gave notice of the fact that accommodation would be provided, as indeed it was.

8. The review process then took its course. The review officer issued what is known colloquially as a "minded to" letter under regulation 7(2) of The Homelessness (Review Procedure etc) Regulations 2018. That provision enables the reviewer to issue such a letter in the event that they consider there is a deficiency or irregularity in the original decision or in the manner in which it was made, which implies that the reviewing officer who decides to exercise that power will be able to point to the particular deficiency or irregularity which has motivated them to act in accordance with that power. But again, as I have been told, it has become the practice of housing authorities in carrying out section 202 reviews, I think possibly almost out of an abundance of caution, to issue "minded to" letters in the exercise of that power in order to enable the applicant to bring to their attention any factual information or other material which has arisen since the original decision by the housing officer; and thus ensure that when the final decision on review is made, it is not vulnerable to attack on the basis that it has been made on the basis of a partial misunderstanding or a lack of proper enquiry into the relevant facts and circumstances in relation to the applicant's position.

9. In this case, the review officer did issue a "minded to" letter on 6 March 2025.

10. Shortly thereafter, the eight week period within which the defendant was required to make its decision on the review expired. Following its expiry, as was her right, the claimant lodged an appeal to the county court on a point of law under section 204(1) (b) of the 1996 Act .

11. Shortly thereafter, the defendant's review officer issued his decision on the review. That was dated 8 April 2025. By that decision the defendant upheld the original decision of 27 June 2024.

12. The defendant then gave notice to the claimant that she should now leave the temporary accommodation hitherto provided pending the determination of the review. Her time in that accommodation was extended until 31 May 2025 to allow her to pursue enquiries with two charities with a view to seeing whether she could find accommodation through them. There was an application on her behalf to provide accommodation pending the outcome of the county court appeal under section 204 of the 2006 Act. That application was refused on 29 May 2024. So it was that on 31 May she left the temporary accommodation provided by the council under section 188(3) of the 1996 Act .

13. The next event was that on 16 June 2025, the defendant's solicitors wrote by email to the claimant's solicitors informing them that they had been instructed by the defendant that they wished to withdraw the review decision which had been issued on 8 April 2025. No explanation was given for that decision in that email. The claimant's solicitors responded immediately acknowledging the email from the defendant's solicitors and posing the question, "Please can you confirm that your client will be reinstating our client's accommodation under section 188(3) Housing Act 1996 pending a new review decision."

14. The defendant's solicitors responded on the same day indicating that her instructions were that the decision not to grant temporary accommodation pending appeal stood and that the local authority would carry out a fresh review. By way of response, the claimant's solicitors pointed out that her request had been accommodation pending the outcome of the fresh review under section 188(3) rather than a request for accommodation pending the determination of the appeal before the county court. That clarification having been offered, later on 16 June the defendant's solicitors responded confirming that their instructions were that temporary accommodation would not be provided pending the fresh review decision.

15. On the following day, 17 June 2025, the claimant's solicitors sent a pre-action protocol letter to the defendant threatening judicial review of the decision to decline to offer temporary accommodation to the claimant pursuant to section 188(3) of the 1996 Act . On 24 June 2025, the defendant responded to that letter in considerable detail explaining the defendant's reasons for declining to exercise its discretion under section 188(3) to provide temporary accommodation to the claimant pending the review. Reference was made to the leading authority of R v London Borough of Camden, ex parte Mohammed [1998] 30 HLR 315. The approach that the housing authority should take to the exercise of its power to provide temporary accommodation pending review as stated by Latham J in that case was summarised at the outset of that letter.

16. The letter then went on to root the decision not to exercise the discretion under section 188(3) in favour of the claimant in this case in an analysis of the underlying merits or strength of the claimant's case, that she was a person in priority need of housing by virtue of her vulnerabilities under section 189(1) (c) of the 1996 Act . The letter dealt in detail with the various grounds that were put forward in the claimant's pre-action protocol letter for the argument that the decision to decline to provide her with temporary accommodation was unlawful.

17. In an email of 25 June, the defendant's solicitors helpfully summarised the key considerations which the defendant had deployed as a framework for its decision in the light of Mohammed. Under the three headings which emerge from that case, the strength of the review case, new information and personal circumstances; and indicated that it was against those factors that the decision not to withdraw the Mohammed letter issued on 24 June had been made.

18. That was the position prior to the bringing of this claim. The reason why the defendant had decided that it should withdraw that decision is now known to be that it felt that it could not safely defend that decision against the appeal which had been brought by the claimant in the county court and that it needed to make a fresh determination of the review in the light of that fact. The claimant having applied to be accommodated temporarily in the exercise of the powers under section 188(3) of the 1996 Act , that application had been rejected for the reasons given in the defendant's letter of 24 June 2025 which the defendant's solicitor had confirmed as the basis for its decision in her subsequent email of 25 June 2025.

19. Against that necessarily rather detailed factual background, the claimant lodged her claim for judicial review on 30 June 2025 and at the same time made an application for urgent consideration for the grant of a mandatory order requiring the defendant to provide her with temporary accommodation pending the determination of the claim. That application was supported by witness statements from the claimant and from her senior case worker at her instructing solicitors.

20. That application for urgent interim relief came before Lang J on the papers on 1 July 2025. She directed that the defendant should forthwith provide the claimant with suitable interim accommodation pursuant to section 188(3) Housing Act 1996 pending the final determination of the claim or further order. She directed expedition of the claim. She abridged time for service of the acknowledgement of service and summary grounds of defence. At paragraph 6 she directed that the application for permission to apply for judicial review and for interim relief be listed for a hearing to be fixed as soon as possible from 16 July 2025 onwards. This is that hearing.

21. At the hearing today the claimant has been represented by Ms Steinhardt and the defendant by Ms Rowlands, both of whom have provided written submissions in advance. I am very grateful to them both for the clarity of their written submissions and of the oral submissions I have heard today.

22. The question whether to provide temporary accommodation to an applicant pending the outcome of a review under section 188(3) of the 1996 Act is plainly a matter for the local housing authority, here the defendant, in the exercise of its discretion. Guidance on the approach that the housing authority should take in the exercise of that discretion was provided in the case of Mohammed to which I have referred, see in particular page 321 and in the clarification of Latham J's guidance in Mohammed given by Brooke LJ in R v Newham London Borough Council, ex parte Lumley [2001] 33 HLR 11 at [53] to [55]. It is unnecessary for me to read those passages into this judgment. They are very well-known and familiar and there was no real issue between counsel as to their applicability and as to what it is the local authority was required to consider. In my judgment, however, the position in the present case is rather different.

23. Here, the local authority decided in July 2024 that it should exercise its discretion in favour of providing temporary accommodation to the claimant pending the determination of her review of the housing officer's decision communicated in the letter of 27 June 2024. Although the defendant did not give reasons for its decision to exercise its discretion in her favour at that time, it will have had reasons for so doing. It seems to me that it is at least reasonably arguable that in deciding, as the defendant did on 16 June 2025 that it would not reinstate that temporary accommodation notwithstanding the fact that it had decided to reinstate the review procedure, the defendant should address why it was that it had decided to reach the opposite view in June 2025 to that which it had reached at an earlier stage in the review process in July 2024.

24. I asked Ms Rowlands in the course of submissions whether it was her case that that previous decision and the reasons for it were a material consideration to the decision which is now under challenge. She described it as "background information" and, as I understood her submission, it was that it was not material and that the factors that the defendant was required to take into account were limited to those stated in the Mohammed and the Lumley judgments.

25. It is, in my view, plainly arguable that in a case such as the present one, the previous decision and the reasons for it are at the very least a material consideration and that the defendant is required to give some explanation, adequately to show why it is that it has taken the view that it should decline to exercise its discretionary power in the claimant's favour in July 2025, notwithstanding that it had decided that it should exercise that power in her favour in June 2024.

26. It may be that the defendant will have had perfectly proper and sound reasons for reaching the different conclusion that it did in July 2025 to that which it reached in June 2024. It may be that things have occurred in the interim period which justified that different decision. But there is no evidence before me to supplement what is said in the review officer's letter of 24 June 2025 and the plain fact is that the review officer did not grapple with that issue at all in his letter. There is no attempt to explain what has changed, nor is there any attempt to explain the reasons which led the council to the view that in July 2024 it should make temporary accommodation available to the claimant.

27. What is clear is that, because the defendant has felt that it could not safely defend the decision that was promulgated on 8 April this year, there is now a pending review process. That fact alone calls for some explanation as to why, albeit that at an earlier stage in that process, temporary accommodation was made available, the decision has been taken, notwithstanding that process remains in train, that temporary accommodation should not be reinstated.

28. For those reasons I consider that the claim is arguable. Applying the conventional approach to the grant of interim relief, it seems to me that there is a serious issue to be tried as to whether the decision not to provide temporary accommodation was a lawful decision. I am satisfied that the case is of sufficient strength to provide a principled basis for the grant of a mandatory order in the terms in which it was granted by Lang J on 1 July and to maintain that order following the hearing before me today.

29. I put it that way because I am conscious of the fact that, given that the order is mandatory in effect, a strong prima facie case for the grant of relief needs to be advanced.

30. For the reasons I have given, I am satisfied that that is the case. There is a serious issue to be tried. The consequence of discharging the order is that the claimant would return to street homelessness and that, in my judgment, favours the maintenance of the order for as long as is necessary to enable the defendant to complete the review process which it reinstated on 16 June 2025.

31. What I propose, therefore, is to make an order that permission is granted for judicial review, the defendant shall continue to provide the claimant with suitable interim accommodation in the terms stated in paragraph 1 of Lang J's order of 1 July 2025. There will be liberty to the defendant to apply on 48 hours' notice to vary or discharge the order that I make. The claim for judicial review will continue to be expedited. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]