Housing E-Flash: Norton v London Borough of Haringey [2025] EWCA Civ 746 (17 June 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/746.html
The issue on this appeal was whether a local housing authority is precluded from determining the suitability of offered accommodation if it has not prepared a lawful section 189A(1) assessment (“HNA”), and the further documentation required by that section (i.e. a Personal Housing Plan, “PHP”).
HHJ Saggerson rejected the section 204 appeal in the County Court, deciding that the preparation of a lawful section 189A assessment is not a condition precedent to a lawful determination of the suitability of offered accommodation. He noted that section 189A does not impose obligations on the reviewing officer and the Act does not provide that a suitability decision is unlawful in the absence of compliance with section 189A. Rather, if a flawed HNA or PHP materially contributes to a suitability decision that may also result in the suitability decision being flawed. It does not follow that the absence of a section 189A assessment inexorably means the suitability decision is unlawful. However, the acid test is whether the reviewing officer had sufficient information to make a determination.
The Court of Appeal dismissed the applicant’s second appeal and confirmed that an otherwise lawful decision on suitability is not automatically vitiated by a failure to carry out a section 189A assessment. The proper question is whether the decision maker had sufficient information and whether the decision was lawful, though the Court approved a number of decisions of the High Court which determined this would not be the case if the suitability decision were based on a flawed HNA.
Facts
Mr Norton is a single parent who suffers from epilepsy and who lives with his son. He applied to Haringey as homeless. Haringey accepted that Mr Norton was owed the duty under section 193 (2). They offered him private sector accommodation which they said was suitable accommodation. However, that offer did not discharge the section 193 duty entirely.
Mr Norton challenged the suitability of the accommodation on the grounds of its layout and noise nuisance. Haringey rejected those complaints on review. They also failed at the section 204 appeal. Mr Norton was granted permission to appeal to the Court of Appeal on the point, also raised on review, that the HNA was not lawful (because it was significantly out of date) and therefore no lawful decision on suitability could be made. Mr Norton had brought judicial review against the allegedly unlawful assessment, which was compromised on the basis that Haringey would carry out a revised HNA. However, the revised HNA was not completed by the time of the suitability review decision.
Appeal
Considering the cases of XY v Haringey LBC [2019] EWHC 2276 (Admin), R (YR) v Lambeth LBC [2022] EWHC 2813 (Admin), [2023] HLR 16, and UO v Redbridge LBC [2023] EWHC 1355 (Admin), [2023] HLR 39, Lord Justice Lewison said at [31] that he had no doubt that “an assessment of suitability based on an unlawful or otherwise legally flawed assessment under section 189A is itself legally flawed.”
Considering the law on invalidity of public acts in light of an earlier breach of imperative statutory requirements, which requires consideration whether any prejudice or injustice arises, and Parliament’s intended consequences of failure to comply, the Court underlined that the principles in R v Soneji [2005] UKHL 49, [2006] 1 AC 340 and later cases were not confined to purely procedural requirements.
Noting that “the point taken on Mr Norton's behalf is a purely procedural and technical point” (the factual challenge to the suitability decision having failed), the Court held that he had lost nothing of value because he had received a decision on suitability which contained no legal flaw. It confirmed that the test of suitability is freestanding and does not require completion or consideration of an HNA. The Court rejected the argument that completion of a lawful section 189A assessment is a condition precedent to any decision under Part VII Housing Act 1996, on the basis that Parliament could not have intended that outcome, which would partially paralyse an authority in performing its duties.
The proper question is therefore whether a deficiency in the HNA, or absence of an HNA and thus of relevant information, affected the suitability decision.
