Possible Error In The Homelessness Code Of Guidance For Local Authorities on Reviewing Housing Needs Assessments

This may just be me being thick and missing something but there seems to be an error in the first sentence of paragraph 11.32 of the Code of Guidance  which states:

11.32 Assessments and personalised housing plans must be kept under review throughout the prevention and relief stages, and any amendments notified to the applicant.

The implication of this which has been pointed out to me by local authorities is that there is no obligation to keep an assessment and Personalised Housing Plan under review once a duty has been accepted under Section 193 of Housing Act 1996. That does seem to be the only way of reading paragraph 11.32.

The reasons that I think the Code of Guidance is wrong on this point are:-

  1. Section 189A (9) of Housing Act 1996 which sets out the actual law/rules for assessment states.

    Until such time as the authority consider that they owe the applicant no duty under any of the following sections of this Part, the authority must keep under review—

    (a)their assessment of the applicant's case, and

    (b)the appropriateness of any agreement reached under subsection (4) or steps recorded under subsection (6)(b) or (c).

    The "following sections of this part" referred to here appear to include Section 193 and is not limited to the Prevention and Relief Duties

2. As can be seen from the judgement in the recent cases such as YR, R (On the Application Of) v London Borough of Lambeth (2022) the need to carry out and update an assessment of the applicant's housing needs is of central importance to what constitutes suitable temporary accommodation the Act. I can't see any reason for authorities being under such onerous duties in relation assessing what might be suitable when poviding temporary accommodation but not being under the same duty in relation an offer of non temporary accommodation.

There have been a number of cases in which is has been held that the Code of Guidance is only something to have regard to and does not set out binding rules. The most recent of these is Birmingham CC v Balog [2013] EWCA Civ 1582 in which Lord Justice Kitchin held at paragraph 55:

"The statutory guidance is precisely that. It is something to which a Review Officer must have regard but it is something from which he can depart with good reason."

My view based on the above is that the wording of Section 189A means that a local authority remain under a duty to keep a housing needs assessment and Personalised Housing Plan under review not just up to the end of the Relief Duty but until the duty to secure accommodation is made available under Section 193 of the Act has been discharged. In as much as the Code of Guidance does not follow this there is good reason to depart from it.

I would be very interested to hear what anyone else thinks about this.

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