LLJ, R (on the application of) v The London Borough of Hackney

Neutral Citation Number: [2026] EWHC 1145 (Admin) Case No: AC-2025-LON-002290  IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION Royal Courts of Justice, Strand, London, WC2A 2LL Date: 14 May 2026 Before : MR JUSTICE COPPEL – – – – – – – – – – – – – – – – – – – – – Between : THE KING on the application of LLJ Claimant – and – THE LONDON BOROUGH OF HACKNEY Defendant – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – Zia Nabi (instructed by University House Legal Advice Centre) for the Claimant Angela Piears (instructed by London Borough of Hackney Legal Services) for the Defendant Hearing dates: Thursday 16 April 2026 – – – – – – – – – – – – – – – – – – – – – Approved Judgment This judgment was handed down remotely at 10:00am on Thursday 14 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ……………………….. Mr Justice Coppel: The Claim:

1. The Claimant challenges the decision of the Defendant (“the Council”) dated 16 April 2025 in which the Council rejected her appeal against a decision taken in November 2024 to place her in Band B of the Council’s Housing Register (“the appeal decision”).

2. The appeal decision applied the Council’s Allocations Policy (“the Allocations Policy”), adopted pursuant to s. 166A of the Housing Act 1996 (“the Act”), by which it determines priorities for allocation of social housing. By virtue of being placed in Band B, which indicates that she and her household have “significant housing need” (§3.2.2 of the Allocations Policy), the Claimant must bid for suitable social housing which becomes available and there is no guarantee when she might be successful in such a bid. The Council currently estimates that it will take 9 years for her to successfully bid for a 3-bedroom property, which is the minimum appropriate size for the Claimant’s household according to the Council’s published guidance to applicants.

3. The Claimant maintains that she should have been placed in Band A of the housing register, which is the band for households who “have been accepted as needing emergency rehousing; households where a move is imperative to alleviate the immediate risk to the applicant’s well being or the well being of a member of their household and there is no alternative but to rehouse that household in housing in Hackney” (§3.2.1 of the Allocations Policy). She has been living together with her husband and three children, aged 8, 6 and 2 at the time of the appeal decision, in a third floor, one bedroom flat rented to her by the Peabody Trust (“Peabody”). Her son, her middle child, who is to be known in these proceedings as LLY, is described by her as “severely disabled”, and as having “severe autism, global development delays, lack of speech and communication, increased movements and activity levels, hyperactivity, lack of danger awareness and lack of selfcare skills”. The Claimant’s case is that the flat is unsuitable for and dangerous to LLY, and is highly detrimental to his development. The flat also suffers from significant condensation and mould which has rendered the one bedroom uninhabitable and has caused regular respiratory illnesses in the children and exacerbated the asthma suffered by the Claimant’s husband. If the Claimant had been placed in Band A, she would have become entitled to a direct offer of accommodation by the Council, presumably on a timescale consonant with her needing emergency rehousing, rather than having to bid along with others for a particular property.

4. The Claimant submits that the appeal decision failed to apply the test prescribed by the Allocations Policy for Band A and reached a number of conclusions about her circumstances which were unsupported by the evidence and were irrational, leading to an overall conclusion that she did not qualify for Band A, which she also criticises as irrational. At the hearing of the Claim, the Council informed me that it accepted certain of the Claimant’s criticisms, including that it had applied the wrong legal test in the appeal decision, and also that – unbeknownst to the Claimant – it had withdrawn the appeal decision as a result. However, important criticisms regarding the treatment of the evidence provided to the Council about the Claimant’s circumstances remained in dispute. The Council invited me not to rule upon these outstanding criticisms because the proceedings had become academic as a result of the withdrawal of the appeal decision.

5. For the reasons set out below, I have decided that (a) I should determine the claim, notwithstanding the Council’s acceptance that the appeal decision was erroneous and should be withdrawn, and (b) the appeal decision was unlawful, both for the reasons accepted by the Council and for certain other reasons.

6. In the remainder of this judgment, I will address: i) The living conditions of the Claimant and her family (§§7-8). ii) The appeal decision (§§9-12). iii) The Council’s offer to settle the claim (§§13-27). iv) Should the Court determine the merits of the challenge to the appeal decision? (§§28-32). v) The merits of the claim (§§33-42). vi) Relief (§43). The living conditions of the Claimant and her family

7. The living conditions of the Claimant and her family have been described in a range of letters and other communications to the Council, which were provided to the decision-maker (Ms Pat Parkinson) for the purposes of the appeal decision. A convenient summary is to be found in a letter dated 26 November 2024 from “Hackney Ark”, a Children and Young Person’s Centre for Development and Disability attached to the Homerton Healthcare NHS Foundation Trust. Hackney Ark has been actively involved in caring for LLY. Mr Khan of Hackney Ark wrote as follows: “I am writing to urgently request the immediate rehousing of [LLY] and his family to safer accommodation that better supports his health, safety, and development. [LLY] is a child known to multiple services at Hackney Ark Children’s Centre, including the Community Paediatric Team, Speech and Language Therapy, and Occupational Therapy. He has been diagnosed with autism and global developmental delay, resulting in a severe impairment of intelligence equivalent to the developmental stage of a 12–18-month-old child. These diagnoses confirm arrested and incomplete physical brain development. Additionally, [LLY] has been diagnosed with a movement disorder and exhibits abnormally hyperactive behaviours. The family’s current living conditions are gravely impacting [LLY’s] health and development. The property is uninhabitable due to poor ventilation, severe damp, and mould, which significantly exceed the national threshold, as confirmed by a consultant’s report. These issues are exacerbating [LLY’s] respiratory problems, including constant wheezing, coughing, nasal congestion, sneezing, eye irritation and recurring chest infections. His symptoms often require him to leave school early, disrupting his education. The mould also poses a serious risk of neurotoxicity, potentially further impairing his cognitive function. The family have also reported that the house is unbearably cold, regardless of how much heating is applied as the damp in the property is so severe. [LLY] and his two sisters are constantly falling ill and having their sleep deprived because of these horrible living conditions. The overcrowding in the property is another critical concern. [LLY] shares a bed with four family members, resulting in sleep deprivation that worsens his emotional dysregulation. He becomes dysregulated easily at night due to being woken up when there is any movement and contact from others in the bed. The lack of space further restricts his ability to self-regulate and engage in activities essential for his development. Moreover, his hyperactive and unsafe behaviours, such as climbing and scratching walls, are heightened by the overcrowded conditions. [LLY’s] Speech and Language therapists have identified that he has a choking hazard due to his hyperactivity even when eating. While eating, [LLY] needs to be sat down but there is very limited space for a table and chair for him. [LLY] needs more space to walk/play and to regulate himself. There is also not enough space for his sibling to sit down and do homework. The property being overcrowded enhances these difficulties for [LLY] and the rest of the family. Additionally, the overcrowding presents an increased fire risk which as has been reported by the Health Visitor and Medical Assessor [sic]. The family’s health is collectively deteriorating due to these living conditions. Both parents suffer from respiratory issues exacerbated by the damp and mould, forcing them to take frequent sick leave. Father reports that he has asthma and has to frequently take time off work to recover. As such, the family’s financial situation has worsened, and they have recently applied for Universal Credit due to reduced income. [LLY’s] development is regressing due to the respiratory symptoms mentioned and his sleep deprivation. He cannot complete a full day at school (Shacklewell Primary) regularly and has been frequently sent home due to being sick and presenting with respiratory issues. These are not caused by seasonal changes but due to his ongoing exposure to the damp and mould in the property. That is directly affecting his learning and development, and his overall quality of life. His school and professionals involved in his care are concerned about [LLY’s] development and general wellbeing and that of his siblings. The property’s third-floor location, with no lift access, adds another layer of difficulty. [LLY’s] lack of danger awareness and frequent falls pose serious safety risks. Occupational Therapy assessments have highlighted the danger of him potentially falling through windows. The family urgently requires a ground-floor property to address these risks and accommodate his mother’s mobility challenges due to her back condition, for which she sees a Physiotherapist. Taking [LLY] and his sibling upstairs is proving ever more difficult for mum especially when [LLY] has a tendency to run or jump at every opportunity and requires constant supervision and restraint. Dr Melissa Rooplal (Paediatrician) and other professionals have serious concerns and have written about these dangers, urgently requesting a ground floor property for his safety. [LLY’s] parents have reported that they have made previously made complaints to say that the property is uninhabitable in the current state. They have urgently requested rehousing due to the health and safety risks to [LLY]. The case has been referred to the rehousing team, but no further action has been taken yet. The family have been told they are eligible for a 4-bedroom property and in 2020 were given a B1 banding due to [LLY’s] mother’s own health conditions. However, this is not sufficient due to the ongoing health issues for [LLY] and needs to be raised to urgent rehousing. In summary, the severe mould, overcrowding, and unsuitable location of the property are highly detrimental [to LLY’s] health, development, education and overall quality of life, as well as the wellbeing of his family. I hope this letter underscores the urgency of their situation and leads to immediate action to rehouse the family in appropriate accommodation.”

8. Other correspondence, also sent to the Council, adds some relevant points: a) A letter dated 27 November 2024 from LLY’s GP repeated the point that the family were suffering from repeated respiratory illnesses as a result of damp, cold and mould. The GP also stated that lack of sleep (caused by overcrowding and respiratory illnesses) was “worsening [LLY’s] dysregulation”. The GP concluded that “lack of sleep and lack of space is affecting [LLY] and his sibling’s physical health and development and wellbeing”. b) A letter dated 12 December 2024 from the headteacher of LLY’s primary school stated that due to overcrowding and sleep deprivation, LLY “struggles with emotional regulation, frequent injuries, and learning delays due to exhaustion and illness” and his older sister “faces difficulties concentrating on her education, completing homework, and meeting academic milestones”. Further, “lack of a safe, quiet area prevents [LLY] from meeting his sensory needs and exacerbates emotional outbursts and destructive behaviours”. He concluded: “The family’s current living conditions are not only detrimental to their health and wellbeing but also pose life-threatening risks to [LLY]”. c) A letter from Hackney Ark dated 27 March 2025 stated: “[LLY] has an unstable gait and attends podiatry appointments four times a year. The lack of space in the home makes it impossible for him to practice walking safely, leading to frequent falls, collisions with furniture, and injuries to himself and his siblings. At night, his movement disturbs his siblings’ sleep, exacerbating the distress of the entire family”. There was a fire safety risk due to the main exit door from the flat not opening properly due to overcrowding. Also, “[LLY] requires a structured environment with designated areas for learning, therapy, and sensory regulation. However, the lack of space and essentials (such as a table and chair for homework and activities) prevents the implementation of critical early intervention strategies, negating the efforts of the NHS and his school to support his development”. d) A letter dated 25 March 2025 from the Assistant Headteacher of LLY’s primary school stated that overcrowding and sleep deprivation was “having a profoundly damaging effect on [LLY and his sister’s] physical and cognitive development”. e) A report to Peabody’s housing management function from one of its surveyors, which was provided on 27 February 2025, described the bedroom in the Claimant’s flat as “slightly bigger than a box room”. It highlighted the problem of mould and condensation in the bedroom and emphasised that this was caused by overcrowding rather than by anything that could be repaired. A later visit by the surveyor, on 6 June 2025, so after the appeal decision, reported that the bedroom was no longer in use due to mould and condensation and that the family was sleeping in the hallway and living room. The appeal decision

9. Section 166A(9) of the Act requires local authorities to provide a “right to request a review”, of a decision on an application to be added to the housing register. Appendix 4 to the Council’s Allocations Policy provides for a right of “appeal” against such decisions. A decision on an appeal is a final decision, subject only to judicial review, but Appendix 4 also makes provision for “reviews”, which may be scheduled or ad hoc, and check for changes of circumstances so as to ensure that an applicant remains eligible to be on the housing register, with the level of priority previously awarded.

10. In the appeal decision, Ms Parkinson listed the documents that she had considered when making her decision, which were (a) the Claimant’s housing register application, (b) the Council’s Allocations Policy, and (c) “Medical assessment/outcome”. The latter was a reference to a report completed on 7 December 2023 by the “Medical Assessment Team” of the Council’s housing department, following a visit to the Claimant’s flat on 28 November 2023. This concluded that LLY had “Significant Medical Need” and that the flat was “not suitable for [LLY] due to his medical needs”. Ms Parkinson set out the Claimant’s arguments in favour of her appeal, which referred to “professional letters” previously provided to the Council, but there is no indication in the appeal decision, other than the list of documents just mentioned, whether or not Ms Parkinson had considered those letters (which I apprehend included the letters mentioned in §§7-8 above).

11. Ms Parkinson decided that the Claimant’s circumstances were “not deemed exceptional” and were not an emergency so as to justify Band A categorisation. She continued: “While it is acknowledged that your son [LLY] have been awarded [sic] significant medical need, your circumstances are not deemed an emergency to be placed into Band A due to the following: • Neither you or your son [LLY] are a hospital discharge patient who are currently bed blocking and the hospital cannot discharge them into your property due to the property being a high risk to life or limb. • You are not deemed to be housebound and permanently restricted to the property due to your back pain and cervical health problems. You are able access the rooms [sic] and go in and out of the property. There is no indication these health conditions are worsened by the property or living conditions. • You and your household members are residing in a 1-bedroom property where risks have been minimized by installing locks on the windows and your son is cannot reach the locks on the front door [sic]. Poor ventilation and asbestos are issues to be raised with your landlord to remedy. Decluttering and seeking support to declutter your home is advisable as the property was observed to be cluttered with a high volume of toys and furniture. You are able to access essential rooms in your home and decluttering your home will create space. Poor ventilation and asbestos are disrepair matters and the first initial contact should be with your landlord, Peabody Trust, to remedy any defects. … I have considered the medical conditions you have declared to the Council regarding yourself and [LLY] and I am satisfied that these are not caused by the layout, location or fabric of the property. There is no indication these conditions are worsened by the property or living conditions. Appeal decision outcome I have considered all the information provided and I have decided to uphold the appeal in regards to the medical assessment outcome and the housing register decision. The reason for my decision is due to the following reasons: • No evidence to support that you or your household members are at a high risk to life and limb. • No evidence that either you or a household member are a hospital discharge patient that cannot access your property externally or internally. • You do not meet the criteria for rehousing in an emergency. • You do not meet the threshold to be placed into Band A.”

12. Contrary to the description of the “appeal decision outcome”, Ms Parkinson decided to reject the appeal not to uphold it, as is clear from the remainder of the quotation. The Council’s offer of settlement

13. Permission for judicial review, and expedition, was granted by Mould J on 27 February 2026. The hearing of the claim was listed for 16 April 2026. On 16 March 2026, the Council wrote a letter to the Claimant’s representatives entitled “Open Offer to Settle Judicial Review Proceedings”. The offer was as follows: “..I am instructed to make a formal open offer to settle the current judicial review proceedings on the following terms:

1. The claim be withdrawn by consent.

2. The London Borough of Hackney will pay your reasonable costs, to be agreed or assessed.

3. The decision maker will conduct a new review of the matter and provide a new decision. Should the court find in favour of the claimant, the outcome would be identical: the decision would be quashed, and a further examination of the facts would be directed, resulting in a new decision. Proceeding with the appeal will not allow for any other position to be reached by the court and amounts to our proposals for settlement at this stage and therefore represents a waste of time and resources for both the court and the parties, as well as unnecessary costs, if the matter is not settled as proposed. .. Should you not agree, we intend to bring this letter to the attention of the court and asks for costs against you. We also remind you of the duty of the parties to assists the court in promoting the overriding objective, which includes saving time and costs.”

14. The offer was not immediately accepted by the Claimant, and the Council proceeded to file its Detailed Grounds of Defence (“DGDs”) on 27 March 2026. In the DGDs, the Council mounted a strong defence of the merits of the appeal decision, asserting that the Allocations Policy had been correctly interpreted and applied, that all relevant matters had been taken into consideration and that a rational (and correct) decision had been reached to place the Claimant in Band B (§§42-43). The DGDs also noted (in §44) that the Council had agreed to review the appeal decision and invited the Claimant to withdraw the Claim and that the Council was “ready, willing and waiting to process an application through the homelessness route to provide the Claimant with alternative accommodation”. The latter point referred to an earlier offer by the Council to treat the Claimant as homeless, and eligible for the provision of housing under Part VII of the Act, which she had rejected.

15. The terms of the Council’s offer raised a number of questions. Had the Council withdrawn the appeal decision or only offered to do so if the Claimant agreed to withdraw the Claim? Was the Council offering to conduct a fresh appeal or – as the offer stated – a “review”, which had a distinct status within the Allocations Policy? If the latter, would it be incumbent upon the Claimant to demonstrate a relevant change of circumstances since the appeal decision? Did the Council accept – contrary to the DGDs – that there was any flaw in the appeal decision (since, if not, it seemed unlikely that a fresh decision would reach a different outcome)? I put these questions to Ms Piears, representing the Council, who appeared before me without any solicitor or client support. Upon taking instructions by telephone, she informed me: i) The Council’s offer had intended to convey to the Claimant that the appeal decision had already been withdrawn (this being “implicit” in the words used). ii) The reasons why the appeal decision had been withdrawn were that the Council accepted that (i) Ms Parkinson had applied the wrong legal test when asking herself whether the Claimant or members of her household were “at high risk to life and limb”, and (ii) she had incorrectly interpreted the surveyor’s report from February 2025 (referred to in §8e above) as indicating that damp and mould in the flat were disrepair issues for Peabody to fix rather than being caused by overcrowding. iii) The Council’s offer had been to take a fresh decision on the Claimant’s appeal, rather than to “review” her Band B status in accordance with the Allocations Policy.

16. These instructions raised a number of additional questions, not least as to why the offer letter had been worded in the way that it was and why the DGDs and Ms Piears’ Skeleton Argument dated 12 April 2026 had not made clear that the appeal decision had been withdrawn and why. On the contrary, the Skeleton Argument (a) adopted the DGDs (§3), (b) stated that the Council had offered to carry out a new review but that it had not yet done so because its offer had not been accepted (§20) and (c) argued further that an order of the Court quashing the appeal decision was unnecessary because of the offer (§32). Whereas if the appeal decision had indeed been withdrawn, the Council would be obliged to take a fresh decision as the Claimant’s appeal would not have been determined, regardless of whether its offer to settle the proceedings was accepted, and a quashing order could not be granted because there was no extant decision to quash.

17. I was not prepared to accept Ms Piears’ report of her instructions without further explanation, and I directed that her Instructing Solicitor file a witness statement explaining when the appeal decision had been withdrawn and why it had been withdrawn and providing any contemporaneous documentary evidence of its withdrawal. In giving that direction, I was mindful that the Council had not yet filed any evidence in the proceedings and that if it had filed a witness statement alongside the DGDs, as would be usual in a judicial review, much of the confusion surrounding its settlement offer might have been averted.

18. The witness statement was duly filed on 24 April 2026. It stated, in summary: i) Following the Order granting permission (27 February 2026), Ms George had given “further and deeper scrutiny” to the appeal decision and “found that it had some insurmountable difficulties” (§8). These were that “there was a misinterpretation of the surveyor’s report in that it was construed in the context of disrepair, rather than overcrowding and the wrong test was used for consideration of an Allocation to Band A” (§9). ii) She had accordingly advised her clients to withdraw the appeal decision and to settle the claim, including by paying the Claimant’s reasonable costs (§11). iii) It was implicit in the offer made to the Claimant of a fresh review that the appeal decision would be withdrawn (§13). An email of 6 March 2026 at 08.27 was provided, expressing the agreement of Ms George’s client department to “withdraw the decision and conduct a fresh review addressing all points”. iv) “I understand that the Court has asked specifically when the decision was withdrawn. The records clearly evidence the intention and decision to withdraw. These negotiations were conducted in the context where the deficiencies in the original decision had been observed and considered against the likelihood of success” (§15).

19. Ms George’s witness statement provoked a response from the Claimant, pointing out that she had avoided providing a direct answer to my question as to when the appeal decision had been withdrawn. Reading between the lines, the decision had not yet been withdrawn. It was also noted that no explanation had been provided as to why, despite Ms George finding “insurmountable difficulties” with the appeal decision, the Council had mounted an unequivocal defence of the appeal decision in its DGDs and Skeleton Argument.

20. Ms George responded, in an email of 27 April 2026 at 15.55. She asserted that it was “usual” during negotiations to indicate that the Council would withdraw a decision but for a consent order, once agreed, to state “decision withdrawn”. Here, it was clear that the Council had decided, in advance of agreement with the Claimant, that the decision would be withdrawn. But for the avoidance of doubt the decision had now been withdrawn. She provided an email from an operations manager in the Council’s Benefits and Homeless Prevention Service dated 27 April 2026 at 15.39 stating that “Following our recent discussion, I can confirm that the appeal decision of 16 April 2026 [sic] is withdrawn”. Ms George did not explain, either in her witness statement or in this supplementary email, why Ms Piears had been instructed, and had conveyed to me during the hearing, that the appeal decision had already been withdrawn when it had not been.

21. Claimants in judicial review proceedings are often reminded of the necessity of reassessing the viability and propriety of their claim as it progresses, and as evidence and argument emerges from the defendant’s side (see, for example, §15.2.4 of the Administrative Court Guide (2025)). However, it is also good practice, and in accordance with the overriding objective stated in Part 1 of the Civil Procedure Rules, for a defendant to judicial review proceedings to reassess the decision which has given rise to the claim in the face of meritorious arguments advanced by a claimant, and in particular to consider whether to withdraw the decision (if it has the legal power to do so) or devise some other way of compromising the proceedings.  In considering its position on settlement of judicial review proceedings, a defendant authority should keep well in mind that judicial review is not to be conducted as ordinary, adversarial litigation would be (Belize Alliance of Conservation NGOs v Department of the Environment [2003] UKPC 63; [2004] 1 WLR 2839, §68).  Rather, the relationship between the Administrative Court and defendants to judicial review claims is “one of partnership based on a common aim, namely the maintenance of the highest standards of public administration” (as per the classic explanation of the nature of judicial review by Sir John Donaldson MR in R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, at 945c).  This in turn means that defendant authorities should “explain fully what they have done and why they have done it, but are not partisan in their own defence” (at 945e).  These standards, which are more shortly referred to as duties of candour and cooperation with the Court (see the Administrative Court Guide (2025), §15.3.1), apply as much to steps by a public body taken with the aim of settling proceedings as they do to any other stage in the life of a judicial review claim.

22. In my judgment, the Council’s conduct in offering to compromise this claim fell short of the necessary standards.  First, it is apparent that the Council did not give serious consideration to the legality of the appeal decision until early March 2026, after permission had been granted.  This should have happened much sooner, when responding to the Claimant’s pre-action letter (on 18 June 2025) and then again when deciding to defend the claim in its Acknowledgment of Service and Summary Grounds of Resistance (4 August 2025).  The Claimant’s pre-action letter had argued that she met the “high risk to life and limb” test posited by Ms Parkinson rather than that this was not the correct test, but it relied upon the Peabody surveyor’s report which Ms George now accepts had been misinterpreted.  The Statement of Facts and Grounds (14 July 2025) was directed at the Band A test in the Allocations Policy (immediate risk to well-being) and also relied upon the Peabody surveyor’s report, so took both of the points which the Council later appreciated caused “insurmountable difficulties” for the appeal decision.

23. It is the duty of a defendant to any threatened or issued judicial review claim to give careful consideration to the merits of their position at the pre-action stage and then again at the Acknowledgment of Service stage, and to act upon any “insurmountable difficulties” that come to light, rather than robustly defending the claim unless and until permission is granted. At the pre-action stage, a prospective defendant cannot comply with §9 of the Judicial Review Pre-Action Protocol, by giving consideration to alternative dispute resolution, if it has not carefully considered the merits of its legal position. Once proceedings have been commenced, the duty of co-operation with the Court means that defendants and their representatives have an ongoing duty to consider whether their defence remains viable, particularly – but not only – after the grant of permission (see the Administrative Court Guide (2025), §15.3.6). This was especially important in the present case, where every week of delay was a week in which the Claimant and her family were living in accommodation which was at the very least deeply unsuitable and on the Claimant’s case was positively dangerous.

24. Second, once the Council had decided that the appeal decision faced “insurmountable difficulties” and would be withdrawn, it should have proceeded to withdraw the appeal decision and to inform the Claimant and the Court why it had done so or at the very least to indicate unequivocally that the decision would be withdrawn and why, rather than making withdrawal of the appeal decision conditional upon the withdrawal of the Claim.  This would not have materially weakened the Council’s position in terms of settling the proceedings (it already having accepted that it would pay the Claimant’s costs).  It was most certainly not in accordance with the Council’s duty of candour and cooperation with the Court to mount, in the DGDs, a robust defence of a decision which it had already decided to withdraw because of having no properly arguable defence to the claim. That is not to say, of course, that – having given the consideration to which I refer in §23 above – a defendant may not decide to defend a judicial review claim which has merit or even which it expects to lose. The present case had the particular features of a defendant persisting in a defence of a decision which it appreciated was not properly arguable and which, in consequence, it had decided to withdraw.

25. Third, it was wrong for the Council to expect the Claimant to withdraw her claim and threaten her with costs consequences if she did not do so, without giving any indication that it accepted that the appeal decision was erroneous and on what basis.  The offer made to the Claimant, which made mention of neither of these matters, appears to have been calculated to preserve maximum room for manoeuvre for the Council’s decision-maker when re-making the appeal decision. That was, no doubt, to the tactical benefit of the Council but the consequence was that the Claimant could have had no confidence that she would not find herself back at square one, and with similar complaints, in a few months’ time once the appeal decision had been re-taken. This tactic was unfair to the Claimant.

26. The Council’s tactical approach also failed to show the necessary degree of cooperation with the Court, because (a) it reduced the prospects of a consensual resolution of the claim, thereby avoiding further use of Court resources, (b) it increased the prospects of further litigation on the same issue in the future in the event that the Claimant accepted the offer and (c) it placed the Court in an invidious position when the Court was invited – in the Council’s Skeleton Argument and at the oral hearing – not to determine the claim on its merits because of the offer to withdraw the decision. The Court could not assess to what extent there remained live issues between the parties without understanding whether the Council accepted that the appeal decision was wrongly made and on what basis. A defendant to a judicial review claim is not, of course, required to disclose its privileged legal advice, but if that advice leads to the making of a settlement offer whereby the decision in question will be withdrawn, the defendant does, in my judgment, have an obligation to offer some explanation of why this is being done. An explanation would have to be provided to the Court in a case where the parties wish to settle proceedings on the basis of certain relief being granted by the Court (Administrative Court Guide (2025), §24.4). It is no more onerous to expect an explanation from a defendant where it is seeking to persuade a claimant to settle a claim without the grant of relief, because the challenged decision is to be withdrawn. Again, this conduct of the Council would have been open to criticism in any case, but it was particularly serious in the present case given the parlous circumstances in which the Claimant and her family were living, which the proceedings sought to correct.

27. Having regard to the unsatisfactory manner in which the Council’s offer of settlement was made, and phrased, there could be no criticism of the Claimant for failing to accept it. Nor should that offer, in and of itself, prevent the Claimant from securing a determination of her claim. Although it has little continuing relevance to the claim, I also make clear that it was not unreasonable for the Claimant to reject the Council’s offer to treat her as homeless and to provide her with temporary accommodation under the homelessness provisions of Part VII of the Act. That offer entailed a recognition by the Council that the Claimant’s flat was so unsuitable that it was not reasonable to expect her to continue to occupy it (s. 175(3) of the Act). If accepted, the Claimant would have had to give up her security of tenure and make her and her family dependent upon an offer of temporary accommodation which may or may not have been within the Council’s area. This was one route out of the unsuitable flat but a route which could have had highly detrimental consequences for the Claimant and her family. It was not suggested by the Council that treating the Claimant as homeless under Part VII of the Act would be a legal defence to the claim that she had been wrongly treated in the exercise of its powers under Part VI of the Act. It is well-established that the two statutory regimes impose distinct obligations upon a housing authority albeit that an individual’s status under one regime may have implications for their treatment under the other (see, for example, Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506).

28. I turn now to consider the effect on the proceedings of the withdrawal of the appeal decision. Should the Court determine the merits of the challenge to the appeal decision?

29. As I have explained, it became clear at the hearing that the Council did not seek to defend the legality of the appeal decision. Its defence to the claim rested solely on the proposition that the Court ought not to determine the claim because the appeal decision had been withdrawn and the Court should not do anything which might affect the conduct of the fresh consideration which was going to be given to the Claimant’s appeal.

30. Understandably, neither party wished to argue that the Council had no power to withdraw the appeal decision and re-take it, on the basis that it was functus officio (see, for example, R (Sambotin) v Brent London Borough Council [2018] EWCA Civ 1826; [2019] PTSR 371). I proceed on the basis that the Council does have such a power, that being implicit in or at least consistent with the power in s. 166A of the Act to review a decision as to priority under an allocation scheme, and with the nature of decisions as to priority under an allocation scheme which will inevitably require revisiting from time to time, not least because circumstances of applicants will change.

31. If a decision which is challenged in a judicial review claim is withdrawn, that may well render the claim academic and the issue may arise as to whether the Court should nevertheless determine the claim because there is a good reason in the public interest for doing so (in accordance with the principles laid down by the House of Lords in R (Salem) v Secretary of State for the Home Department [1999] 1 AC 450).

32. In this case, the appeal decision had not in fact been withdrawn by the time of the hearing, but it has since been withdrawn. However, I do not accept that the claim has, as a result, become academic. i) There remains a dispute between the Claimant and the Council as to whether her situation merits being placed in Band A. The Council has not decided to withdraw or change its initial decision that her situation merited Band B only, so the ultimate objective of the proceedings, to secure Band A status, has not been achieved. ii) The Council has accepted that there were two particular flaws in the appeal decision, but the Claimant’s challenge to the appeal decision goes much further and includes matters which, on the Council’s current position, it would be open to it to decide against the Claimant when re-making the appeal decision. iii) Put another way, many of the issues which are raised by the present claim with regard to the reasoning in the appeal decision are likely to be relevant to the re-determination of the appeal. A ruling of the Court would be directed at the appeal decision, and at the circumstances of the Claimant and her family as they appeared to the decision-maker in April 2025. It will not be determinative of the question whether the Claimant should be placed in Band A for the future, but the Court’s reasoning on at least some of the grounds of challenge would be likely to be relevant to the approach to be adopted by the Council to the re-determination of the appeal. iv) The case in favour of the Court making a ruling on the challenge to the appeal decision is strengthened by the delay which has already occurred in the present case (some of which, I should acknowledge, was down to the Court). Over 18 months have already passed since the decision appealed against, during which time the Claimant and her family have been living in (at the least) unsuitable accommodation. It would be deeply unsatisfactory if her appeal were to be rejected again on the basis of reasoning which has been challenged in these proceedings, but on which no ruling has been made, thereby requiring a further claim for judicial review and further delay before that reasoning can be assessed by the Court. Not making a ruling on the substantive merits of the Claim would seem particularly wasteful of public resources when the Claim has been litigated all the way to an oral hearing, using public funding on both sides, that hearing having been held at a time when the appeal decision had not been withdrawn and remained live.

33. I therefore proceed to consider the merits of the appeal decision. The merits of the appeal decision

34. There were, in my judgment, a number of legal flaws in the appeal decision. First, the documents considered by the decision-maker were listed at the start of the decision (see §10 above) and did not include the various letters from Hackney Ark, LLY’s GP and the older children’s primary school or the report of the Peabody surveyor to which I have referred in §§7-8 above and which were provided to the Council with or shortly after the appeal. The letters were mentioned in passing in the Claimant’s grounds of appeal which are recorded in the appeal decision but there is no indication that Ms Parkinson had the letters before her or read them before taking her decision. There is reference in the appeal decision to Hackney Ark having installed restrictors on the Claimant’s windows, but that information came from the Council’s Medical Assessment and not from any of the letters mentioned in §§7-8 above. The appeal decision stated, in the section entitled “Appeal decision outcome”, “I have considered all the information provided” but that strikes me as boilerplate language rather than as evidence that the letters I have referred to were considered by Ms Parkinson, not least as it is inconsistent with the case-specific list of documents considered which appears at the start of the appeal decision and because the words immediately following these (“I have decided to uphold the appeal”) were incorrect and appear to have been copied over from another decision in which a different outcome had been reached.

35. As I have already noted, the Council did not adduce any evidence in support of its defence so there is no further explanation from Ms Parkinson or anyone else which would suggest that the important letters had been read and taken into account by her, contrary to the list of documents set out at the beginning of the appeal decision. It is also the case that certain of the findings made by Ms Parkinson – in particular that “[t]here is no indication these [health] conditions are worsened by the property or living conditions” – are so inconsistent with what is stated in the letters that it would be very surprising if she had read and taken into account the letters before drafting the appeal decision.

36. On that basis, it is a legitimate inference (and I do infer) that there was a failure to take into account considerations which were highly relevant to the Band A test in the Allocations Policy which Ms Parkinson was required to apply and which were set out in the letters referred to in §§7-8 above, including as to (a) damp and mould in the flat causing respiratory illness in all of the members of the family, (b) the lack of room in the flat for a table and chair aggravating the risk of LLY choking on his food, (c) the conditions in the flat heightening LLY’s dysregulation and hampering measures to support his development and (d) the detrimental impact upon LLY and his sister of lack of sleep due to overcrowding, causing them to struggle to concentrate at school and having a significant detrimental impact upon their physical and cognitive development.

37. Second, the Council has conceded, and I accept, that Ms Parkinson had applied the wrong legal test when asking herself whether the Claimant or members of her household were “at high risk to life and limb” (§15b above). The test prescribed by the Allocations Policy is whether “a move is imperative to alleviate the immediate risk to the applicant’s well being or the well being of a member of their household” (there having been no issue in this case as to the second limb of the test, that there is no alternative but to rehouse the household in housing in Hackney, if the first limb is satisfied). A risk to well-being is broader than a risk to life and limb; and an “immediate risk” is in some respects a lower hurdle than a “high risk” (in that a risk may be an immediate risk even though not a high risk). It follows that a more onerous test was applied to the Claimant than was prescribed by the Allocations Policy.

38. Third, the other three reasons for Ms Parkinson’s decision (see the bullet points under the heading “Appeal decision outcome” in the quotation set out in §11 above) are also manifestly insufficient to support her conclusion. The second bullet point – that no household member is a hospital discharge patient – focuses on one, irrelevant example among several given in the Allocations Policy as to when there will be an emergency within Band A. The third and fourth bullet points merely state the conclusion, that the Band A criteria are not satisfied, rather than any reasons for it.

39. Fourth, the Council also conceded that Ms Parkinson had erred in law in concluding that the ventilation issues in the flat – which the Claimant’s evidence indicated had given rise to damp, mould and respiratory illnesses – were a matter to be taken up with Peabody and not a justification for inclusion in Band A. I agree that on the evidence before Ms Parkinson that was an error: the Peabody surveyor report of February 2025 clearly stated that damp and mould were caused by overcrowding and were not repair issues. It is Ms George’s view, stated in her witness statement, that this was an error of interpretation of the surveyor’s report. However, the report was perfectly clear on this point and it seems to me more likely that Ms Parkinson simply did not read it or, if she had read it, did not take it into account, and so did not take into account a highly material consideration (as would be suggested by the list of documents she said she had considered, which did not include the surveyor’s report).

40. Whatever the correct legal characterisation of this legal error, it was a significant one. The letters referred to in §§7-8 above provided cogent support for the proposition that the Claimant’s flat was causing immediate risk to the well-being of LLY and the rest of the family, in large part because of damp and mould causing multiple respiratory illnesses. If the solution to damp and mould was, as Ms Parkinson appeared to believe, to require Peabody to carry out repairs to the flat, then that could be a rational basis for a finding that there was no immediate risk to well-being or that there was such a risk but it was a risk that could be alleviated other than by the Claimant and her family moving out of the flat. If in fact repairs to the flat would not prevent damp and mould, and so future respiratory illnesses, then it is unclear on what basis the Council could refute that there was an immediate risk to well-being in that respect.

41. Fifth, I accept the Claimant’s submission that the conclusion reached in the appeal decision was irrational. As I have noted, the materials adduced by the Claimant provided cogent support for her being placed in Band A, on account of her flat posing an immediate risk to the well-being of LLY, his elder sister and the other members of the family. The Council was not obliged to accept that all of the evidence adduced by the Claimant was correct or was persuasive in meeting the relevant legal test. But if it was going to reject that evidence then it was incumbent upon the Council to recognise it and address it, on the basis of competing evidence of its own and/or by analysis in the appeal decision.

42. In fact, Ms Parkinson did rely upon evidence produced by the Council itself, namely the Medical Assessment” of 7 December 2023. This was quoted from extensively in the appeal decision and “particular regard” was paid to it. It was a manifestly insufficient basis for rejecting the case on behalf of the Claimant. It had been prepared more than 16 months prior to the appeal decision, whereas the Claimant’s materials were much more recent. It simply did not address the main planks of the Claimant’s case, including those set out in §36 above and it is unclear whether the author was charged with addressing the criteria in the Allocations Policy. His overall conclusions, that the property was not suitable and that LLJ had “significant medical need” was not inconsistent with the Claimant meeting the Band A test.

43. In my judgment, it was not lawful for Ms Parkinson to prefer the dated and limited conclusions in the Medical Assessment over the later evidence submitted by the Claimant which went directly to the relevant criterion in the Allocations Policy, at least without acknowledging and providing cogent reasons for rejecting the later evidence. The principal basis for her doing so appears to have been her finding that the medical conditions which the Claimant had declared in respect of herself and LLY were not caused or worsened by property or living conditions. That finding, for which no explanation was given, was irrational, as a demonstrable flaw in the reasoning which led to her decision (R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, §98). There was in fact clear evidence that the state of the flat was exacerbating LLY’s symptoms and behaviour and Ms Parkinson also recorded and was aware of the point that poor ventilation in the property was making the children sick. Relief

44. I will grant a declaration to the effect that the appeal decision was unlawful. It is not necessary to quash the appeal decision because it has been withdrawn. It is not appropriate to grant a mandatory order that the Council place the Claimant in Band A. That is a matter which will need to be reconsidered by the Council, in light of the current circumstances of the Claimant and her family and the findings in this judgment.