Judicial review of housing decisions: a guide for tenants

Judicial review is a legal process that allows a court to examine whether a public body made a decision lawfully. For tenants, it can be used to challenge decisions made by councils, housing associations, and other public authorities where those decisions were unlawful, unfair, or unreasonable. Below, we cover when judicial review might be relevant and what it involves.

What is judicial review?

Judicial review is not an appeal on the merits of a decision. It is a challenge to the way a decision was made. A court reviewing a housing decision will ask:

• Did the public body follow the correct legal process?
• Did it consider the right factors and ignore irrelevant ones?
• Was the decision irrational, meaning no reasonable authority could have reached it?
• Were the person's legal rights properly considered, including human rights?

If the court agrees the decision was unlawful, it can quash the decision, require the authority to make the decision again, or in some cases order a specific outcome.

What housing decisions can be challenged?

Judicial review has been used to challenge a range of housing decisions, including:

• Homelessness decisions, where a council has refused to accept a homelessness application, found that someone is intentionally homeless, or concluded they are not in priority need
• Housing allocation decisions, where a council has refused to place someone on the housing register, or has placed them in a lower band than appears correct
• Refusal to transfer, where a social tenant has been refused a management transfer despite safety or health reasons
• Failure to act, where a council has failed to carry out its statutory duties on housing conditions or homelessness

When is judicial review not the right route?

Many housing decisions have their own dedicated appeal processes, and these must be exhausted before judicial review is available.

• A council homelessness decision carries a right of statutory review (section 202 Housing Act 1996), followed by a statutory appeal to the county court (section 204). Judicial review is not the first step.
• Housing benefit and universal credit housing cost decisions have their own appeal routes through HM Courts and Tribunals.
• Disputes with private landlords over disrepair or tenancy terms are civil claims in the county court, not judicial review.

Judicial review is generally a route of last resort where no alternative adequate remedy exists.

What are the time limits?

Judicial review claims must normally be brought promptly and in any event within three months of the decision being challenged. In practice, many courts expect the claim to be filed as quickly as possible.

If you think a public body has made a decision you want to challenge, you should seek legal advice without delay.

How to apply for judicial review

Before making a formal application, the claimant must normally send a pre-action protocol letter to the public body. This sets out the grounds for the challenge and gives the authority an opportunity to reconsider. Many cases are resolved at this stage.

If the authority does not change its decision, you make an application to the Administrative Court for permission to proceed. A judge considers the papers and decides whether the case has sufficient merit to go to a full hearing.

Judicial review is complex and almost always requires legal representation. Legal aid may be available for housing judicial review cases.

Legal aid for judicial review

Legal aid is available for judicial review of housing decisions in many circumstances. Your means and the merits of the case are assessed. A specialist housing law solicitor or law centre can advise you on eligibility.

When should I contact Support for Tenants?

If your problem involves a private landlord's failure to carry out repairs rather than a public body's decision, a housing disrepair claim may be the right route. We can advise on whether your situation falls within our area of work.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Section 31, Senior Courts Act 1981 (applications for judicial review) (legislation.gov.uk)
• Civil Procedure Rules, Part 54 (judicial review) (justice.gov.uk)

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