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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Ubiribo v Notting Hill Genesis [2025] EWHC 132 (KB) (24 January 2025) URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/132.html Cite as: [2025] EWHC 132 (KB)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
URGENT APPLICATIONS COURT
COURT 37

		24th January 2025

- - - - - - - - - - - - - - - - - - - - - FORDHAM J Note: This Judgment was circulated to the parties on 24.1.25 and released to the National Archives on 27.1.25.

FORDHAM J:

Introduction

1. There was a hearing in this case in the Urgent Applications Court (Court 37) on Thursday 23.1.25. At the end of the hearing I announced my decision, for reasons to follow in writing, as they now do. I said I would be making directions in the Claimant's proposed claim for judicial review. I also said I would be declining at this stage to make any order by way of interim relief.

Background and Context

2. The Claimant lives with her two sons (aged 10 and 3) at 21b Westville Road, which she has occupied as tenant of the Defendant (NHG) since April 2009. Issues regarding damp and mould, involving surveyors and works, were being raised by August 2014. There are issues relating to disrepair, including a legal dispute in which solicitors wrote an March 2024 letter before claim and obtained a May 2024 surveyor's report, arising from which it is agreed that an "open offer" including compensation was made by NHG in July 2024. The Claimant has been designated by NHG as being within "Band B" under NHG's allocation and transfer arrangements. That Banding affects her position regarding direct offers. She has asked to be put into "Band A". A series of advices from medical advisers known as "Now Medical" have been relied on by NHG when making decisions about retained Band B. The Claimant had copies of the Now Medical advice documents dated 10.9.24 and 30.9.24. After September 2024 she relied on medical evidence from different sources, including a letter from a GP Dr Anika Patel (of The Hammersmith Surgery). That is described as the fourth in a sequence of letters from Dr Patel. It is dated 28.10.24. A number of things happened on 5.12.24. There was the latest request from the Claimant. There was a judicial review letter before claim. There were events relating to a "damp wash" to be undertaken by a contractor. There appear to be some aspects of that day currently in dispute. There was a follow up letter from the Claimant on 13.12.24 and a judicial review letter of response on 18.12.24.
3. The Claimant had approached the High Court in December 2024, seeking to make an application for an urgent injunction. As she was told by email from the Court (11.12.24), a Judge had considered her without-notice application and had directed listing for hearing "on notice", which "given her and her family's circumstances", he directed should be "as soon as possible". I record that both the Claimant and NHG both subsequently communicated with the Court about the case, without cc'ing the other. Unilateral communications are addressed in the Admin Court JR Guide 2024 at §13.11.8 and I would expect future communications to be cc'd to the other side, to avoid disputes about what is "purely routine" and "uncontentious". The Claimant's pre-action letter (5.12.24) was in contemplation of judicial review. Interim relief can sometimes appropriately be considered ahead of issuing a claim: see the JR Guide §16.2. The Claimant was not told that she should issue a claim. It was no doubt not foreseen by the Claimant or the Judge that the listing would, for various reasons, not be until some 6 weeks after 11.12.24. I am confident that, had she realised that filing a claim would be a good idea after 11.12.24, and when she received NHG's letter of response (18.12.24), the Claimant would have taken that step.
4. On 3.1.25 at 11:24, the Claimant sent an email to two named individuals at NHG. It was headed "URGENT NOTICE – 216 DALLING ROAD – APPLICATION FOR INTERIM INJUNCTION". It attached 6 key documents and there was an email chain embedding a further "30 attachments". It was forwarded to NHG's lawyers and Counsel. I am told that, unfortunately, the mode of forwarding was "fresh-start" and the 30 attachments got missed in the forwarding involving the lawyers at NHG's end. At the Claimant's end, it is clear that there were further documents filed with the Court which were regrettably not copied to NHG or its lawyers. I do not need to get into the details of whether and what more could have been done on both sides. I am able to focus on the following, which is quite sufficient for this stage. First, there was the 3.1.25 email with its attachments, including the chain. Second, NGH and its lawyers were aware that a hearing date was being sought, because they had communications with the Court. The hearing was originally envisaged for 21.1.24 then fixed for 23.1.24. Thirdly, NGH and its lawyers received the N244 issued with the Court stamp (15.1.24), provided by the Court on 21.1.24. Fourthly, NHG and its lawyers had the Claimant's detailed written submissions dated 30.12.24, headed "urgent application for interim prohibitory injunction". That was a full and clear document. It gave the Court and NHG clarity about what was being sought and on what basis. I would have been able to focus on the contents of that document, so far as the interim relief regarding Dalling Road was concerned, and any possible unfairness to NHG relating to later documents was eliminated.

Dalling Road

5. The interim remedy which the Claimant identified in her grounds (30.12.24) and email notification (3.1.25) was to restrain the allocation of premises at 216 Dalling Road to any other tenant. The Claimant also says that she specifically emailed NHG's lawyers (7.1.25) requesting that no action be taken in relation to Dalling Road until her urgent application to this Court had been considered. NHG's skeleton argument (22.1.25) communicated to the Court and to the Claimant that Dalling Road had been let to another tenant on 13.1.25. In light of that news, received the day before the interim relief hearing, the Claimant recognised that no interim remedy regarding Dalling Road was now achievable, and she did not advance it at the hearing. She asked for the Court's assistance as to where she could go from here.
6. I record that Ms Osler submits that no order relating to Dalling Road could have been appropriate in any event. She emphasised that Dalling Road is a 3-bed property when the Claimant has been assessed as needing a 2-bed property. She says that, even if considering interim relief, it would be inappropriate for the Court to get involved in specific allocations. None of this arises for decision, because Dalling Road has gone, the application for interim relief relating to it is not pursued. The Claimant asked me to substitute an alternative order for interim relief to require an alternative urgently to be secured. That could be an order to provide alternative accommodation, or temporary accommodation, or conceivably to treat the Claimant as "Band A". The Claimant submitted that, if no alternative interim relief were appropriate, there should be speedy authoritative resolution of the judicial review claim. That could be an expedited rolled-up hearing (JR Guide §9.2.1.5).

Dr Patel

7. I have found it helpful to focus on Dr Patel's fourth letter of 28.10.24. It is a good reference point – though by no means the only one – for understanding the Claimant's position. It brings into focus why the paper judge on 11.12.24 – 6 weeks ago – was speaking of directing a listing "as soon as possible", "given [the Claimant] and her family's circumstances". What Dr Patel describes in the letter are "dangerous living conditions that threaten the family's well-being", with an "urgency" which "cannot be overstated". Reference is made to "comprehensive documentation, which clearly illustrates the family's health needs are urgent". Dr Patel concludes by reference to "hazardous conditions" and "medical necessity". These are Dr Patel's words. To understand what is being said, it is important to say something about the position of the Claimant's eldest son.

The Eldest Son

8. The Claimant's eldest son has just turned 10. Dr Patel refers, alongside a January 2024 blood test, to a "recent allergy test on 12.10.24". She says this "conclusively demonstrates the risks associated with continued exposure to mould". She explains that the eldest son has a "confirmed allergy to Cladosporium mould". Dr Patel also describes that condition as being "a direct result of the damp environment". Prior to that allergy test, the Claimant had already told NHG (17.9.24) that she and her children were temporarily staying away from Westville Road. She says that on 5.12.24 she moved the eldest son to her parents, rather than risk the damp conditions and mould. There was a reference to even sleeping on a sofa somewhere being better than Westville Road. The Claimant's grounds of 30.12.24 cited as a judicial precedent supporting interim relief "Birmingham City Council v Stephenson (2022)", as a case where an "injunction [was] granted to protect a child suffering from asthma in mould-infested housing". Nobody filed any authorities for this hearing. There was a disagreement as to whether Stephenson was a disrepair case, or a possession case, or something else. Ms Osler denies that it is relevant. From a brief post-hearing search, R (Bell) v Lambeth LBC [2022] EWHC 2008 (Admin) [2022] HLR 45 is a case which appears to involve asthma (albeit on the part of a parent), mould and an injunction.

Directions

9. I said I would give directions regarding the judicial review claim which the Claimant had by her pre-action letter (5.12.24) indicated an intention to commence. I am ordering:

The following directions apply to the Claimant's proposed claim for judicial review: (1) The Claimant shall file with the Court and, on the same day, serve on the Defendant's solicitors by email ("the Claimant's Email"): (a) Form N461; (b) a document headed "grounds for judicial review" which identifies (i) what actions, inactions or decisions of the Defendant are challenged (ii) on what legal grounds (iii) with what interim and final remedies are being sought and (iv) what directions are sought from the Judge who considers the papers; (c) a witness statement including a chronology of all events said to be relevant, referenced to documents in the indexed and paginated bundle of accompanying materials; and (d) an indexed and paginated bundle of accompanying materials, including factual and legal materials (including anything relied on which has previously been filed with the Court by the Claimant). (2) The Defendant shall, within 14 days of the Claimant's Email Notification, file with the Court and, on the same day, serve on the Claimant by email ("the Defendant's Email"): (a) an Acknowledgment of Service; (b) a document headed "response to claim for judicial review" which includes (i) the Defendant's response to the claim (ii) the Defendant's response to any remedies including interim remedies sought (iii) the Defendant's response to the Claimant's chronology of all events (iv) any directions sought (including as a secondary position) from the Judge who considers the papers and (v) Counsel's confirmation that the Defendant has complied with its duty of candid disclosure including in relation to the concerns identified in the Judgment; (c) an indexed paginated bundle including any witness statement evidence, and any factual and legal materials, relied on (including anything relied on which has previously been filed with the Court by the Defendant). (3) The Claimant shall, within 7 days of the Defendant's Email file with the Court and, on the same day, serve on the Defendant by email any reply submissions document, not to exceed 10 pages in length. (4) The papers will then be considered by a Judge.

10. The parties should therefore be prepared for all eventualities, including that the Court – if it considers the claim viable – may wish to direct a rolled-up hearing and the grounds of claim and resistance should be prepared with a view to their use at a hearing fairly shortly after paper consideration.

Concerns

11. I will record here three specific concerns I have on the basis of the papers and the information before the Court. First, there was advice of Now Medical dated 13.12.24. The Claimant says NHG had never disclosed that to her, until I asked about the position at the hearing. The Claimant says she was told by the housing officer (24.12.24) that they were not authorised to share documents with her. She says she only received it during the hearing, because I asked about it and asked to see it. Secondly, there was a decision dated 9 January 2025. NHG's skeleton argument (22.1.25) said: "On 9 January 2025, the claimant was notified that her banding would not be increased". I asked to see the email. I was told that this decision was never emailed to the Claimant. I was told a decision was taken by someone to send it by post, the following day (10.1.25). The Claimant says the letter was never received. She says she only received it during the hearing, because I asked about it and asked to see it. Thirdly, NHG proceeded to allocate Dalling Road (13.1.25), and communicated this for the first time to the Claimant and the Court in a skeleton argument the day before the hearing (22.1.25). That was notwithstanding the notification (3.1.25) of the application for an interim remedy relating to Dalling Road. The email traffic includes an email to the Court (10.1.25 at 12:10) in which NHG confirmed receipt of "correspondence from the court as to an application for an interim injunction". Those are the three concerns. Ms Osler was not in a position to make any submission about the degree of transparency. I make no finding and no observation as to what happened. As to what is to happen next, I would expect the Claimant and Court to be given a clear explanation as to whether decisions were made: not to provide to the Claimant the Now Medical document (13.12.24); to adopt a delayed mode of communicating the decision (9.1.25); to proceed with an allocation (13.1.25) without any communication about that intention or notification of that action. My directions refer to the judicial review duty of candid disclosure, including – at (2)(v) – what I have elsewhere called a "permission stage assurance": R (PSA) v PRRB [2023] EWHC 1838 (Admin) [2024] 1 WLR 166 §19.

Applicable Law

12. Ms Osler's skeleton argument emphasised the position of NHG as a "private registered provider of social housing" (PRP). It contemplated the possible application of the Human Rights Act 1998. I also submitted that the judicial review court would not interfere with "micro-decisions as to the allocation of accommodation" – even in a Housing Act 1996 local authority context – citing Ahmad v Newham LBC [2009] UKHL 14 [2009] PTSR 632. It was argued that there was "no power" for the judicial review court to grant the interim relief sought. Ms Osler told me that non-amenability to judicial review was not a line taken in the letter of response (18.12.24), where points made – and maintained – focus on suggested alternative remedies. The skeleton argument appeared at first sight to be advocating the exclusion of any public law duties. That had me reaching for Arden and Bates, Homelessness and Allocations (LAG, 12^th ed. 2021) at §§11.172 to 11.173. There, the authors discuss R (Weaver) v London and Quadrant Housing Trust [2008] EWHC 1377 (Admin) and [2009] EWCA Civ 587, and R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin). Within their commentary is this:

PRPs may qualify as public authorities within the Human Rights Act 1998, in respect of some aspects of their management of their social housing stock … and … in such circumstances … are also susceptible to the principles of domestic public law … [A]llocation … seems also to qualify …

The Claimant, creditably, came to the hearing armed with Weaver. I detected nuance in NHG's position. As well as public law principles, reference has been made by the Claimant to the 1998 Act and the Equality Act 2010. There is disagreement, beyond that, as to what statutory schemes are applicable or relevant. Ms Osler's case includes that the decision of 9.1.25 would not be susceptible to judicial review; and that that there are alternative remedies. Whether there is a knock-out blow for judicial review along those lines will be for subsequent consideration. These are not points on which I would have found against the Claimant at this pre-claim interim relief stage.

Alternative Pre-Claim Interim Relief

13. As I have explained, I am not satisfied that it is appropriate – applying the relevant legal principles – to make an order for an interim mandatory injunction. Any order that the Claimant be accommodated elsewhere would in my judgment, in practice, serve to dispose of the long-standing substantive issue of whether the Claimant and her children can lawfully be left at Westville Road. Nor am I satisfied that it would be appropriate to mandate a "Band A" designation. This case is at the pre-claim stage. That is not a jurisdictional bar, but it is a relevant feature. I want the Court to have a substantive judicial review claim, in light of what has belatedly been disclosed to the Claimant through this hearing, with a crystallised position on both sides. The Court needs to look at all options, including whether to direct substantive resolution by way of a rolled-up hearing. That means there will need to be a further period of weeks. But that is so that the Court has what it needs, including the Claimant's response to the materials now available to her. Looking at the position now, I am not able to be satisfied that the criteria for an interim mandatory remedy requiring rehousing action are met. I decline to fashion and impose a new alternative interim order.

Order

14. My Order will record as a recital that the interim remedy relating to Dalling Road was not pursued in light of the revelation yesterday that it was let on 13.1.25. I will make the directions I have identified, and refuse to make an alternative form of pre-claim interim relief. I will say "costs reserved to the judicial review proceedings" so that the Court could if appropriate revisit these, whatever way that cuts, at a time when there is a clearer picture of what happened in the run up to this hearing.