Morris v NIHE: Court of Appeal reaffirms the primacy of statutory review and resource‑sensitive deference in challenges to temporary accommodation, and expects explicit leave decisions in rolled‑up hearings

Case: Morris, Re Application for Judicial Review [2025] NICA 51 (8 October 2025)

Court: Court of Appeal in Northern Ireland (McCloskey LJ, Colton J, McAlinden J)

Parties: Appellant Tracey Morris (litigant in person); Respondent Northern Ireland Housing Executive (NIHE), represented by Aidan Sands KC

Introduction

This appeal arose from the dismissal in the High Court (King’s Bench Division, Judicial Review) of Ms Tracey Morris’s claim seeking a mandatory order compelling the Northern Ireland Housing Executive (NIHE) to accommodate her family at a specific private rental property—a three‑bedroom bungalow in Carryduff—pending permanent re‑housing in a “non‑sectarian and safe environment.” The High Court (temporary judge Simpson) dismissed all grounds on 19 February 2025. Ms Morris appealed.

The case sits squarely at the intersection of public law controls over housing allocation decisions, the limits of judicial review in resolving fact‑heavy disputes about “suitability,” and the constraints of public resource allocation policies—particularly maximum rent caps for single‑let temporary accommodation.

Key issues included:

Whether the court could and should compel NIHE to procure or fund a specific property (the Carryduff bungalow) at a rent “significantly above” NIHE’s standardised maximum rate.
Whether NIHE’s offer of alternative temporary accommodation—a three‑bedroom ground‑floor flat in Belfast—could be challenged via judicial review rather than the statutory review mechanism.
Whether the High Court’s use of a “rolled‑up” hearing was procedurally complete in the absence of an explicit determination on leave.

The appellant’s family needs—including her own health and mobility challenges and the special educational needs of a teenage son with ADHD—were central to her insistence on ground‑floor, three‑bedroom accommodation. NIHE accepted the need for suitable accommodation but refused to fund the Carryduff bungalow due to rent levels and resource constraints, offering instead a three‑bedroom ground‑floor flat in the appellant’s then chosen area, which she declined.

Summary of the Judgment

The Court of Appeal dismissed the appeal as “hopeless,” endorsing the High Court’s reasoning and conclusions. The court held that:

There was no arguable case with a reasonable prospect of success; the leave threshold was not met “by some distance” (para [14]).
Challenges to the “suitability” of specific temporary accommodation, involving contested facts, were ill‑suited to judicial review and should be pursued through the statutory review mechanism, which the appellant failed to exhaust (para [10]).
NIHE’s refusal to fund rent far above its standardised rate was rational and policy‑compliant, particularly given exceptional resource pressures (paras [5], [8]–[9]).
“Area of choice” is relevant to permanent allocations and does not govern the sourcing of temporary accommodation (para [11]).
As a practice point, in a rolled‑up hearing a judge should state whether leave is granted or refused; however, the omission here was of “little moment” given the absence of arguable grounds (para [14]).

Analysis

Precedents and Related Decisions Cited

Simpson J’s High Court judgment ([2025] NIKB 10): The Court of Appeal affirmed the High Court’s careful categorisation and dismissal of the multifarious grounds (para [10]), including the finding that suitability disputes and factual controversies are not apt for determination in judicial review, particularly where a statutory review exists.
Scoffield J’s earlier decision ([2024] NIKB 96): Referenced to contextualise the appellant’s ongoing disputes with NIHE concerning a different property (McClure Street) and her consistent insistence on a specific configuration (ground‑floor, three‑bedroom). While not treated as binding authority on any legal point in this appeal, it reinforced that this litigation is one chapter in a longer, fact‑sensitive housing dispute (paras [2], [6], [11]).

Notably, the Court of Appeal did not need to draw on wider appellate authority. It resolved the appeal by applying settled judicial review principles to the facts and to the statutory scheme governing NIHE’s temporary accommodation decisions.

Legal Reasoning

The court’s reasoning coheres around four pillars:

Primacy of the statutory alternative remedy for suitability disputes. The appellant expanded her claim to challenge NIHE’s assessment that a Belfast ground‑floor three‑bedroom flat (with en‑suite) was suitable for her family. The High Court—and the Court of Appeal—held that such disputes are to be channelled through the statutory review process identified at paras [57]–[59] below, which the appellant did not pursue (para [10]). The court saw no inadequacy in that remedy.

Consequence: Judicial review will not normally lie where Parliament provides an adequate, specialist, fact‑sensitive review mechanism for suitability determinations.
Deference to resource‑sensitive policy constraints in temporary accommodation. The court accepted NIHE’s evidence of an “extremely challenging funding environment,” “unprecedented demand,” and severe scarcity of ground‑floor properties—less than 1% of approximately 1,300 single‑let dwellings were ground‑floor, with only four ground‑floor flats available (para [8]). Given almost 30,000 households in the highest priority “FDA” category and a six‑fold increase in private rented sector costs, NIHE emphasised a duty to secure value for money in every single‑let rental (para [8]).

On the Carryduff bungalow, the landlord sought rent approximately 50% above NIHE’s standardised maximum rate, which NIHE treats as “the maximum rate outside of exceptional circumstances” (para [9]). NIHE’s affidavit identified rare exceptions—families with permanent wheelchair users requiring bespoke solutions—whose costs were “considerably lower” than the Carryduff property (para [9]). On these facts, refusing to fund that property was plainly rational.

Consequence: Courts will not compel a housing authority to secure or fund a specific property at substantially above the authority’s maximum rate absent truly exceptional, evidenced circumstances.
Judicial review is not a forum for resolving contested factual micro‑disputes. The High Court considered the appellant’s expanded grounds to be saturated with factual disputes unsuitable for judicial review (para [10]). The appellate court agreed. Where the dispute turns on evaluations of medical/social needs and the practical suitability of a particular property, the statutory reviewer—not the judicial review court—is the primary decision‑maker.
The scope of “area of choice”. The court accepted NIHE’s position that the applicant’s “area of choice” applies only to permanent allocations and does not bind the authority when sourcing temporary accommodation (para [11]). This was decisive in the face of the appellant’s rejection of a suitable ground‑floor, three‑bedroom flat in University Street, Belfast—within her then area of choice—which she later removed from her list after the offer (para [11]).

Evidence and the factual matrix

Appellant’s circumstances: Living since May 2020 in a four‑bedroom private rented house in south Belfast, rent funded by housing benefit with NIHE paying the shortfall; on the NIHE waiting list for permanent housing; family needs included mobility issues and the ADHD‑related needs of a teenage son (paras [3]–[4], [6]).
The Carryduff bungalow: A three‑bedroom bungalow identified by the appellant; the landlord’s rent demand was “significantly above” NIHE’s standardised rate and beyond the limited discretion available (paras [5], [8]–[9]).
Alternative offered: NIHE offered a three‑bedroom, all‑on‑one‑level ground‑floor flat in University Street, Belfast (Lower Ormeau), roughly 300 metres from a previously litigated property; one bedroom had an en‑suite (paras [6], [11]). The appellant refused it and later removed that area from her preferences (para [11]).
Scarcity and demand: Only about four ground‑floor flats available out of c. 1,300 single‑lets; “unprecedented demand” and “extremely challenging funding environment”; almost 30,000 FDA households; costs for private rentals up by a factor of nearly six (para [8]).
Exceptional cases and comparative costs: Two cited exceptions involved permanent wheelchair users with “bespoke” needs, yet even those cases cost “considerably lower” than the Carryduff rent (para [9]).

Procedural observations and practice points

Leave in rolled‑up hearings: The Court of Appeal observed that the High Court should have stated explicitly whether leave was granted or refused when using the rolled‑up procedure. It criticised the omission, expected counsel to raise it, but found it immaterial since the leave threshold was plainly not met (para [14]).
Litigants in person: The court afforded procedural latitude to the appellant—accepting new materials and a “skeleton argument” in the form of an unsworn witness statement—while maintaining neutrality and applying the standard leave threshold (para [12]).
Hearing management: Time allocations were adjusted to 20 minutes per party based on the filings; the court did not need to hear from NIHE’s counsel (para [13]), underscoring the appeal’s lack of merit.

Impact

On housing law and public administration

Reaffirmed boundary lines: The decision fortifies established boundaries: suitability disputes go to the statutory review; judicial review scrutinises legality and rationality, not granular factual determinations.
Resource‑sensitive deference: In conditions of extreme scarcity and budgetary stress, courts will be slow to override rent caps or mandate procurement of premium properties absent exceptional, evidenced needs. Authorities should continue to document their value‑for‑money assessments and the reasons for refusing over‑cap rent demands.
Temporary vs permanent accommodation: “Area of choice” preferences are for permanent allocation, not a constraint on temporary sourcing. This clarification will guide both applicants and NIHE in managing expectations and offers.

On litigation strategy and judicial review practice

Exhaustion of remedies is critical: Applicants challenging the suitability of temporary accommodation must use the statutory review pathway unless there is a demonstrable reason why it is inadequate or ineffective.
Evidence thresholds: Claimants seeking funding above standardised rates will need compelling, exceptional evidence (e.g., permanent wheelchair use with bespoke adaptations) and still face comparative cost scrutiny.
Rolled‑up hearing discipline: Judges should expressly determine and record the leave outcome. Respondents should assist the court by drawing attention to the need for a leave order.

Complex Concepts Simplified

Judicial Review (JR): A legal process to check the lawfulness of public body decisions, focusing on legality, procedural fairness, and rationality—not re‑deciding the merits.
Leave to apply for JR: A permission stage. The applicant must show an arguable case with a reasonable prospect of success. Here, the Court of Appeal held the threshold was not met “by some distance” (para [14]).
Rolled‑up hearing: A combined hearing where leave and the substantive JR are heard together. Good practice requires the court to say whether leave is granted or refused.
Alternative remedy (statutory review): A specific process provided by statute to challenge decisions (such as accommodation “suitability”). Courts generally require applicants to use such remedies before resorting to JR.
Standardised rate/maximum rate: NIHE’s policy cap on rent for single‑let temporary accommodation. Exceeding it is envisaged only in exceptional circumstances.
FDA status: NIHE’s highest priority band for housing need. The judgment notes the pressure: almost 30,000 households had FDA status (para [8]).
Area of choice: Applicant’s preferred areas for permanent housing allocation. The court confirmed it does not govern the sourcing of temporary accommodation (para [11]).

Conclusion

Morris v NIHE is an important appellate reaffirmation—rather than a departure—of core public law principles in the housing context. Three messages dominate:

Use the statutory review for suitability disputes. Judicial review is not the forum for fact‑rich determinations about the suitability of specific accommodation, especially where Parliament has provided an expert review mechanism.
Courts defer to resource‑constrained policy choices absent clear unlawfulness. Refusals to fund rents above a standardised maximum—particularly in conditions of acute scarcity and budget stress—are lawful where properly reasoned and evidenced.
Procedural clarity in rolled‑up hearings matters. Judges should state the leave outcome; respondents should assist in ensuring this formality is not overlooked.

For applicants, the case underscores that securing a particular property—especially at premium rents—will rarely be achievable through judicial review. For public authorities, it highlights the importance of transparent policy application, cogent evidence on scarcity and costs, and accessible statutory review processes. The net effect is a jurisprudence that channels factual suitability disputes into specialist review, reserves judicial review for public law errors, and acknowledges the realities of finite housing resources.