No “Condition Precedent”: Defects in Section 189A Assessments Do Not Invalidate Lawful Suitability Reviews under Section 202 in Prevention Duty Cases — Fatolahzadeh v London Borough of Barnet [2025] EWCA Civ 1174

Introduction

This Court of Appeal decision clarifies a recurring and important question under the Housing Act 1996: does a failure (or deficiency) in the authority’s assessment duty under section 189A invalidate a later finding, on review under section 202, that accommodation is suitable under the prevention duty in section 195? The Court’s answer is a clear “no,” provided the section 202 review properly addresses suitability on its merits and is untainted by legal error.

The appellant, Ms Fatolahzadeh, approached the London Borough of Barnet in 2022 when threatened with homelessness. Barnet accepted a prevention duty under section 195(2), gathered information (including medical input), created a Personal Housing Plan (PHP), allocated her to Band 2 for allocations purposes, offered one property it later withdrew as unsuitable, and then in March 2023 offered a ground-floor two-bedroom flat in Edgware with adaptations. The appellant accepted and moved in but requested a section 202 review of suitability. Barnet upheld suitability in a detailed Review decision (4 August 2023). The County Court dismissed her section 204 appeal. On second appeal, she advanced two grounds aimed at the relationship between section 189A assessments, the PHP, and the lawfulness of a suitability determination in a section 202 review.

The key issues before the Court of Appeal were:

Whether non-compliance with section 189A (assessment duty) necessarily invalidates a suitability review under section 202 in a section 195 prevention case (Ground 1).
Whether alleged deficiencies in the PHP, including the absence of a documented review of the PHP, were material given the later review of suitability (Ground 2).

Summary of the Judgment

The Court of Appeal (Baker, Singh and Jonathan Baker LJJ) dismissed the appeal on both grounds. The Court upheld the County Court’s central holding that:

Barnet did carry out an assessment of the appellant’s housing needs in substance, albeit dispersed across documents; and
Even assuming some assessment deficiency (notably the initial reasoning about distance from the support network), the later section 202 Review decision on suitability remedied it and stands as the decision under challenge.

Applying the Soneji consequences framework (as developed in A1 Properties and Layden), Abed v Westminster and Norton v Haringey, the Court held that the statutory review mechanism is designed to correct earlier defects in decision-making; Parliament did not intend section 189A non-compliance to operate as a “condition precedent” that automatically vitiates a later, otherwise lawful, suitability decision on review. Section 189A or PHP defects, if challenged at all, should be pursued by judicial review; absent a successful JR quashing the underlying act, administrative decisions stand as valid. The appellant’s attempt to impeach the unimpeached Review decision by reference to earlier assessment/PHP complaints therefore failed.

Detailed Analysis

1) Precedents Cited and Their Influence

Abed v City of Westminster [2011] EWCA Civ 1406

Context: Challenge to an offer under section 193 (main housing duty) alleging the authority failed to assess suitability before making the offer.
Held: Where the statutory review process is available and undertaken, it “supersedes” complaints about the initial process. The focus is whether the review was properly conducted and legally sound. Earlier procedural defects fall away if the review corrects them.
Influence in this case: The Court analogised directly. Although Abed concerned section 193, its core principle is general: when Parliament has provided a right to a substantive, merits-based administrative review and a further section 204 appeal on a point of law, defects in earlier stage decision-making do not automatically invalidate the later review outcome if the review is lawful and complete. The Court expressly endorsed the County Court’s reliance on Abed (see para [56] of the Judgment and Abed at [26], [28]-[29]).

Norton v LB Haringey [2025] EWCA Civ 746

Context: Applicant argued a lawful suitability decision could not be made without a prior, lawful section 189A assessment.
Held: Rejected. Section 189A is not a condition precedent to a lawful suitability decision. Applying the Soneji line of authority (via A1 Properties and Layden), the Court emphasised Parliament cannot have intended the “paralysis” that would follow if the absence or deficiency of a section 189A assessment invalidated otherwise impeccable suitability decisions (Norton at [47], [49]-[52]).
Influence in this case: The present Court follows Norton closely and extends its logic expressly to the section 195 prevention duty context with the additional “have regard” instruction in section 195(3). Even where that cross-reference exists, the Court holds the review process cures earlier non-compliance; the remedy for section 189A/PHP defects is judicial review, not undermining a lawful section 202 review outcome via section 204 appeal.

A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 and R v Layden [2025] UKSC 12

These Supreme Court cases restated the Soneji approach to the consequences of non-compliance with statutory procedural requirements: the court should ask whether Parliament intended invalidity to follow non-compliance, considering the purpose of the requirement and the structure of the statutory scheme, and evaluate prejudice and injustice if validity is affirmed despite breach (A1 Properties at [58], [61], [68]; Layden at [76]-[77]).
Influence: The Court applied this approach to conclude that treating section 189A as a condition precedent would produce “stark” and unacceptable consequences (Norton at [50]-[52]), effectively paralysing authorities from discharging Part 7 duties, including prevention under section 195. That analysis is replicated here.

Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295 and R (Noble Organisation) v Thanet DC [2005] EWCA Civ 782

Principle: Administrative acts are valid unless and until quashed by a court.
Influence: Because no judicial review was brought to quash Barnet’s assessment/PHP, those acts remained valid. The Court would not treat them as nullities to undermine the later review decision.

UO v Redbridge LBC [2023] HLR 39; XY v Haringey LBC [2019] EWHC 2276 (Admin); R (ZK) v Havering LBC [2022] HLR 47

UO: Authorities must take positive, collaborative steps and make reasonable inquiries to identify needs (quoted with approval by the Judge, adopted by the Court).
XY: The assessment and agreement under section 189A need not be in a single document; in practice, officers read the whole file.
ZK: Whether the assessment/PHP duties were discharged is judged by considering the entirety of the written housing file as a “reasonable and sensible housing officer” would.
Influence: These cases underpinned the factual finding that Barnet did, in substance, conduct an assessment and maintain an ongoing process reflecting the appellant’s needs.

Bennion, Bailey & Norbury on Statutory Interpretation; Natt v Osman [2014] EWCA Civ 1520

Principle: Consequences of non-compliance are a matter of statutory interpretation; look to purpose and context.
Influence: Supported the Soneji/A1 Properties/Layden analysis leading to rejection of “automatic invalidity.”

Ofori-Addo v Haringey LBC [2025] EWCA Civ 277

Principle: Section 202 provides a specific, not general, list of decisions that can be reviewed; there is no right to review the section 189A assessment or PHP.
Influence: Reinforces that complaints about section 189A/PHP must be brought (promptly) by judicial review, not piggy-backed on a section 202 suitability review or a section 204 appeal from that review.

2) The Court’s Legal Reasoning

(a) Factual findings on assessment

The Court endorsed the Judge’s finding that Barnet did assess the appellant’s needs: it conducted a detailed interview; gathered medical information; obtained recommendations from its Medical Team (ground/first floor or lift, level-access shower, son vulnerable if homeless); translated this into Band 2 priority and suitability criteria; and iteratively applied this in offers (including withdrawing an unsuitable first offer).
Although the initial reasoning on the impact of distance from the appellant’s support network was thin, the later Review decision fully addressed it.

(b) The review “supersedes” earlier deficiencies

Applying Abed and Norton, the Review decision is the operative decision under challenge. If the review properly evaluates suitability on current evidence and law, earlier process defects do not invalidate it.
This is not to trivialise section 189A: the duty is mandatory and often pivotal. But non-compliance does not automatically void what follows. The intended remedy for section 189A/PHP errors is judicial review—where the assessment or PHP can be quashed, potentially unravelling dependent decisions. No such JR was brought here.

(c) The Soneji/A1 Properties/Layden “consequences” lens

The Court assessed what consequence of non-compliance best fits the statutory structure: Part 7 contains a built-in corrective pathway—administrative review under section 202 and a section 204 appeal on points of law. Parliament also circumscribed reviewable decisions under section 202, deliberately excluding free-standing section 189A/PHP challenges.
Treating section 189A as a “condition precedent” would create “paralysis” across Part 7 duties (Norton at [50]-[52]): authorities could not lawfully take steps to prevent, relieve, or discharge duties even by offering plainly suitable accommodation if the section 189A paperwork was absent or defective, a result Parliament cannot have intended.

(d) Section 195(3) does not change the analysis

Section 195(3) requires the authority to “have regard to” its section 189A assessment when deciding steps under the prevention duty. The Court accepted this is a mandatory relevant consideration, but stressed two limits:
First, administrative acts are valid unless quashed: absent a successful JR quashing an assessment/PHP, the authority’s (even imperfect) assessment remains in play; and
Second, a later, thorough, and lawful section 202 review of suitability is not invalidated by earlier assessment shortcomings—its function is to cure such defects.

(e) PHP complaints were immaterial to the review outcome

The PHP was adequate read in context; in any case, the challenge before the Court concerned the lawfulness of the suitability Review decision, not the PHP. The statute does not provide a section 202 review of the PHP, and no JR was brought against it.
There is no statutory prescription for how often the PHP must be reviewed. Here, there was no material change of circumstances between the PHP and the offer/review, and the review addressed suitability comprehensively.

(f) The “minor gloss” on Norton

The Court addressed a sentence in Norton ([31]) that could be read as suggesting a suitability decision is “legally flawed” if based on a legally flawed section 189A assessment. Properly understood, this refers to the position where an underlying decision has been quashed, such that dependent decisions may also fall. It does not support the appellant’s “automatic invalidity” thesis where no JR quashing has occurred and a proper review has been conducted.

3) The Judgment’s Impact

For local housing authorities

Reassurance: A well-conducted section 202 review of suitability will not be invalidated merely because the earlier section 189A assessment/PHP was imperfect, provided the review addresses suitability on the merits and contains no legal error.
Best practice remains essential: Properly conduct section 189A assessments and keep PHPs under review—failures may still be exposed and quashed by JR, and inadequate assessments can make the reviewer’s job harder (as the Judge observed). Authorities should record how support networks and health needs were factored into suitability.
Administrative coherence: The decision prevents “paralysis” and supports the delivery of prevention outcomes even as assessments are refined.

For applicants and advisers

Strategy: If the target is the section 189A assessment or PHP itself, a prompt judicial review is the correct route. Do not rely on a later section 204 appeal from a suitability review to secure indirect invalidation.
Section 202 review: Raise all assessment-related points (including support network, medical needs, affordability, local connection, transport, schools/care packages) within the review process so the reviewing officer can consider and remedy any earlier omissions. If the review errs in law, a section 204 appeal remains available.
Time limits matter: JR must be brought promptly. Once time passes and no JR is brought, the assessment/PHP stands unless later review decisions are themselves unlawful.

For the courts

The decision harmonises prevention duty cases (section 195) with the Abed/Norton line in main duty cases (section 193), embedding a consistent, consequences-based approach across Part 7.
It channels litigation to the statutorily intended nodes: JR for assessment/PHP defects; section 202/204 for suitability and specified decisions.

Complex Concepts Simplified

Section 189A assessment: The authority must assess (i) why the applicant is homeless/threatened with homelessness, (ii) the applicant’s housing needs (including what housing would be suitable), and (iii) what support is needed to obtain and retain suitable housing. The assessment can be evidenced across multiple documents (interview notes, medical advice, banding letters, PHP).
Personal Housing Plan (PHP): A tailored action plan agreed with the applicant that sets out steps each side will take. It should be kept under review while the authority owes Part 7 duties, but the statute doesn’t prescribe a fixed review frequency.
Prevention duty (Section 195): Where an applicant is “threatened with homelessness,” the authority must take reasonable steps to help the applicant avoid homelessness. In deciding steps, authorities must “have regard” to their section 189A assessment (section 195(3)).
Suitability: Under section 206(1) and section 210, any accommodation secured in discharge of Part 7 duties must be suitable. Suitability involves factors such as size, accessibility, location, and the applicant’s medical/support needs, including (where relevant) proximity to support networks and Article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012.
Section 202 review: A statutory, merits-based administrative review of specified decisions, including suitability of accommodation offered. It is not a general review of everything the authority has done and does not include a free-standing review of the section 189A assessment or PHP.
Section 204 appeal: Appeal to the County Court on a point of law from the section 202 review decision. The focus is on whether the review decision contains an error of law.
Judicial review (JR): Public law challenge in the High Court to the lawfulness of administrative acts, including the section 189A assessment/PHP. Acts are valid unless and until quashed by JR.
“Condition precedent” vs “curative review”: Treating section 189A as a condition precedent would mean no lawful suitability decision could be made unless the assessment was flawless, causing “paralysis.” The Court rejects this. The statutory review under section 202 is designed to cure defects by reconsidering suitability on its merits.
Soneji consequences approach: When a statute is silent on the consequences of procedural non-compliance, the court asks what Parliament intended, considering purpose, structure, and prejudice/injustice. Here, that analysis supports upholding lawful review decisions notwithstanding earlier assessment defects.

Key Takeaways

New/clarified principle: In prevention duty cases under section 195, defects in a section 189A assessment or PHP do not automatically invalidate a later section 202 suitability review decision. The review is the proper corrective mechanism and, if lawfully conducted, “supersedes” earlier defects.
Section 195(3)’s “have regard” instruction does not convert section 189A into a condition precedent. Non-compliance can matter, but the remedy is JR; absent quashing, earlier acts remain valid.
Assessments may be evidenced across multiple documents; courts will examine the whole housing file through the lens of a reasonable housing officer.
Authorities should still strive for robust section 189A/PHP compliance; applicants should raise all needs-based issues within the section 202 review and use JR promptly to challenge the assessment/PHP if necessary.

Conclusion

Fatolahzadeh v London Borough of Barnet decisively aligns prevention duty cases with the Abed/Norton line: section 189A is not a condition precedent to a lawful suitability decision. The statutory design gives pride of place to the section 202 review as the corrective stage and confines section 204 appeals to points of law arising from that review. Complaints about section 189A/PHP must be brought by timely judicial review; otherwise, they cannot be used to topple an unimpeached suitability review. The decision preserves the functional integrity of Part 7 by avoiding “paralysis,” while signalling to authorities that good assessments and PHPs remain practically and legally important—both to guide decisions and to withstand scrutiny if challenged in the proper forum.