Hot off the press – judgment released today.
Birmingham, apparently intent on suicide, appealed the judicial review decision in Aweys. Birmingham City Council v Abdishakur Aweys & Ors  EWCA Civ 48. They lost, badly, on all counts.
Birmingham argued that accommodation that was not suitable under section 175(3) could still be suitable for a limited time for the purposes of section 210 after a duty under section 193 has been accepted. The court held otherwise, the definition of ‘suitable’ has to be the same before and after the housing duty arose. Awua (R (ex p Awua) v Brent LBC  1 A.C. 55) did not help Birmingham because the accommodation in that case was acceptable albeit short life housing.
Birmingham also argued that Collins J had erred in his ruling that the allocation scheme was unlawful because he held that Birmingham a) could not take financial considerations into account in making policy, and b) he purported to determine priorities between the homeless himself. The court said a) no he didn’t, and b) no he didn’t. One other technical point turned out to be based on a typo. And that was pretty much that.
This does leave a rather difficult practical situation, as a council will be in breach of duty unless it finds suitable accommodation immediately someone is accepted as homeless. While this can be waived by consent, this is not something that the council can rely on. Collins J had recognised this by giving a guideline of 6 weeks as a reasonable period in which to secure alternative accommodation. LJ Arden’s judgment worries about the impact of immediate effect, but declines to construe the statute as including ‘a reasonable time’ for the accommodation to be secured. On the other hand, she doubts whether a mandatory order would be made by the court where a council genuinely cannot secure suitable accommodation immediately.
I’m guessing that Mike McIlvaney, the Community Law Partnership and Jan Luba QC are happy bunnies tonight.
By the way, the Court limits its discussion of ‘suitability’ to the issue of the homeless at home, because there are two pending cases Richards v Ipswich BC and Manchester CC v Moran, both concerning women’s refuges, that may address the issue of suitability. Something to watch out for there.