Imam, R (On the Application Of) v The London Borough of Croydon (2021) EWHC 739 (Admin)

This is the judgment in a judicial review claim seeking a declaration that Croydon was in breach of its statutory duty under section 193(2) of the Housing Act 1996 to provide suitable accommodation, and for mandatory relief, that Croydon provide suitable accommodation, and consider the claimant’s application for band 1 housing priority.

In 2014, Croydon had accept the full housing duty to Ms I and her three children. She was placed in her current temporary accommodation in October 2014. Ms I is a wheelchair user. The property – a terraced house – “has been the subject of certain adaptations. There are three bedrooms on the upper floor, one of which (the Claimant’s) is partly filled by a large lift which also takes up much of the living room below it and which enables the Claimant to travel between the ground floor and the upper floor. The only bathroom at the Property is on the ground floor; it has been adapted into a ‘wet room’ with a toilet.”

Croydon’s initial assessment of Ms I’s housing need was that she needed “accommodation with a number of features including a single level property or one that had a through-floor lift, an adapted kitchen and a wheelchair-accessible bathroom that was on the same level as the bedrooms (and, if the property was on more than one level, a further wheelchair-accessible downstairs toilet).”

Ms I requested a review of suitability of the property shortly after moving in in 2014. An occupational therapist report in February 2015, as part of the review “raised concerns about the Claimant being unable to reach the kitchen cupboards and slipping from the shower seat in the bathroom. It was also noted that the Claimant was unable to access the garden via the back door, due to the layout of the kitchen (although the Claimant did not wish to have a particular kitchen cupboard removed, which might have improved access to the back door) and that there was no upstairs toilet. The Occupational Therapist considered that the Property, although “not ideal” in meeting all the recommendations made in the Defendant’s initial disability housing assessment, was “sufficient in the short term… until a more suitable property can be found.””

In June 2015, the review decision accepted that the property was not suitable, on the basis that the only bathroom was on the ground floor. The review letter stated that another offer of accommodation would be made.

Ms I meanwhile had band 3 priority on Croydon’s choice based letting scheme.

Nothing then happened. In response to Ms I’s solicitors requesting progress reports, Croydon twice offered the property as permanent accommodation, with Ms I’s solicitors twice replying to point out it had already been found to be unsuitable. A couple of also unsuitable properties were put forward.  In November 2019 a juicial review pre-action protocol letter was sent, to which there was no response, and this claim then filed in March 2020.

Croydon effectively admitted breach of of the s.193 duty. The two issues were i) the application for mandatory relief, and ii) whether Croydon’s failure to consider Ms I for band 1 priority was lawful.

i) Mandatory relief

Ms I argued:

that this was a case in which a mandatory order requiring the Defendant to provide suitable accommodation to the Claimant should now be made, the test (insofar as there is one) being whether or not a mandatory order would require the Defendant to “do the impossible”. She submitted that it was not necessary, for a mandatory order to be made, that the Claimant’s situation should be found, in the words of Lord Hope and Lady Hale in their speeches in Ali, to be “intolerable” or one in which “enough is enough”, and that these observations were not relevant to the grant of mandatory relief in the case of accommodation which was unsuitable because they addressed the different question of when short-term accommodation might become unsuitable. Ms Steinhardt submitted in the alternative that, in any event, the Claimant’s circumstances did reach the threshold described in the speeches in Ali. She contended that not making a mandatory order would have the effect of stripping the duty under section 193(2) of its power and force, turning it into a ‘best endeavours’ duty, and would do so for those with the most profound disabilities who are most in need of assistance.

Croydon argued:

there was a wide spectrum of potential breaches of the statutory duty under section 193(2), and that where on the spectrum the breach was in the particular case was relevant to the question of relief. He submitted that breach in the present case was at the less serious end of that spectrum and that the Property, although unsuitable overall, could on the evidence be described as “nine-tenths suitable”. He relied on what he submitted was an absence of evidence from the Claimant about her current situation, noting that in the reported cases, including M v Newham, there was such evidence. Mr Rutledge also submitted that the Court could not, when considering what relief to grant in the Claimant’s case, focus on her individual circumstances and would need to take into account the position of other applicants. He submitted that it would require a compelling case (which this was not) for the court to make a mandatory order knowing that there were other applicants who would lose out as a direct result. He submitted that the question of the local authority’s resources was relevant to relief, and that the Claimant had not challenged the allocation of resources to housing by the Defendant; it was not for the court to say that more money ought to be spent. Mr Rutledge was content to accept that an order should not be made if it would require the local authority to “do the impossible” but submitted that this did not set a particularly high hurdle: it meant only not requiring the authority to do something that was not possible either in practical or legal terms. Mr Rutledge also submitted, in substantial disagreement with Ms Steinhardt, that the passages from the speeches of Lord Hope and Lady Hale in Ali, to which I have made reference, were also of relevance to the issue of whether mandatory relief should be granted, and that accommodation might cease to be suitable without the situation becoming “intolerable”.

The Court decided not to exercise its discretion to make an order for mandatory relief.

At para 76 of the judgment, the Court came to an interpretation of  Birmingham City Council v Ali & Others [2009] UKHL 36 (our note), that while Lady’s Hale’s comments were on whether an overcrowded property could remain suitable in the short term, without the council being in breach of its homeless duty by leaving the applicant there, these comments also applied to grant of relief:

Although Lady Hale’s observations in these paragraphs of her opinion were primarily directed to the issue of when it would no longer be reasonable for an applicant to occupy her accommodation and thus to whether the local authority was in breach of the statutory duty at all, their application is not, in my judgment, limited to that question. These factors are also relevant to the grant of relief where the local authority is in breach. Lady Hale recognised that there will be cases in which the court ought to require a local authority to offer alternative accommodation to an applicant; equally, she made clear that (amongst other things) budgetary constraints and the limited number of properties available for those with disabilities were matters which were relevant considerations and that the practical realities of the situation in which local authorities find themselves must be taken into account. It is also right to record that the issue of mandatory relief did not arise in the Ali cases because all the applicants had been rehoused by the time that the appeal came to be determined; and Lady Hale at (64) stated that she “would not be inclined to enter into debate about the criteria governing the grant of mandatory injunctions in homelessness cases”. The Claimant’s case, in contrast, is primarily about the grant of mandatory relief.

This was the approach taken by Linden J in R (on the application of M) v London Borough of Newham [2020] EWHC 327 (Admin) (our note). The Court did not accept the claimant’s arguments that these passages of Lord Hope and Lady Hale in Birmingham v Ali did not apply to the grant of mandatory relief, or that they were limited to situations where suitability was disputed.

In this instance, there was the claimant’s solicitors letter from 2015 during the review process, stating that “the Claimant, due to difficulties with continence, was unable to reach the ground floor toilet, located in the bathroom, in time during the night. It was stated that the Claimant had experienced accidents, on an unspecified number of occasions, which she had found humiliating and distressing.” However there was no further evidence before the court from the claimant as to the seriousness of the impact of living in the property upon her.

Mandatory relief was refused on the basis that:

i) “the Claimant has not established that the conditions in which she is presently living are having an extremely serious effect on her, or that the situation is “intolerable” (per Lord Hope in Ali) or that “enough is enough” (per Lady Hale in Ali)”

ii) Croydon admitted the breach and intended to comply with its statutory duty. “the Defendant is doing what it reasonably can, consistent with the proper application of its policies and the limited resources available to it, to fulfil its statutory duty to the Claimant in the circumstances of this case.”

iii) The extended time period (and likely future delay) went towards making an order for relief. It did not help Croydon that there had been other people waiting longer. But effluxion of time by itself was not enough, and:

iv) “In the present case, the Defendant’s resources are finite; the evidence before me was that its projected budgetary overspend in the current financial year is £67 million. The Claimant has not sought in these judicial review proceedings to challenge as unlawful any part of the Defendant’s budget or its allocation of resources to discharge its statutory duties under Parts 6 or 7 of the 1996 Act. I agree with Mr Rutledge that the resources available to the Defendant are relevant to the question of whether mandatory relief should be granted, and that unchallenged budgetary decisions already taken must be the starting point”

v) Croydon could not be ordered to purchase, build, or lease and adapt a property for the claimant, as this would be outside its Part VII policy “in that it would require the Claimant to be given priority over other applicants who are also waiting for suitable temporary accommodation under the Part 7 Policy”.

ii) Band 1 Priority

The claimant argued that Croydon had failed to consider exercising its discretion under its allocation policy to award Band 1 priority. Croydon had simly failed to respond to the claimant’s requests to be considered.

The Court held:

the Defendant acted unlawfully in failing to take any decision in response to the two express requests made by the Claimant that she should be moved into Band 1. Ms Steinhardt is, in my judgment, correct in her submission that the Defendant was under an obligation, as a matter of public law, to consider and decide those requests. It did not do so. In the circumstances, it is unnecessary to consider whether the Defendant was under a separate duty to reconsider the issue of its own motion: specific requests for re-categorisation were made by the Claimant and were, it appears, ignored by the Defendant.

Comment

I gather that an appeal is likely, and this is probably a good thing. I am not at all sure about the mapping of Lord Hope and Lady Hale’s comments in Birmingham v Ali on to the s.193 duty, not least as Birmingham v Ali was concerned with a situation in which accommodation in which it was not reasonable for the applicant to remain could nonetheless be ‘suitable’ in the short term as temporary accommodation (the ‘homeless at home’ position).

This case, however, concerned property which was admitted to be unsuitable by Croydon, and in which the applicant had been left for 5 years after that admission.

As Linden J in R(M) v Newham acknowledged, Lady Hale’s judgment in Ali was to the effect that “… it was implicit … that reasonable delay in finding alternative accommodation would only be permissible if the accommodation was regarded as suitable for the time being, and that the housing authority would otherwise be in breach of its duty under section 193(2)”. (While the position of Lord Scott and Lord Hope in Ali seemed to be more in support of a ‘reasonable period’ approach, they both agreed with Lady Hale’s judgment.) A property that is agreed to be unsuitable for s.193 purposes cannot then be ‘suitable for the time being’.