Hot on the heels of the decision in R (Imam) v London Borough of Croydon (2021) EWHC 739 (Admin) (see our note here) comes this altogether more satisfying decision, Elkundi & Ors, R (On the Application Of) v Birmingham City Council (2021) EWHC 1024 (Admin), on the nature and enforceability of the duty under s. 193(2) Housing Act 1996.

This was a judicial review brought by four claimants who were each owed the duty under section 193(2) of the Housing Act 1996 by Birmingham City Council. All claimants were living in temporary accommodation which Birmingham had at some point decided was unsuitable, but in which they had nonetheless remained for more than a year. The claimants sought relief in the form of a mandatory order requiring the Council to secure accommodation, as well as declarations that the duty under section 193(2) is immediate and non-deferrable, and that the system operated by Birmingham to manage applicants in unsuitable accommodation was unlawful.

Facts

El Kundi

Mr Elkundi and his family had been living in temporary accommodation since 2015. The accommodation was spread over two floors, and the family had to climb four flights of external stairs to reach the entrance. This was a problem for Mr Elkundi, as he suffered from osteoarthritis which meant that climbing stairs caused him significant pain.

Following a section 202 review, a review officer wrote to Mr Elkundi in January 2020 stating: “I consider that your current accommodation is unsuitable on mobility grounds”. Mr Elkundi was informed that he had been placed on Birmingham’s “planned move list” and told to wait.

Ahmed

Mr Ahmed was a single parent who lived with his seven children, two of whom were severely disabled. He was placed in three-bedroom temporary accommodation under section 193(2) in March 2019. The accommodation was so overcrowded that four of the children shared one bedroom. The lack of space was affecting the health of the two disabled children in particular, with Mr Ahmed’s daughter having to postpone a necessary surgery because she would be unable to safely recover in the accommodation. In December 2019, again following a section 202 review, Birmingham’s review officer wrote to Mr Ahmed stating “I consider that your current accommodation is unsuitable on the basis of overcrowding.” Like Mr Elkundi, he was told that he would be placed on the “planned move list” but was not given further details.

Ross

Mrs Ross had multiple, complex disabilities, and she required adapted accommodation that would allow her to move freely using her powered wheelchair. In September 2018, Mrs Ross was placed in a bungalow which was offered to her as temporary accommodation under section 193(2). The bungalow required significant adaptations, but was eventually offered to Mrs Ross under a secure tenancy on the basis that adaptations could be carried out. The Council omitted to formally discharge the duty under section 193(2) and Mrs Ross eventually sought a review of its suitability in August 2020. In October 2020, the review officer notified Mrs Ross that “at the present time it cannot be asserted that (your) current accommodation is suitable for (you) under the relevant legislation , and that the only conclusion is that the accommodation is unsuitable.”

A distinction between Mrs Ross’s case and those of the other claimants is that Birmingham had made concerted efforts to find her suitable accommodation, including offering to adapt the bungalow, and seeking accommodation for her in a supported living scheme.

Al Shameri

Mr Al Shameri lived with his wife and six children in two-bedroom accommodation which Birmingham had decided was unreasonable for him to continue to occupy. Mr Al Shameri opted to continue living in this accommodation at the point when Birmingham accepted his homelessness application. On his case, he did not understand that temporary accommodation would have been available to him. He was eventually notified that he was owed the duty under section 193(2), but he was not offered alternative accommodation. In September 2020, Mr Al Shameri’s solicitors sent a pre-action protocol letter alleging breach of section 193(2). In response, Mr Al Shameri was told he would be placed on the planned move list. Shortly before the final hearing of the claim, Mr Al Shameri was offered accommodation and requested a review of its suitability. Mr Al Shameri’s review was ongoing at the time of the hearing.

The Planned Move List

Each of the claimants had at some point been placed on Birmingham’s ‘planned move list’, without being told what that list was or how long they would be expected to wait for suitable accommodation. Over the course of the proceedings it became clear that the list was just a spreadsheet with a list of names of applicants waiting for suitable accommodation, either because they were already in unsuitable accommodation or because their accommodation would soon become unsuitable. The spreadsheet did not have any information about anyone’s particular needs, and the Council accepted that disabled people were not prioritised. All that would happen once an applicant was put on the list was that Birmingham would check its list of vacant properties every day and wait for something suitable to turn up.

Judgment

The central issue in the claims was the nature of the duty under section 193(2). The claimants argued that, reliant on M v Newham [2020] EWHC 32, the duty was immediate, unqualified and non-deferrable. Birmingham argued that M v Newham had been wrongly decided, and that the duty was only to secure accommodation within a reasonable period of time.

The 193(2) Duty

Steyn J conducted a thorough survey of the authorities on this point. Firstly, she concluded that she could not see any powerful reason to depart from the judgment of Linden J in M v Newham. She nevertheless proceeded to analyse the authorities given the lengthy arguments she had heard, and expressed her agreement with the claimant’s submissions which she summarised as follows:

163. The claimants contend that, on its face, the section 193(2)duty to secure that accommodation is available for the applicant is triggered as soon as the duty is found to be owed and it is unqualified. The provision does not contain the qualifying words ” within a reasonable period ” or words to similar effect.
     
164. Nor is it a duty to take ” reasonable steps “. The claimants contrast the terms of section 193(2) with the relief and prevention duties (see §§130 to 132 above) in which Parliament has imposed express duties to take ” reasonable steps “, with concomitant obligations on the local housing authority to record those steps in writing, and give the applicant a right to request a review of any decision as to the steps the local housing authority is to take. While the claimants acknowledge that these provisions, unlike section 193(2) , were not in the original Act but have been added later, nonetheless the claimants contend that they show that if Parliament had intended to qualify the nature of the main housing duty it could and would have done so expressly
     
165. The claimants submit there is no justification for glossing the words in the way the Council proposes. In Part VII, Parliament was addressing the immediate and urgent problem of homelessness. The main housing duty is the highest duty that can be owed to any applicant under Part VII . It is only owed to those who are not only currently and unintentionally homeless, and eligible for assistance, but who have also been classified by Parliament as having a ” priority need ” for housing assistance because, for example, the household includes children or a person who is vulnerable by reason of disability. While the unqualified duty is onerous, it is moderated by the elasticity of the concept of suitable accommodation. So, for example, bed and breakfast accommodation may be suitable for a family with children for a few weeks, if accommodation is urgently required to ensure they have a roof over their heads, even though such accommodation would not be suitable for them for an extended period. Or the local housing authority may determine that self-contained accommodation that is significantly smaller than the family would need in the long-term, given the size and make-up of the family, is suitable accommodation for, say, a period of months.

The Decisions in Each Case

Steyn J went on to decide whether in each of the particular cases Birmingham had decided that the claimants were living in unsuitable accommodation. It may seem surprising that she had to do so, given that in three of the four cases the claimants had received decisions which plainly stated that the accommodation was unsuitable.

The reason why this had to be addressed was because Birmingham had argued that in the cases of Mr Elkundi, Mr Ahmed and Mrs Ross, a benevolent reading of the decision letters would show that when the reviewing officer said “unsuitable” what he really meant was “unreasonable to continue to occupy”. This got short shrift from Steyn J, not least because Birmingham had previously argued that a section 204 appeal arising from a very similarly worded suitability decision was academic precisely because the review had concluded the accommodation was unsuitable.

Consequently, Mr Elkundi, Mr Ahmed and Mrs Ross were found to be in accommodation which Birmingham had decided was unsuitable and Birmingham was in breach of its duty. As for Mr Al Shameri, Steyn J rejected the argument that he had waived his right to temporary accommodation under section 193(2), as he was not aware that such accommodation could have been available so he could not have made an informed decision. However, in his case, Steyn J found that no decision on suitability was made until Birmingham informed him that his accommodation could be suitable for a little while longer over the course of pre-action correspondence. He did not seek a review of that decision, so at that point Birmingham was no longer in breach.

In obiter, Steyn J accepted the Claimants’ argument that once a suitability decision had been made in an applicant’s favour, the local authority would be bound by that decision under the doctrine of functus officio. This would stop councils from deciding that accommodation which was once unsuitable had become suitable. If there had been a change of circumstances (e.g. the household became smaller), it would be open to councils to offer the accommodation again.

Unlawful System

The Council had been operating its planned move list on the assumption that the section 193 duty could be performed within a reasonable period of time. As this was not the case, it followed that placing applicants on a waiting list was unlawful. On top of this, it was irrational to prioritise applicants solely according to the date they joined the list, and it would also be a breach of the public sector equality duty. In the absence of a transparent policy accompanying the planned move list, it was not enough to say that housing officers had the discretion to move certain applicants up the list.

Relief

Steyn did not accept that “nothing less than impossibility will suffice to persuade a court not to grant a mandatory order” but held that whether relief should be granted should be determined in according to the reasonableness of the authority’s position, by reference to the steps and time taken. Moreover the “context in which the steps taken by the Council fall to be considered is one in which Parliament has imposed an unqualified duty with which the Council has failed to comply” (§317).

Birmingham was ordered to secure suitable accommodation for Mr Elkundi and Mr Ahmed within 12 weeks. Steyn J held that in respect of those cases:

“The Council does not contend that it would be impossible to comply with a mandatory order and in my judgment it would not be unreasonably difficult.” (§321)

It was particularly relevant that Birmingham had acknowledged that it was not using its own stock of larger units of accommodation as temporary accommodation, which signalled that it failed to recognised the unqualified nature of the duty under section 193(2).

Notably, Steyn J did not accept that the difficulties caused by Covid-19 absolved the Council of its failure to provide suitable accommodation.

Mrs Ross was not given mandatory relief, largely because the Council had made what Steyn J considered to be concerted efforts to find her suitable accommodation. In respect of Mr Al Shameri, the Council was not in breach of its duties at the time of the final hearing.

All claimants were granted declaratory relief.

Comment

Housing advisers across the country no doubt breathed a sigh of relief when this judgment was published. Not only does it state unequivocally that councils cannot defer or delay performance of the section 193(2) duty, but it is also an example of the court refusing to deny claimants mandatory relief where councils have not shown that it is impossible or unreasonable for accommodation to be secured. Even under the pressures caused by the pandemic, councils should be doing more than waiting for suitable accommodation to free up.

However, this judgment is not likely to be the end of the matter as, recognising the significant public interest in the issue, Steyn J granted Birmingham permission to appeal in relation to the nature of the duty under section 193. It seems that we will have to hold our breath a little longer.

(Article by Marie Paris, pupil barrister at Doughty Street Chambers)