R (Elkundi) v Birmingham and R (Imam) v Croydon (2022) EWCA Civ 601 (not on Bailii yet. Copy of the judgment here)
Two joined appeals on local authority duties to provide suitable accommodation under section 193 (2) Housing Act 1996 were before the Court of Appeal. We reported the first instance decision in Elkundi here, and in Imam here.
In Elkundi, the issue was whether, having found that accommodation was unsuitable, the local authority then had a ‘reasonable period’ to secure alternative accommodation (Birmingham having basically put people on a waiting list). The High Court had said the duty was immediate, non-deferrable and unqualified.
The Court of Appeal agreed, as a matter of statutory interpretation.
Section 193(2) defines the content of the duty. The local authority “shall secure that accommodation is available” for occupation. “Shall” in this context means “must”. “Secure” in this context means that the housing authority is responsible for ensuring that accommodation “is available for occupation”. “Is available” means that suitable accommodation is to be available from the time when the duty is owed, that is from the time when the local housing authority is satisfied that the person meets the criteria so that the duty is owed to him. The natural reading of those words, read in context, is that, once the duty is owed, the obligation on the housing authority is to ensure that accommodation is available for that person. In that sense, the duty is immediate, arising when the duty is owed. It is non-deferrable and unqualified, in that the duty is to secure that accommodation “is available for occupation”, not that accommodation will become available within a reasonable period of time.
This was not qualified by section 206(1)(c)
section 206 provides that an authority’s functions can only be discharged in one of the three ways set out (and not by any other method). It does not prescribe that all three methods must be available for use in respect of each duty, or each set of circumstances.
The decision as to suitability deals with the time when the duty arises and its nature.
Suitability is, as the Judge said, a flexible concept. It will include factors such as the nature of the accommodation, the length of time that the homeless person has been in the accommodation and his and his family’s needs. The lack of alternative accommodation may also be a factor affecting what is suitable in the short or medium term as may the fact that the housing authority has limited resources available to secure accommodation. There may be other factors which are relevant either generally or in a particular case. This judgment is not intended to suggest any exhaustive list of factors capable of being relevant to the question of suitability.
In other words, the duty to secure that suitable accommodation is available does not mean that permanent accommodation suitable for long term occupation must be provided immediately once the duty is owed. Different accommodation may be provided at different times to ensure that the duty is being performed. There may be stages on the way to the offer of secure accommodation under Part VI, or an assured tenancy in the private sector. What is suitable may, therefore, evolve or change over time depending on all the circumstances.
But once accommodation was unsuitable, other suitable accommodation must be provided.
The corollary is that local housing authorities will need to consider with care the question that they are addressing. They will need to consider whether the accommodation currently being occupied is suitable in the short or medium term but unsuitable in the longer term, or whether the accommodation is currently unsuitable. They will need to ensure that their decision letters clearly reflect the conclusion that they reach on that issue.
The Court of Appeal adopted the decision of the Court of Appeal in R (Aweys and others) v Birmingham City Council (2008) EWCA Civ 48 (our note) on s.193 duties, to the extent that this was not changed by the House of Lords decision in what was then called Ali v Birmingham City Council (our note), which was decided on different grounds and not on the issue in this case.
On other grounds, i) Birmingham’s policy of the waiting list was unlawful, ii) Birmingham was not entitled to rely on an applicant’s waiver on being moved when what had been waived was s.188 interim accommodation and there had been no explanation of the s.193 duty subsequently given to the applicant. On whether Birmingham could change its assessment of suitability after finding accommodation unsuitable, the view given below was obiter, and this was not the case in which it fell to be decided.
Birmingham’s appeal was dismissed.
In Imam, the issue was whether and when the court should make a mandatory order if the council had been found to be in breach of the section 193 duty to provide suitable accommodation. The claimant had been left in unsuitable accommodation for over 5 years and Croydon effectively admitted its breach of the s.193 duty at trial.
In the first instance judicial review, the court had found it would not make a mandatory order because (as per our previous note):
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”.
Ms Imam appealed to the Court of Appeal.
She argued that placing the burden on her to demonstrate a serious effect was to reverse the burden where there had been a longstanding breach and it was properly for Croydon to show it had cogent reasons for the breach and its failure to comply with its duty. The Council’s budgetary constraints and issues were not a reason to refuse a mandatory order. Moreover, Croydon had not given any reasons why its own properties could not be used to fulfil its Part VII duties in suitable cases, or why it did not consider out of borough accommodation.
submitted that public law remedies are discretionary. In deciding whether to grant a mandatory order, a court would consider whether a local housing authority was attempting in good faith to discharge its duties, whether the failure to discharge the duty resulted from circumstances over which the authority had no control, and the competing rights of others. Mr Rutledge relied upon R v Bristol Corporation, Ex p. Hendy  1 WLR 498 as establishing those propositions. A court ought to have regard to others who had been waiting for a longer period of time for the allocation of the necessarily limited number of properties available to Croydon.
While confirming mandatory relief was a discretionary remedy for the court, the Court of Appeal held
a range of factors may be relevant to whether it is appropriate for a court to grant a mandatory order to compel compliance with the section 193(2) duty. These include the nature of the accommodation and the extent to which it is unsuitable, and the impact on the living conditions of the homeless person and his family. They include the length of time that the homeless person has been left in unsuitable accommodation and the likelihood of suitable accommodation being secured in the relatively near future as that may mean that no mandatory order is required. See generally the non-exhaustive list of factors set out in the judgment of Scott Baker J in R (Khan) v London Borough of Newham  EWHC Admin 589 at paragraphs 8 to 14. Resources and financial constraints on the housing authority are relevant to whether it is reasonable for a person to continue to occupy accommodation or in assessing whether the current accommodation is suitable. Once a duty is owed, however, and once the current accommodation is found to be unsuitable, financial constraints cannot justify non-compliance with the duty imposed by Parliament and would not of itself justify refusing to grant an appropriate order intended to bring about compliance with the duty.
But where a council has decided that it is not possible for it to secure suitable accommodation, it will have to demonstrate that it has taken all reasonable steps to secure suitable accommodation.
A court will expect a local housing authority to address with sufficiently detailed evidence the steps it has taken, and the reasons why suitable accommodation has not been forthcoming. References to the general difficulties facing housing authorities, or the lack of availability of suitable properties, may not persuade a court that a local housing authority has taken all reasonable steps particularly, when there has, for example, been a lengthy period of non-compliance with the duty, or where the accommodation falls so far below any level of suitability that more immediate action might be expected.
The court will not force the council to do the impossible, but the steps taken and difficulties faced would have to be demonstrated for the court to accept that is the position.
The authority may need to explain, for example, the number of properties of the particular type in question (such as houses with particular adaptations or with a particular number of bedrooms) it has available and why it is not possible or appropriate to use those for the grant of (unsecured and therefore non- permanent) accommodation under Part VII. It may, for example, have a number of properties that it would like to use for allocating to applicants on its waiting list for Part VI accommodation. It can be expected to explain why it is not using those properties to ensure that its Part VII duties are met.
It is not for the applicant to demonstrate that the position is ‘intolerable’ or ‘enough is enough’. That may be a powerful indiciation that a mandatory order should be made, but Lord Hope was not setting out a requirement in using the word ‘intolerable’. In using ‘enough is enough’ Lady Hale in Ali was referring to the context of whether a duty was owed (reasonable to continue to occupy), not the question of granting a mandatory order.
The court below had erred in treating the seriousness of the effect on the applicant as a kind of threshold, erred in taking budgetary constraints per se as a factor where there was a breach of duty, and erred in accepting very general evidence from Croydon that it was doing what it could.
Appealed allowed and the claim remitted to the Admin Court for consideration of a mandatory order on fresh evidence from both parties.
Firstly, it is good to see see the s.193 duty confirmed as immediate and unqualified, once accommodation is unsuitable, suitable accommodation must be secured.
Secondly, the decision on mandatory relief is to be welcomed.
Thirdly, is this a turning of the tide on the ‘oh poor us, it is so difficult and we haven’t got the resources’ handwaving from local authorities which has been a constant presence and often previously successful in many breach of duty homelessness cases? Gesturing at resource constraints will not now be enough – what steps have been taken to try to fulfil the duty and why other steps weren’t possible will have to be evidenced. I suspect this will not be easy for councils to show in a lot of cases, so ingrained has the ‘oh but resources’ response become.