Imam, R (on the application of) v London Borough of Croydon (2023) UKSC 45

Full transparency – I acted for Crisis on an intervention in this case.

This is the long awaited Supreme Court decision in Imam v Croydon on what conditions a court should have regard to in deciding whether to make a mandatory order that the local authority comply with its section 193(2) Housing Act 1996 duty to provide suitable accommodation. At first instance, Croydon have avoided a mandatory order, despite Ms Imam having been in what was acknowledged to be unsuitable accommodation for what was then 5 years, in part on the basis of a fairly general assertion that LB Croydon had no suitable houses and no money (our note here). This was reversed by the Court of Appeal (our note here), which held that a pleading of lack of resources would have to be demonstrated in detail, with evidence of steps taken, before a court would accept this as a reason not to make a mandatory order.

LB Croydon appealed to the Supreme Court on the issue of whether limits on the resources of a local housing authority should affect the exercise of a court’s discretion as to the remedy to be granted when the authority is in breach of its duty under section 193(2) of the Act.

To cut a long story short, Croydon’s appeal was dismissed. The Supreme Court, in Lord Sales judgment, restates the starting position, as per R v East Sussex County Council, Ex p Tandy (1998) AC 714, that

where Parliament imposes a statutory duty on a public authority to provide a specific benefit or service, it does so on the footing that the authority must be taken to have the resources available to comply with that duty. It is not for the court to examine the position with a view to possibly arriving at a contrary conclusion. Nor is a court entitled to dilute a clear statutory duty by reference to its own view of the resources available; nor may it absolve an authority in any general way from complying with such a duty by reason of the insufficiency (in the court’s opinion) of the resources available to it.

The Supreme Court noted the paucity of evidence from LB Croydon

In light of this, the Court of Appeal was also right to find that Croydon had not sufficiently explained its situation in its evidence, if it wished to avoid a mandatory order being made against it. Mr Beasley spoke only in generalities on the critical question of what suitably adapted properties were available to Croydon and, in so far as his evidence suggested that designation of such properties for allocation under the Part 6 scheme was equivalent to designating them for use to meet Croydon’s obligations under Part 7, that reflected a legal error in Croydon’s approach to the use of its resources. Croydon has a discretion whether to make properties available for the purposes of allocation under its Part 6 scheme, but a duty under Part 7 of the Act to provide suitable properties to persons such as Ms Imam.

That said, allocation of funds in a budget was for a local authority, not the courts.

if a court makes a mandatory order which has the practical effect of requiring an authority to divert funding from allocations already made in its annual budget, it would unduly disrupt that balancing exercise carried out by the local authority as regards the funding for due performance of its different functions. The court cannot know with any confidence whether its order will cut across the performance of other statutory duties to which the authority is subject. The making of a mandatory order gives the statutory duty which it reflects a super-added force, which means that the authority has to give priority to complying with it; but in circumstances where the authority might be struggling to accommodate and perform properly a range of statutory duties, this may have an unduly distorting effect upon the overall balance already struck by the authority in its previous budgeting process in an attempt to reconcile all the demands upon it. It is difficult to know whether by requiring, through the making of a mandatory order, an authority to give priority – after settling its overall budgetary allocations – to one out of the many statutory duties and functions imposed on it, the carrying out of the authority’s other duties and functions will be unduly compromised. Unlike in the field of financial insolvency procedures, there is no process for imposing a moratorium on claims with a view to ensuring that they are all accommodated fairly and equally on a pari passu basis. The authority is the clearing house for meeting all the claims made upon it. A court should be careful not to exceed its own proper role by disrupting without good justification the authority’s own attempt to reconcile those claims in a fair way through its ordinary budgeting process, once that has been finalised.

But this would be a matter of evidence from the local authority, not least that there was no other source of funds or resources to meet its duty in the case before the court.

The court went on to set out five factors that are relevant for a court in deciding whether to make a mandatory order requiring the local authority to provide suitable accommodation.

The considerations set out above indicate that ordinarily, when judging whether particular conduct is possible or impossible for an authority for the purposes of deciding how the court’s remedial discretion should be exercised, the court should refer to the authority’s position as it exists at the time of the proceedings. However, this is not an absolute rule and its application may have to be qualified in light of the specific circumstances of a particular case.

Five comments should be made which are relevant to the exercise of the court’s discretion as to remedy in the present case. First, it may be that in setting its budget for the year Croydon has included a general contingency fund to deal with unexpected calls for expenditure. If so, consideration should be given to whether Ms Imam’s need to be provided with suitable accommodation could be met out of that fund. This may be a way in which Croydon could meet its legal obligation to Ms Imam with minimal risk of disruption to the proper carrying out of its general functions. If there is such a contingency fund, Croydon should explain why it cannot be used.

Second, it is a factor relevant to the exercise of the court’s discretion if it emerges that the authority was on notice in the past of a problem in relation to the non-performance of its duty but failed to take the opportunity to react to that in good time. The court cannot provide encouragement for what would amount to a settled position of the authority to act in disregard of the duty imposed on it by Parliament. The longer an authority with notice of the problem has sat on its hands, the more important it may be for the court to enforce the law by making a mandatory order rather than marking the unlawfulness of the authority’s conduct by making a quashing order or declaration. However, since the critical decisions regarding budgeting for any necessary expenditure to meet a duty are likely to be taken at council level, an inquiry may be required to examine when the authority became aware of the problem at that level and, if they remained unaware of it at that level, why that happened.

Third, another relevant factor is the extent of the impact on the individual to whom the duty is owed. It is the vindication of their right which is being denied, and if the impact on them of the failure to comply with it is very serious and their need is very pressing, this may justify the court in issuing a mandatory order despite the wider potentially disruptive effects it may have. The courts below were right to consider this issue and in doing so were right to point to the fact that the degree of unsuitability of the Property was comparatively limited, though not to be disparaged: paras 25 and 30 above. The less the impact on the individual, the less compelling will be the grounds for making an immediate mandatory order with potentially disruptive effect. Instead, it may be more appropriate to make a mandatory order which is suspended for a period or a quashing order, to allow the authority time to consider its position and reflect on how best to order its affairs going forward. In cases of this nature a claimant should ordinarily adduce evidence about the impact on them, of which they have better knowledge than the authority. They have a responsibility to provide the court with relevant information to assist it in the exercise of its discretion.

Fourth, if there is no sign as things stand at the time the matter is before the court that the authority is moving to rectify the situation and satisfy the individual’s rights, that is a factor pointing in favour of the making of a mandatory order. In such a case, the imperative to galvanise the authority into taking effective steps to meet its obligations more promptly will be stronger. Again, the courts below were right to have regard to this factor: paras 25 and 30 above.

Fifth, in deciding whether to make a mandatory order, a court should take care not to create a situation which is unfair to others, by giving a claimant undue priority over others who are also dependent on a local housing authority for provision of suitable accommodation and who may have an equal or better claim as compared to the claimant. In my view, the Court of Appeal was properly alert to this point. It rightly accepted that, in terms of provision of permanent council housing, Ms Imam could not be promoted above others higher up the queue for such accommodation according to the Part 6 scheme: see section 166A(14). But it also correctly relied on the distinction between the duty to provide suitable temporary accommodation to Ms Imam under section 193(2) and a mere discretion to make properties available to be used for the purposes of its Part 6 scheme. If it transpires on further investigation that Ms Imam’s needs are in competition with those of others with disabilities who are also owed a duty to be accommodated in suitably adapted accommodation pursuant to section 193(2), Croydon should put proposals to the court as to how it ought to proceed and it will be for the court to decide what is the appropriate order in those circumstances.

All Croydon’s other arguments were dismissed, in particular that it would have been expensive and not  cost-effective to carry out adaptations to Ms Imam’s present accommodation.

In my view, this again is no answer to Ms Imam’s claim. Croydon admits that it has failed to comply with its duty under section 193(2) to provide Ms Imam with suitable accommodation. Subject to the points made above, she is entitled to a remedy. It is not an answer for Croydon to say that it is expensive and not cost-effective to comply with its duty. It is legally obliged to comply. In any event, Croydon has explained that Ms Imam is some way from the head of the queue for allocation of a secure tenancy under Part 6 and the facts of the case show that she has had to be accommodated at the Property for about six years. It is by no means clear that if adaptations had been made to improve the toilet facilities at the outset that these could be described as not cost-effective. Further, it is likely that Croydon will, from time to time, have to accommodate others who need wheelchair access, including to toilet facilities on the first floor, and if the adaptations are made Croydon will be able to use the Property for them when it is vacated by Ms Imam.

And that was that for Croydon. As evidence on the five factors was lacking from LB Croydon and also Ms Imam, the case was remitted to the High Court for a further hearing as to making a mandatory order.

However, for reasons I’ll come back to below, we must also note paras 38 and 39 of the judgment.

As Lewis LJ observed (para 77), the duty owed is immediate, non-deferrable and unqualified. The precise steps to be taken to comply with the duty were not the subject of detailed submissions in the present appeal. The nature of the duty is such that it calls for the authority to go through a process of giving due consideration to the applicant’s case and forming a judgment about what should be done to satisfy the obligation which has arisen. The duty under section 193(2) is to “secure” that accommodation is available for occupation by the applicant. Section 206(1) provides that this may be done by “securing” that suitable accommodation provided by the authority is available or that the applicant obtains suitable accommodation from some other person, or by giving the applicant advice and assistance such as will secure that suitable accommodation is available from some other person. All three processes, and choosing between them, may involve a period of time to allow consideration of how the “securing” of suitable accommodation may be achieved and then carrying that project into effect (for example, by giving an applicant the means or advice to secure accommodation in the private rental market).

Lewis LJ considered (para 77) that suitable accommodation is to be available from the time when the duty is owed. I reserve my opinion whether that way of putting it is exactly right. As I have said, we did not hear submissions on that point. But it is clear that the duty is directed towards achieving an end result (the provision of suitable accommodation) and, even if some time is required for consideration how ultimately to achieve this, it would be implicit that the end result would have to be achieved within a reasonable time. Moreover, since the end result is intended to satisfy an urgent and important need (the provision of suitable living accommodation), a reasonable time to allow for consideration of the appropriate means to secure it would be short. It may be that a local authority has an obligation to proceed in stages, by accommodating someone with an urgent need as best can be achieved at very short notice, while taking somewhat longer to consider how better accommodation which could be regarded as suitable can be secured thereafter. It is not necessary for us to examine this issue. In the present case, Croydon has failed to fulfil its duty over almost six years. It breached its duty at a very early stage. The question, therefore, is what remedy the court should grant in relation to that breach of duty.

Comment

This is, of course, very welcome. If Croydon had succeeded, then virtually any breach of statutory duty by a local authority could be countered by generalised hand-waving about scarce resources and lack of funds. That, this judgment makes clear, is simply not an answer (or a reason not to make a mandatory order) where there is a clear, immediate duty on the local authority.

The factors raised by the judgment for consideration are, I think, sensible, and go to the court’s discretion as to whether to make a mandatory order.

The section 193(2) duty is upheld as an unavoidable obligation, not something that a local authority might just put a bit of effort into fulfilling, but then find it is all too hard and give up.

But, in view of what seems to me to be a somewhat disingenuous report on the judgment by Cornerstone Barristers, from counsel for LB Croydon, a couple of things need to be said.

Firstly, claiming that the judgment upheld Croydon’s argument that resources were relevant to the decision to make a mandatory order is a stretch, where Croydon’s every argument about the Court of Appeal failing to take proper account of its resources was dismissed. That the Supreme Court went with the long established principle that a mandatory order should not be made where there was clear evidence that it would be impossible to fulfil is hardly a ringing endorsement of ‘taking resources into account’. What the Supreme Court has required is that a local authority provide clear and detailed evidence as to impossibility without interfering with funding allocations.  Describing that as ‘taking resources into account’ is, well, a stretch.

Secondly, that article states

There is also a very important passage in which the Supreme Court clearly indicated that the particular duty in question, contained in s.193(2) Housing Act 1996, was a duty to secure accommodation “within a reasonable time”: §39.

This was why I quoted paras 38 and 39 above. The Supreme Court a) expressly made no such finding, b) had not heard argument on the issue (which was actually decided by the Court of Appeal in the joined appeal of Elkundi v Birmingham, and not appealed by Birmingham) and c) would therefore require a trip to the Supreme Court on the issue for any local authority to have the remotest prospect of relying on this. I think this should have been made clear by Cornerstone.

Additionally, the Supreme Court, insomuch as it indicated this, also indicated that ‘a reasonable time’ was a matter of a short time, probably a few days, with other accommodation secured in the meantime. It was not, pace LB Croydon, six years.