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Section 188(1) accommodation, suitability and mandatory orders


We are very grateful to Alice Irving of Doughty Street Chambers for the following note of a judgment in the Administrative Court on an application for interim relief. It is a very interesting case not only on section 188(1) accommodation but also on mandatory orders after Imam v LB Croydon (our note).

R (AO) v LB of Haringey (Central London Administrative Court, 9 May 2024)

Interim relief was granted in favour of a mother and two primary school aged children who were being accommodated by the Defendant local authority under section 188(1) Housing Act 1996 in unsuitable bed and breakfast accommodation. The Court considered arguments that a mandatory order should not be made because of resource constraints and applied the Supreme Court decision of R (Imam) v Croydon London Borough Council (2023) UKSC 45, [2023] 3 WLR 1178 (“Imam”).


The family had been in bed and breakfast accommodation provided by the Defendant since 25 March 2024. They were in a single room in a hotel which was around 1 ¼ – 1 ½ hours from the children’s school. Prior to approaching the Defendant for homelessness support, the family had already lived in a single room for around two years.

The interim relief hearing was initially listed for 2 May 2024, when the family had been in B&B accommodation for just under six weeks. Dexter Dias KC sitting as a Judge of the Administrative Court adjourned the interim relief application to the following week and ordered the Defendant to provide evidence as to the availability of accommodation. The interim relief hearing took place on 9 May 2024.

The legal framework

The Defendant admitted breach of their duty to secure suitable accommodation for the Claimant’s occupation, contrary to s.188(1) Housing Act 1996. They had no option but to do so, given the effect of the Homelessness (Suitability of Accommodation) (England) Order 2003/3326 which provides that B&B accommodation is not suitable for an applicant with whom dependent children reside. Although a limited exception to this is recognised in Article 4, where no accommodation other than B&B accommodation is available, that exception is no longer available if the applicant has been in B&B accommodation for six weeks.

Despite admitting a breach of their statutory duty, the Defendant resisted the making of a mandatory order. Both parties referred to Imam which considered when a court should exercise its discretion to refuse a mandatory order.

The Defendant sought to limit the relevance of Imam to the case at hand, on the basis Imam concerned an admitted breach of the main housing duty (s.193(2) Housing Act 1996) in circumstances where Ms Imam had been in unsuitable accommodation for six years. In contrast, in this case the accommodation had only been deemed unsuitable for three days and there were no health conditions or disabilities within the family. Thus, the Defendant argued the impact of unsuitable accommodation was not significant. The Defendant encouraged the court to take a broad approach in exercising their discretion to refuse a mandatory order.

The Claimant argued that the following principles could be derived from Imam, and they applied equally to the s.188(1) interim accommodation duty:

  • The starting point is that the Defendant is subject to a duty imposed by Parliament by statute that is not qualified in any relevant way by reference to the resources available: para 39. Where a breach of law is established, the ordinary position is that relief should be granted and the court should proceed cautiously in exercising its discretion to refuse to make an order and should only do so where the course is clearly justified: para 43.

  • A court should not make a mandatory order where it is impossible to comply with: para 48. The onus is on the Defendant to explain to the court why a mandatory order should not be made; the authority must provide a detailed explanation of why it would be impossible to comply with an order: para 53. The Defendant must show it has taken all reasonable steps to perform its duty: para 54. It will not be sufficient to speak only in generalities on the critical question of what suitable accommodation is available to the Defendant: para 57.

  • It is relevant to consider whether a mandatory order would have the practical effect of requiring the Defendant to divert funding from allocations already made in its annual budget, thus unduly disrupting the balancing exercise carried out by the Defendant as regards the funding for performance of its different duties: paras 61-2. Where an authority has limited resources available, it must give priority to meeting its statutory duties over fulfilling its merely discretionary functions: para 56.

  • Other relevant considerations are whether the Defendant was on notice in the past of a problem in relation to non-performance of its duty but failed to react in good time, the extent of the impact on the individual to whom the duty is owed, whether the Defendant has shown signs of moving to rectify the situation, and whether making a mandatory order would create unfairness to others by giving the Claimant undue priority: paras 67-70.

The evidence before the Court

The Defendant filed evidence which explained, inter alia, that they acquired temporary accommodation via a Dynamic Purchasing System, called “Adam”, operated in partnership with other boroughs. They explained that all suppliers providing nightly paid accommodation to the Defendant must be accredited on the Adam system, with the process incorporating due diligence checks to ensure they are competent and have the capacity to provide the service.

They also stated the Defendant used a range of types of accommodation to meet their responsibility to provide interim accommodation, including their own hostel stock, properties that have been vacated to facilitate regeneration, properties leased from private landlords and emergency accommodation sourced through suppliers.

The Defendant’s evidence was that, due to an increasingly challenging market, they were not able to secure access to enough accommodation. Hotel use had increased, but they were committed to moving away from a reliance on hotels, and their plans to do so were contained in a “B&B Elimination Plan”. That plan was not disclosed; nor was there any summary of its content.

The Defendant said that although they were checking daily to see if new accommodation was available, nothing had yet come up. Nor could they confirm when accommodation would become available, as the situation was “fluid”, although they hoped to move the Claimant and her children by the end of the week.

The Claimant filed reply evidence, which identified several units of self-contained accommodation in a suitable area which were available on a nightly or short let basis.

The Defendant responded that it was not possible for them to use this accommodation, as the suppliers were not accredited on the Adam system. The Defendant said they could not be certain of the suitability of accommodation from non-accredited providers, and could not pay by invoice, with payments being managed through the Adam system. Accreditation of any new supplier would take 4-6 weeks to process.

The Claimant’s criticisms of the evidence

The Claimant submitted that the Defendant’s evidence did not show they had taken all reasonable steps to comply with their statutory duty. In particular:

  • At no point did the Defendant’s evidence say that money was an issue. There was no evidence to support any claim that the Defendant’s budget would be distorted if a mandatory order was made.

  • The B&B Elimination Plan had neither been provided nor summarised.

  • There was no evidence as to how many suppliers were accredited in the Adam system, nor of whether steps were being taken to increase the number of accredited suppliers.

  • The duty under s.188(1) was to secure an outcome: that suitable accommodation was available to occupy. It was not a duty to set up a system. Although the Defendant was entitled to use a system, they must adopt a system that enabled them to comply with their statutory duties, or at least was sufficient to show they had taken all reasonable steps to do so.

  • The Defendant could not adopt a system which fettered their discretion as to how they would meet their duties, and then rely on that system to say it was impossible to meet their duties. It was not sufficient for the Defendant to say: (i) we only source accommodation from particular accredited suppliers of an unspecified number, (ii) even though other accommodation exists we will not access it, and (iii) therefore it is impossible to comply with our statutory duty. The Defendant had tied its own hands.

  • It was possible for the Defendant to carry out checks of alternative properties for suitability outside the Adam system, or to pay outside the Adam system. They simply chose not to do so.


David Pittaway KC sitting as a Judge of the Administrative Court Office said he faced a “difficult decision”. He noted this was not a case where the Claimant or her children had any particular medical need, nor was the accommodation “particularly dire”. Nevertheless, he did consider the distance to the children’s school to be “unacceptable”.

He noted that the Defendant had been on notice that the Claimant considered the hotel unsuitable from 1 April 2024, when pre-action correspondence was sent, even though there was only a deemed breach of s.188(1) Housing Act 1996 from 7 May 2024.

He concluded that he was not satisfied the Defendant had taken all reasonable steps to perform its s.188(1) Housing Act 1996 duty, despite the evidence and submissions advanced. He ordered the Defendant to secure suitable accommodation for the Claimant’s occupation by 6pm on 11 May 2024.


The decision in this case raises interesting questions about the systems used by local authorities to comply with their statutory duties under the Housing Act 1996, and whether reliance on those systems will enable them to avoid mandatory orders when they are in breach of their statutory duties.

The judgment is a refreshing one: the fact the accommodation was interim and had only been deemed unsuitable for a short period did not prevent a mandatory order being made. It underlines the quality of evidence that will be required for a local authority to resist the making of a mandatory order and – in particular – that a mere assertion a local authority has a system and that they have not been able to secure accommodation through their system will not suffice.

The Claimant was represented by Alice Irving of Doughty Street Chambers, instructed by Lou Crisfield and Siobhan Cavanagh of Miles and Partners.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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