Hammad, R (on the application of) v Royal Borough of Kensington & Chelsea (2025) EWHC 2425 (Admin)

This was a judicial review of RBKC’s failure to provide suitable accommodation under s.193 Housing Act 1996 to Mr H and his household. By the time of the hearing, the failure to provide suitable accommodation was admitted and the only issue was remedy.

On the factual background

The Claimant lives in a privately rented flat with his wife, Mrs Fatima Hammad, and their sons, Issa Hammad (date of birth 14 April 2005) and Mikhail Hammad (date of birth 4 November 2008).

Issa has been diagnosed with a learning disability, a communication disorder and mild pulmonary hypertension. He has also been diagnosed with a rare medical condition, congenital central hypoventilation syndrome PHOX2B mutation. Issa requires a BiPAP machine (iVAPS mode via Stella ventilator) at night and is entirely dependent on the ventilator when sleeping. Issa’s parents must monitor Issa closely during the night to ensure that there is no ventilator malfunction or disconnection. The ventilator is crucial to maintain breathing whenever Issa sleeps because breathing can stop during sleep as the usual safeguards to control breathing are impaired.

In letters dated 18 April 2024 and 26 February 2025, Dr Alanna Hare, Consultant in Respiratory Medicine at the Royal Brompton Hospital, stated that it was “imperative” that Issa remained within reach of both Chelsea and Westminster Hospital and the Royal Brompton Hospital for continued specialist medical care and support.

The Claimant himself has health problems in that he has been diagnosed with post-traumatic stress disorder. He has been attending the Woodfield Trauma Service for treatment. A statement from an assistant psychologist at that Trauma Service, dated 4 April 2025, states that “[a] number of [the Claimant’s] symptoms related to his PTSD have also worsened as a result of the council’s handling of his housing case, including his severe depression and suicidality”. An update was provided on 16 April 2025 emphasizing the urgency of the Service’s concern for the Claimant’s psychiatric health. It was noted that the Claimant had deteriorated further and that he was now unable to attend therapy or even leave his house.

The Claimant made a homeless application to the Defendant on 5 March 2024, having been served with a notice seeking possession under section 21 Housing Act 1988 by his private sector landlord.

Following extensive delays in dealing with Mr H’s application, resulting in the eventual acceptance of the housing duty, and the making of a possession order on the private accommodation in March 2025

On 19 May 2025 an offer of accommodation was made of accommodation outside the Borough at 27, Crewys Road, NW2 2BD. On 6 June 2025, Elise Wong, one of the Defendant’s occupational therapists, spoke to Dr Alanna Hare, the consultant treating Issa. Dr Hare explained that any accommodation provided to the Claimant should be a maximum of 45 minutes’ journey time from the Chelsea & Westminster Hospital. In the light of Dr Hare’s advice, the Defendant accepted that the accommodation at 27 Crewys Road was not suitable for the Claimant.

The claimant remains in the private accommodation and a warrant has been applied for by the landlord.

RBKH pleaded the difficulty in securing affordable accommodation, but there was no evidence put forward as to the steps it had and was taking to secure suitable accommodation beyond generalities (and no update after the hearing but before judgment).

The claimant sought a mandatory order that the claimant and household be provided with suitable accommodation within 14 days. The claimant highlighted RBKC’s commitment to the Ombudsman (LGSCO) on a complaint about the delays in dealing with Mr H’s application that RBKC would provide suitable temporary accommodation to the Claimant within one month of the Ombudsman’s final decision, and that decision was in March 2025.

It was agreed that the Court was bound by the formulation in R (Elkundi and others) v Birmingham CC (2022) EWCA Civ 601 (our note) that the s.193(2) duty is “an immediate, non-deferrable, unqualified duty to secure that suitable accommodation is available for occupation”.

RBKC resisted a mandatory order

Mr Peacock accepted at the outset of his oral submissions that the Defendant was in breach of the s.193(2) duty. Having done so, he argued that no purpose would be served by granting declaratory relief although he accepted that the court may well conclude that there was a need for the Claimant at least to be granted the remedy of a declaration.

Mr Peacock accepted that there were points in favour of the grant of a mandatory order. The Defendant accepted that the handling of the Claimant’s case was very far below what could reasonably be expected. The Defendant had been found guilty of maladministration by the Ombudsman. Mr Peacock repeated the apology that had been made in the pleadings. He accepted that the agreement with the Ombudsman that the Defendant would provide suitable accommodation within one month was a factor in favour of the grant of mandatory relief. Similarly, the Defendant accepted that the evidence showing an exacerbation of the Claimant’s psychiatric condition was a factor pointing to the grant of mandatory relief.

Mr Peacock submitted that there were a number of factors which nonetheless militated against the grant of a mandatory order. Although the Defendant accepted that the facts here indicated that it was a “particularly serious” case, it was relevant that the Claimant was currently in suitable accommodation (albeit accommodation from which he is due to be evicted).

The Defendant had not been in breach of the duty for a significant period of time: it was measured in months rather than years (as in Imam and Elkundi). He submitted that the Defendant had taken all reasonable steps to secure temporary accommodation. Mr Peacock disputed the Claimant’s reliance on the Public Sector Equality Duty as a factor that went to discretion. In Mr Peacock’s submission, that might be a factor in whether the Defendant had taken all reasonable steps. The priorities that the Defendant had set in relation to allocating temporary accommodation (set out above at paragraph 34) were compatible with the Defendant’s Public Sector Equality Duty.

The High Court made a declaration the RBKC was in breach of duty. While RBKC had accepted it was in breach, this was no reason to decline declaratory relief.

On a mandatory order that suitable accommodation be provided:

I accept that the length of time a local authority has been in breach of the s.193(2) duty can be a relevant factor. Mr Peacock has fairly pointed to the differences between the periods in Imam and Elkundi and the period of time here. There is a limit however to the utility of making direct comparisons between different cases as decisions of this nature are inherently fact-sensitive. Moreover, the section 193(2) duty is an immediate, non-deferrable, unqualified duty.

There is insufficient evidence before me to conclude that a mandatory order would serve no purpose as suitable temporary accommodation is likely to be provided shortly. In fact, both parties emphasised that the reference in Ms Peterkin’s second statement at paragraph 8 (referred to above at paragraph 44 of this judgment) offered no certainty that suitable accommodation would be found. As noted above, the position remains unchanged since Ms Peterkin’s second statement.

In my judgment, the Defendant has not sufficiently explained why a mandatory order should not be made to ensure that it complies with its duty. The evidence supplied by the Defendant has focused on the generic problems it faces in discharging its duty under s.193(2) of the 1996 Act. As to that evidence, it is relevant that the Defendant can subsidise rent payments above the local housing allowance rates in the private sector and can utilise its own housing stock. The Claimant’s housing needs are less complex than in other cases: for example, there is no requirement for a specially adapted property. What is required is simply three bedroomed accommodation within 45 minutes of the Chelsea & Westminster Hospital.

As I have noted above, there is a paucity of evidence addressing the steps that it has taken specifically in relation to the Claimant. Most importantly, the Defendant has entirely failed to address why it is now said to be impossible to comply with a mandatory order when it had agreed with the Ombudsman in March 2025 that it would provide suitable temporary accommodation within a month. The Defendant has been on notice of the possession proceedings throughout and as long ago as 30 April 2024 stated that the housing officer had been asked to request temporary accommodation “immediately” after a possession order was made. I accept Mr Nabi’s submission that the failure to address the Ombudsman’s decision is a significant lacuna in the Defendant’s evidence.

RBKC had not established that it had taken all reasonable steps, and so had not shown it would be impossible to comply with a mandatory order.

Time to comply was fact specific to each case. Here, the claimant’s proposal of 14 days was too short, but the defendant’s suggestion of 12 weeks was not appropriate. The defendant had committed to the Ombudsman to find suitable accommodation with in one month and that was the period that would be ordered.

The court granted

(a) A declaration that the Defendant has been in breach of its statutory duty under s.193(2) of the 1996 Act from 15 May 2025; and

(b) A mandatory order requiring the Defendant to provide the Claimant with suitable temporary accommodation within 45 minutes of the Chelsea and Westminster Hospital no later than one month from the date of the order giving effect to this judgment.

Comment

This is just the latest of a series of decisions after Imam, R (on the application of) v London Borough of Croydon (2023) UKSC 45 (our note) that confirm that general comments about the difficulty of securing temporary accommodation are not going to be sufficient for a local authority to avoid a mandatory order. There needs to be evidence of steps taken, of resources considered, and of the practical impossibility of securing suitable accommodation for the court not to make an order in view of the ‘immediate, unqualified duty’.