R (Griffiths-Fowell) v Birmingham City Council [2026] EWCA Civ 920

This Court of Appeal decision deals with the circumstances in which the main housing duty can be ended, and whether accommodation offered must be suitable for the main housing duty to be discharged by s.193(6)(d) HA 1996 (i.e. because the person has voluntarily ceased to occupy as his only or principal home accommodation which has been made available to him).

Facts

Mrs Griffiths-Fowell was a disabled person who sought homeless assistance from Birmingham City Council in August 2022. She lived with her brother who was severely disabled as he had cerebral palsy, was paralysed from the waist down and required the use of a wheelchair, and was affected by schizophrenia and bipolar disorder.

Birmingham accepted that it owed the s.193(2) duty and initially housed them in B&B accommodation, before informing Mrs Griffiths-Fowell that a duty was no longer owed because she did not have a ‘local connection’ to Birmingham. This led to judicial review proceedings being commenced in March 2024, challenging the refusal to make accommodation available to them, following which Birmingham provided accommodation at a Travelodge. Birmingham then, again, sought to make a local connection referral to Manchester and told the pair to leave the hotel. Following the grant of urgent interim relief, Birmingham retracted the referral and accepted that it owed a duty under s.193(2).

Birmingham offered temporary accommodation at Langdon Walk on 31 July 2024, which was accepted but a review of its suitability was sought. Birmingham accepted in October 2024 that the property was unsuitable, as it lacked the necessary adaptations for the brother’s disabilities (he could not access the bathroom or toilet in the flat). Pre-action correspondence then followed. A second judicial review claim was brought in April 2025, concerning the breach of the main housing duty and the failure to secure suitable accommodation.

In May 2025, Birmingham offered temporary accommodation at Holden Close, which the pair accepted and moved into. On 4 June 2025, Birmingham accepted that the toilet was inaccessible and the stairlift was unsuitable. As the bedrooms and bathrooms were upstairs, Birmingham placed a commode on the ground floor and a bed in the living room. It stated that a lift would be installed, which was estimated to take around four weeks.

A contested hearing of the judicial review claim proceeded on 25 June 2025. Birmingham had not filed summary grounds of defence. HHJ Williams granted permission to apply for judicial review and made an interim mandatory order requiring the provision of suitable accommodation by 16 July 2025.

On 16 July 2025, Birmingham (again) offered accommodation at Langdon Walk, considering it suitable (even though it had previously accepted this property was unsuitable). Mrs Griffiths-Fowell applied to commit Birmingham for contempt for failing to comply with the interim mandatory order. Birmingham then offered hotel accommodation until the works at Holden Close were completed, which it indicated would be at the end of July 2025.

At the end of July 2025, the applicant’s brother was admitted to hospital for self-harming, and Mrs Griffiths-Fowell was unable to care for him due to a decline in her own mental health. She signed a licence agreement to occupy a room in supported accommodation, which she said was for a few days’ respite, while her brother returned to Holden Close. Birmingham responded by purporting to discharge the main housing duty to the applicant under s.193(6)(d) HA 1996 as she had voluntarily ceased to occupy Holden Close as her principal home. The applicant in fact returned to Holden Close after a few nights in the supported accommodation.

High Court decision

The substantive judicial review hearing proceeded before HHJ Rawlings on 8 October 2025, in which he granted a declaration that Birmingham was and remained in breach of the main housing duty and the interim mandatory order was made final. It was decided that:

1. The temporary accommodation and hotel had been unsuitable,
2. The main housing duty had not ended pursuant to s.193(6)(d), because Mrs Griffiths-Fowell had not voluntarily ceased to occupy the accommodation as her only or principal home and in any event the accommodation to which s.193(6)(d) refers must be suitable, and
3. Judicial review was an available remedy notwithstanding the statutory review and appeals process.

Birmingham appealed to the Court of Appeal on six grounds, which concerned whether: there was an adequate alternative remedy (grounds 1 and 5); the construction of s.193(6)(d) and whether it requires accommodation made available to be suitable (grounds 2 and 4); and whether the judge had failed to apply public law principles (grounds 3 and 6).

Court of Appeal

The Court of Appeal dismissed the appeal on all grounds.

It first considered whether the appeal had become academic, as the applicant no longer sought accommodation with her brother and was content for the mandatory order to be discharged. However, because the declaration made by the High Court remained in force and Birmingham argued that it should not have been made, there remained a live dispute and the matter had not become academic.

As to whether there was an alternative remedy which should have been pursued, it was noted that a claimant who has an alternative remedy must show exceptional circumstances to justify bringing judicial review proceedings. HHJ Rawlings’ conclusion that there were exceptional circumstances could not be impugned on appeal, in view of the highly unusual circumstances of the case. However, the Court of Appeal cautioned that the issue should have been raised at the outset by both parties.

It was rejected that the High Court had failed to apply public law principles, reading the judgment as a whole. Even if that was wrong, the judge would have reached the same conclusion in any event.

Construction of s.193(6)(d)

On the construction of s.193(6)(d) (ending the duty due to ceasing to occupy), Birmingham argued that this provision contained no requirement that the accommodation ‘made available’ to an applicant must be suitable. The Court considered the context of Part 7 HA 1996, which includes several references to accommodation being ‘made available’ for an applicant’s occupation. Section 206 ‘interlocks’ with local authorities’ obligations to secure that accommodation is available for applicants, such that:

107. […] an authority may only discharge its housing functions under Part 7 by securing that accommodation is made available to an applicant which is suitable. If the accommodation is unsuitable the relevant function, including any duty, is not discharged.

[…]

109. Thus, read properly in context, s.193(6)(d) applies to a case where a person voluntarily ceases to occupy as his only or principal home accommodation which has been made available to him in accordance with s.206, that is accommodation which is “suitable” for him. But if that accommodation is not suitable then it has not been made available in accordance with s.206 and the duty under s.193(2) is not discharged by virtue of s.193(6)(d).

This accords with other provisions in s.193 concerning how the main housing duty is brought to an end, including the provisions concerning the refusal of an offer of accommodation which the authority considers to be suitable (s.193(5)) and refusal of offers of other types of accommodation, subject to the resolution of suitability (ss.193(7) and (7AA)). Similarly, the duty ceases when the applicant accepts an offer made under Part 6 or in the private sector (ss.193(6)(c), (cc) and (7AA)), ‘which, it may reasonably be supposed, the applicant considers suitable’ (§112).

The Court was unimpressed by the suggestion that its interpretation of s.193(6)(d) would have unreasonable consequences: for instance, that a person may leave accommodation made available in Birmingham and move to Manchester. Such a person would be unlikely to seek to enforce the first authority’s duties under s.193(2), is unlikely to get discretionary relief in respect of the same, and in any event the risk of the authority seeking to escape its duties by offering unsuitable accommodation had ‘far greater significance’ (§113).

Birmingham’s appeal therefore failed.

Thoughts

This judgment provides helpful clarification on the cross-cutting nature of s.206 suitability requirements in circumstances where a person could be considered to have ceased to occupy accommodation made available to them. The Court was alive to the practical consequences of accepting Birmingham’s interpretation of s.193(6)(d), noting that if the accommodation offered does not have to be suitable, then that would risk authorities being able to escape their obligations under the main housing duty by simply offering unsuitable accommodation to homeless applicants, which they then leave.

As an aside, it is notable that Birmingham repeatedly offered unsuitable accommodation which lacked the necessary disability adaptations (including an offer of the same unsuitable property twice). One may wonder whether Birmingham’s housing needs assessment was adequate and included sufficient appraisal of what accommodation would be suitable for the household, per s.189A(2)(b) HA 1996, as the nature of the necessary adjustments must have been foreseeable in advance.