Landmark judgment on the main homeless duty: R (Elkundi) v Birmingham and R (Imam) v Croydon
Zia Nabi (for Mr Elkundi and others, together with Joseph Markus) and Martin Westgate QC and Sarah Steinhardt (for Ms Imam) successfully acted in these appeals, judgment on which was handed down today, 4 May 2022.
In this landmark decision the Court of Appeal unanimously held that the main housing duty owed to homeless persons under section 193(2) Housing Act 1996 is an immediate and unqualified duty to secure suitable accommodation, and that a mandatory order had wrongly been refused in Ms Imam’s case.
Birmingham City Council and the London Borough of Croydon both seek permission to appeal to the Supreme Court.
R (Elkundi, Ross, Ahmed, Al-Shameri) v Birmingham City Council
The Court of Appeal has unanimously dismissed Birmingham City Council’s appeal in which it argued that the main housing duty owed to homeless persons under section 193 (2) Housing Act 1996 is not an immediate and unqualified duty to secure accommodation but, rather, a duty to secure that accommodation is available within a reasonable period of time, the reasonableness of the period depending upon the circumstances of each case and what accommodation is available.
The Court held that:
- The main housing duty is non-deferrable and unqualified and is to secure that accommodation “is available for occupation”, not that accommodation will become available within a reasonable period of time.
- Suitability is a flexible concept. Different accommodation may be provided at different times to ensure that the duty is being performed and what is suitable may, therefore, evolve or change over time depending on all the circumstances.
- If a local authority decides that the accommodation that is currently being occupied is unsuitable, then it must provide other accommodation which is suitable.
- An applicant may only waive their right to be provided with suitable accommodation if they are placed in a position to give fully informed consent and if they subsequently change their mind, the authority must then secure that suitable accommodation is available for their occupation. On the facts, Mr Al-Shameri had not waived his right.
- Birmingham’s system to fulfil its duty under section 193(2) was unlawful because:
- it placed applicants who were owed the duty and whose current accommodation had already been determined to be unsuitable on a waiting list while they took a reasonable time to find alternative accommodation which was suitable.
- it failed to distinguish between persons who were in suitable and unsuitable accommodation
- it breached its obligations under the public sector equality duty because there was no evidence that Birmingham had had regard to the impact on a disabled person of the period of time spent on the waiting list for suitable accommodation.
- The Judge had not erred in granting a mandatory order in Mr. Ahmed’s case to secure accommodation in 12 weeks. The duty had been owed to him for 16 months. She had carefully assessed the impact of the lack of suitable accommodation on Mr Ahmed and his family and had determined that it was not unreasonably difficult for Birmingham to comply with a mandatory order.
R (Imam) v London Borough of Croydon
The Court of Appeal allowed Ms Imam’s appeal against the refusal to grant her a mandatory order to enforce Croydon’s admitted breach of section 193(2) HA 1996.
Ms Imam is a wheelchair user and full-time mum of 3 children. On 5 June 2015, Croydon had reached a decision on review which accepted that the temporary accommodation in which she and her children had been accommodated was unsuitable for them, but the time of the appeal hearing, Ms Imam had nonetheless remained there for some 7 ½ years. At first instance she was refused relief because, amongst other findings, she had not shown that the conditions in which she was living were having an extremely serious effect on her, or that the conditions were “intolerable” or that “enough was enough”.
Unanimously allowing her appeal, the court found:
- It was for Croydon to demonstrate reasons why an appropriate remedy such as a mandatory order should not be granted.
- The court is entitled to have regard to all the evidence before it and to reach a judgment on the impact of the unsuitable accommodation but it court should not lose sight of the fact that the accommodation had already been determined to be unsuitable. Once it has been determined that a person is homeless, and that their accommodation is not suitable the authority will already have taken into account general housing conditions in their area, the limits on their housing stock and limits on their resources. The issue of granting a mandatory order will only arise when the housing authority has decided that the individual’s current accommodation is not suitable even in the short term.
- The test for, or approach to, granting a mandatory order, is not one of whether it is intolerable for the individual to occupy the premises or whether enough is enough. Those formulations are unhelpful and do not reflect a minimum threshold that must be crossed before it is appropriate to grant a mandatory order. However, if the situation in a particular case has reached the level of intolerability, that may be a powerful indication that a mandatory order is called for.
- The approach is to consider whether the local housing authority has taken all reasonable steps to enforce the duty. If it has done so, and has not been able to secure suitable accommodation, that may be a good indication that it may not be appropriate to grant a mandatory order as it may not be possible to secure suitable accommodation within a specified time. A local housing authority can, however, be expected to demonstrate what steps it has taken and what the difficulties are. It is unlikely to be sufficient to refer generally to the demand for housing or the shortage of accommodation.
- In this case, the Deputy Judge had erred in two ways:
- First budgetary constraints are not relevant to whether a mandatory order is appropriate once a housing authority has accepted that a person is homeless and his current accommodation is unsuitable. While the limited number of suitable properties available may be relevant in assessing whether a local housing authority has done all it reasonably can, constraints on resources is not a reason for not complying with a duty imposed by Parliament.
- Secondly, the Deputy Judge erred in his analysis of the steps taken by Croydon to fulfil its duty. In this case, almost six years had passed and the duty was not being performed. In those circumstances, the local housing authority did need to provide evidence that it had taken all reasonable steps to secure suitable accommodation and either it had not been possible to secure it or that there were other reasons why, in this case, it would be inappropriate to grant a mandatory order.
Ms Imam’s case was remitted the case back to the High Court to determine if an order should be made.
The judgment is available here.
Thursday 12th May 2022 | 15:00-16:00
The Housing and Social Welfare Team will be holding a webinar on the 12th May to discuss the cases of R (Elkundi) v Birmingham and R (Imam) v Croydon, a landmark judgment on the main homeless duty, handed down on 4th May 2022. Counsel instructed will be speaking and will discuss what the court decided and what lessons we can learn for future cases.
Zia Nabi (for Mr Elkundi and others, together with Joseph Markus at GNC) instructed by Mike McIlvaney at The Community Law Partnership and Martin Westgate QC and Sarah Steinhardt (for Ms Imam) instructed by Polly Glynn at Deighton Pierce Glynn successfully acted in these appeals, judgment on which was handed down today, 4 May 2022.
Register your place here.