Housing has been in the news quite a bit over the last few weeks. We have seen the inclusion in the Queen’s Speech of the much-anticipated and long-delayed Social Housing Regulation Bill and Renters’ Reform Bill, aimed at increasing regulatory oversight and improving standards in the social and private rented sectors. The Prime Minister has announced that he is once again considering extending the controversial Right to Buy to England’s two million housing association tenants. Meanwhile, in an interview on Thursday morning, the Levelling Up Secretary, Michael Gove refused  to recommit the Government to its 300,000 annual housebuilding target. But amid all the sound and fury, an important judgment was handed down by the Court of Appeal on 4 May in the joined cases of R (Elkundi) v Birmingham City Council and R (Imam) v London Borough of Croydon [2022] EWCA Civ 601, which could have far-reaching implications for local authorities and homeless households across the country.

The two appeals concerned the interpretation and application of s.193(2) Housing Act 1996, known as the ‘main housing duty’, which states that, where an applicant is unintentionally homeless and in priority need, “unless the authority refer the application to another local housing authority, they shall secure that accommodation is available for occupation by the applicant.” Both appeals raised important questions around the extent of this duty and the circumstances in which a local housing authority might be said to have discharged it. The initial claimants all belonged to households which were trapped in unsuitable accommodation at the time the claims were brought, either through overcrowding or a lack of adaptation to meet the needs of disabled family members or both. 

In the first appeal in Elkundi, the Judge in the lower court, Mrs Justice Steyn, had held that s.193(2) imposed an “immediate, unqualified and non-deferrable duty” on a local authority to secure accommodation for a homeless applicant [2]. The local authority, Birmingham City Council, appealed on the basis that this was a misreading of the statutory provision. It contended that it was only under a duty to secure that accommodation be made available within a reasonable period of time, the reasonableness of the period being dependent on the circumstances.

Steyn J also held that Birmingham City Council’s misunderstanding of the nature of its duty under s.193(2) rendered the operation of its system for housing homeless applicants in unsuitable accommodation unlawful, since it wrongly considered it had a reasonable time in which to secure them suitable accommodation and could therefore comply with its duty by temporarily leaving them in unsuitable accommodation [61]. She issued a mandatory order requiring Birmingham to secure accommodation for one of the five initial claimants, Mr Ahmed, within 12 weeks and indicated that she would have done the same for Mr Elkundi, had he not already been offered suitable accommodation by the time the case was heard [62–63]. The local authority appealed on four further grounds, relating to the lawfulness of its system for housing homeless applicants and the Judge’s reasons for granting relief to specific claimants. These are set out in the judgment of the Court of Appeal at [70] and summarised at [3], and the conclusions of Lewis LJ on the issues they raise are set out at [109–123]. The main issues raised by the further grounds of appeal were whether Birmingham was operating an unlawful system for housing homeless applicants and whether it is possible for an individual to waive their right to suitable accommodation, once that right has been established.

In the second appeal, the Court considered the circumstances in which mandatory relief might be refused by the courts once a duty to house a homeless applicant in suitable accommodation has been established. The initial claimant, Ms Imam, appealed against the refusal by the Deputy Judge in the court below to grant a mandatory order compelling Croydon Borough Council to comply with its statutory duty under s.193(2) in circumstances where it had already accepted it was in breach of it. The sole ground of appeal here was that this refusal constituted an error in principle.  

The extent of the main housing duty

The primary issue upon which the Court had to rule in the first appeal was the extent of the main housing duty. The Court of Appeal unanimously upheld the lower court’s formulation of the duty under s.193(2) as immediate, unqualified and non-deferrable. Speaking at a webinar hosted by Doughty Street Chambers, Zia Nabi, who acted for Mr Elkundi and the other respondents in the first appeal, noted that this judgment effectively reinforces the orthodox interpretation of the statutory provision.[1] Indeed, the Court apparently did not consider this to be an especially complicated or lengthy point. The case advanced by the local authority, that the use of the word “shall” in s.193(2) indicated that “Parliament intended that the authority would make arrangements for the provision of accommodation in the future” [72], would have constituted a radical departure from the existing understanding of the main housing duty had it been accepted. In this context, it is unsurprising that the Court instead preferred to interpret the word “shall” to mean “must” and to refer to an immediate obligation to secure suitable accommodation for eligible applicants, rather than one to be fulfilled in the future [77].

What does this mean for local housing authorities facing major financial challenges or a severe shortage of appropriate housing stock in which to house homeless applicants, especially disabled applicants who require specifically adapted homes to be able to enjoy a good quality of life? Does the immediate and unqualified nature of the main housing duty mean that such factors cannot be taken into consideration by councils or the courts? Well, not exactly. In paragraph 170 of her judgment in the lower court, Steyn J held that:

Interpreting the duty as unqualified does not mean that the circumstances in which the local housing authority is seeking to perform its duty are relegated to be considered only at the relief stage. First, they are taken into account in determining whether a person is homeless under section 175(3) … Second, the flexible concept of suitability imports considerations such as the length of time an applicant has been in a particular type of accommodation and the dearth of availability of the type of accommodation the applicant requires in the longer term.

In his leading judgment in the Court of Appeal, Lewis LJ endorsed this notion of suitability as a flexible concept, which may be influenced by the resources available to the local housing authority and the circumstances of the individual case. Thus, a dearth of alternative accommodation might lead a council to conclude that an applicant’s current accommodation is suitable for continued occupation on a temporary basis, even if it would be unsuitable for them to occupy in the long term. Lewis LJ further clarified that it may sometimes be appropriate and necessary for a local authority to provide an applicant with different accommodation at different times. Permanent accommodation suitable for long-term occupation need not be secured immediately in order to fulfil the duty, though it should be the ultimate goal [81–82]. Where a local housing authority considers that the accommodation currently being occupied is suitable in the short or medium term, but unsuitable in the longer term, they should clearly state this conclusion in their decision letters to homeless applicants [83].

However, once a local authority has accepted that accommodation is unsuitable, it must secure suitable accommodation for the applicant right away. It is not enough to place them on a waiting list for suitable accommodation somewhere down the line. When a decision on unsuitability is reached, a local authority will be in breach of its duty for as long as the applicant remains in their current unsuitable accommodation [83].

The Court declined to rule on whether a local authority can change its mind over whether accommodation is suitable, having initially found it to be unsuitable (dealt with in the judgment as ‘the fourth issue’ [120–123]). Steyn J had expressed the view, obiter, that such a reversal of an initial decision by a local authority would be unlawful. The Court of Appeal judgment noted that Lewis LJ “would not want it to be assumed that the obiter dicta of the Judge are correct” but indicated that this point should be decided in a future case where it actually arises on the facts [121].

Was Birmingham’s system unlawful?

The second issue upon which the Court ruled was the lawfulness or otherwise of Birmingham’s system for housing homeless applicants. Social housing in Birmingham has been at the centre of a number of controversies in recent years, particularly with regard to the level of regulation in the exempt accommodation sector. The council also has an exceptionally long housing waiting list and very few homes available which are suitable for large families or properly adapted for occupation by disabled people. Despite, or perhaps because of, these challenging circumstances, Birmingham lacks a written policy explaining how properties are allocated to homeless persons under Part VII Housing Act 1996 [47]. Neither had it carried out equality impact assessments to demonstrate that it had had regard to the impact of its allocation system on disabled applicants [114]. While neither a written allocation policy nor equality impact assessments are mandatory, both are good practice.

In essence, the system being operated by Birmingham in respect of applicants to whom the main housing duty was owed was to place them on a waiting list known as the ‘Planned Move List’ (PML), along with applicants in “apparent priority need” to whom an interim duty was owed under s.188 Housing Act 1996, and to match them with suitably-sized properties as they became available, according to the length of time they had been on the list [46, 109]. The Court of Appeal upheld the decision of the lower court that this system was unlawful, in that it failed to distinguish between people living in accommodation which was currently unsuitable and those living in accommodation which was suitable in the short or medium term but would become unsuitable in the long term [113]. Moreover, the council was unable to evidence that it had had due regard to its duty under s.149 Equality Act 2010 to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share the protected characteristic of disability and those who do not. [114]

Can the right to suitable accommodation be waived?

The third issue was whether the right to suitable accommodation can be waived, once a local authority has accepted that it owes a duty to an applicant. This point arose because one of the initial claimants in Elkundi, Mr Al-Shameri, had indicated that he preferred to stay in his current accommodation, where his wife had an assured tenancy, while Birmingham looked for suitable accommodation for him. The question was whether this constituted a waiver of his right to suitable accommodation.

The Court dealt with this point fairly briefly. It held that the right can be waived, but only with informed consent of the applicant, who always has the right to change their mind [117]. Lewis LJ recognised that there may be circumstances where a person prefers to remain in their current accommodation until suitable long-term accommodation can be secured for them, especially if the duty owed is an interim one under s.188, if the alternative accommodation would be very temporary (for example bed and breakfast accommodation), and/or if they would have to give up a secure long-term tenancy in order to move into uncertain interim accommodation [116]. It is therefore vital that local authorities take steps to properly ascertain applicants’ wishes and keep them fully informed of their rights and of the outcome if they refuse the offer of suitable accommodation.

Can relief be withheld where the main housing duty is breached?

The fifth issue and the main substance of the second appeal concerned the proper approach of the court to the grant of a mandatory order to compel a local housing authority to secure suitable accommodation for a homeless applicant, once a breach of duty has been established. Ms Imam appealed against the refusal of the Deputy Judge to grant an order mandating that Croydon Council secure suitable accommodation for her, while Birmingham appealed against the grant of a mandatory order on behalf of Mr Ahmed.

In the case of Ms Imam, the Deputy Judge had held that Croydon were doing all they reasonably could to secure suitable accommodation for her, within the context of the general shortage of accommodation in the area and other applicants’ greater levels of need and longer periods waiting for suitable accommodation [67]. He noted in particular that Croydon’s resources were finite. Its estimated budgetary overspend in the current year was £67 million, and indeed readers can hardly fail to have heard about the borough’s financial crisis, which took it to the brink of bankruptcy and recently resulted in its Labour administration losing overall control of the council and the mayoral race to the Conservative candidate.

On appeal, the Claimant submitted that once a local housing authority has accepted that it has a duty, a failure to discharge it is an affront to rule of law and relief must therefore be granted [125]. Croydon stressed that a mandatory order is a discretionary remedy and submitted that the Deputy Judge was entitled to take into account the factors that he did, when deciding whether to grant relief [127].

At the Doughty Street webinar, Martin Westgate QC, who acted for Ms Imam, suggested that the Deputy Judge had incorrectly imported a purported legal test of “intolerability” from Baroness Hale’s judgment in Ali v Birmingham City Council [2009] UKHL 36, [2009]; 1 W.L.R. 1506, even though such a test does not actually exist. The mandatory order had been refused on the basis that Ms Imam had failed to evidence that the conditions in which she was living were having an extremely serious effect on her, or that they were “intolerable” or that “enough was enough” [67]. This was an incorrect approach for two reasons: first, because “intolerability” is not a legal test, and second, because the burden is on the authority to show why an order should not be made once breach is established, rather than on claimant to show why it should be.

The correct approach, per Lewis LJ, was to consider whether the local housing authority has taken “all reasonable steps” to perform the duty [132-134]. Although the judgment does not frame this in terms of a strict legal test, it is the approach taken by the Court in relation to both the Birmingham and Croydon appeals. Breaches of duty under s.193(2) are on a scale of seriousness, and the more serious and significant the breach, the more detailed evidence the local authority will need to provide to demonstrate that it has taken all reasonable steps to remedy the breach and secure suitable accommodation for the applicant. “References to the general difficulties facing housing authorities, or the lack of availability of suitable properties”, without specific details on the number and type of properties available and why they cannot be used, will most likely be insufficient [132]. In both of the present cases, the Court of Appeal held that the local authorities had failed to adduce sufficient evidence to demonstrate that they had taken all reasonable steps to remedy the breaches. Thus a mandatory order was correctly granted in the case of Mr Ahmed and ought to have been granted in the case of Ms Imam [142, 150].

The Court also held that the Deputy Judge in Imam had erred in taking into account budgetary constraints when considering whether a mandatory order was appropriate once the housing authority had accepted that Ms Imam was homeless and her current accommodation was unsuitable, since the decision on unsuitability had already taken into account budgetary considerations [141]. To consider them again at the relief stage would therefore introduce element of double counting. The courts are entitled to take into account a wide range of factors when deciding whether to exercise their discretion to provide mandatory relief, including but not limited to the extent of the unsuitability, the length of time the claimant has been waiting and the impact on their life, the likelihood of compliance in the near future, the risk of unfairness to other applicants, and any policy on the part of the local authority not to use its Part VI housing stock for Part VII purposes [141–144], but general budgetary constraints do not form part of this list.

In some respects, the points dealt with in these appeals seem self-explanatory. The value of this judgment lies not in moving the law on in any dramatic way but in clarifying the expectations on local authorities. The fact that both Birmingham and Croydon were held not to have taken all reasonable steps to house the claimants in suitable accommodation, despite the manifest financial and administrative challenges faced by both in addressing unmet housing need within their local authority areas, demonstrates that the hurdle for avoiding mandatory relief when s.193(2) is breached is very high. Local authorities will need to consider this carefully when assessing suitability and allocating resources to housing applicants once a duty has been established. Clear communication with applicants and careful record keeping will also help them when it comes to demonstrating compliance with their s.193(2) duty. The Court of Appeal refused Birmingham permission to appeal. They may yet apply to the Supreme Court for permission but given the unanimous, clear-cut and forceful nature of this judgment, they seem rather unlikely to succeed. 

What I’ve been up to recently…

I hope that readers will forgive the radio silence from your Green and Pleasant bloggers during the month of April. I was preparing for my final Bar exams at the end of last month, while Sam was completing his dissertation. With exams now over, I am very much looking forward to a planned cycle touring holiday to the Outer Hebrides at the beginning of June and desperately hoping for clement weather.

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[1] Readers can find further details about the webinar here and can request a copy of the transcript by emailing events@doughtystreet.co.uk.