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High Court judge says system of city council for accommodating homeless people is unlawful

Birmingham City Council’s system for allocating accommodation to homeless people has been declared unlawful by the High Court.

In Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin) Mrs Justice Steyn ruled that Birmingham should not leave people in unsuitable accommodation while it sought suitable places within a ‘reasonable time’.

She also said the system had wrongly put people on the list in the order in which they applied without distinguishing between their relative needs.

The homeless duty under section 193(2) of the Housing Act 1996 “is unqualified, immediate and non-deferrable”, the judge ruled.

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CLP Solicitors, which represented the claimants, said: “These families and many others in a similar position have suffered as a result of the unlawful practice of the council, the effect of which is that many homeless applicants are left in unsuitable accommodation, sometimes in appalling conditions, for considerable periods of time, despite an acknowledgment on the part of the council that they are owed the main housing duty under the homeless legislation.”

Claimants Abdelmotalib Elkundi, Roberta Ross, Cali Haaji Ahmed and Abdulwareth Al-Shameri each applied to Birmingham for accommodation under Part VII of the Housing Act 1996.

They were represented in court by barristers Zia Nabi of Doughty Street Chambers and Joseph Markus of Garden Court North.

Steyn J was asked to decide on the lawfulness of the council’s actions according to the individual circumstances of each claimant but also to rule on whether the council operated an unlawful system for the performance of its duty under section 193(2) of the Act.

She said Birmingham had acted on the basis that an applicant owed the main housing duty could be left in unsuitable accommodation while the council took what it judged a reasonable time to secure suitable accommodation and do this without it breaching section 193(2).

“I have concluded that the council has misunderstood the nature of the duty under section 193(2),” Steyn J said.

“In my judgment, this misunderstanding of the nature of the duty has resulted in the council operating an unlawful system for the performance of its duty under section 193(2).”

There was no objection to the council maintaining a spreadsheet of those for whom in the longer term needed alternative suitable accommodation.

But many of those on this ‘planned move list’ - including Mr Elkundi and Mr Ahmed - were in unsuitable accommodation.

Syten J said: “While I recognise the grave difficulties the council faces in finding accommodation for the homeless, putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.”

She said the list was operated in order of the date joined, which was irrational as a family in greater need might be further down the queue than one that joined earlier.

The date-based queuing system also failed to recognise protected characteristics, such as disability in the case of Mr Elkundi or two of Mr Ahmed's children.

Even if the queue were based on when the applicant made a homeless application, rather than the date of joining, “the system would still operate irrationally” she said .

This was because those whose changed circumstance suddenly made their accommodation unsuitable could through longer residence be higher up the list than a family in greater need.

The judge said the system would remain irrational even if she was wrong and the council could leave people in unsuitable accommodation for a ‘reasonable period’, as no thought went into deciding what period was reasonable in individual cases.

She noted: “The placement in the queue takes no account of the fact that time spent in unsuitable accommodation may be worse in some cases than in others.”

Steyn J granted a declaration that the duty under section 193(2) to secure suitable accommodation for an applicant to whom the duty is owed “is unqualified, immediate and non-deferrable” and that Birmingham’s waiting list system was unlawful.

The BBC has reported that Birmingham intends to appeal the judgement. The council has been contacted for comment.

Mark Smulian

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