Court of Appeal hears appeals over nature of s.193(2) main housing duty

March 1, 2022

The Court of Appeal is this week (1-3 March) hearing Birmingham City Council’s appeal over a High Court ruling that its system for performing the main housing duty in s.193(2) Housing Act 1996 was unlawful.

Lord Justice Underhill, Vice President of the Court of Appeal - Civil Division, Lord Justice Peter Jackson and Lord Justice Lewis are also hearing an appeal by a disabled claimant over a ruling by a High Court judge that she was not entitled to a mandatory order requiring Croydon Council to provide her with suitable accommodation.

The background to the cases, as set out on the YouTube page for the live stream of the hearings, is below.

In the first case Birmingham is appealing the order of Mrs Justice Steyn in Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin).

In Elkundi the four claimants each applied to Birmingham for accommodation under the homelessness provisions contained in Part VII of the Housing Act 1996 (‘HA 1996′).

The council accepted that three of the claimants were owed the main housing duty under section 193(2). It had also accepted that it was subject to the same duty in the fourth claimant’s case, but due to developments during the course of the proceedings before Steyn J it contended that, in his case, the section 193(2) duty had been discharged.

Birmingham’s practice when dealing with the applications was to place applicants who were owed the main housing duty, and who were in unsuitable accommodation, on a waiting list, the Planned Move List (`PML’) and offering accommodation to those applicants in date order by reference to the date on which they were added to the list.

By her Order Mrs Justice Steyn held that:

s.193(2) of the Housing Act 1996 (`the main housing duty’) was an immediate, unqualified and non-deferrable duty to secure suitable accommodation;
Birmingham was operating an unlawful system for performance of the main housing duty by placing those eligible on the PML list, the PML list failed to distinguish persons in suitable and unsuitable accommodation, and the PML failed to meet the council’s obligations under the Equality Act 2010 s.149;
the defendant council had made decisions on statutory review in the cases of the first, second and third claimants that their accommodation was unsuitable within the meaning of Part 7 Housing Act 1996;
Birmingham was in breach of the main housing duty in respect of the second and third claimants;
the defendant council was in breach of the main housing duty in respect of the first claimant between 3 January 2020 and 12 March 2021;
the defendant was in breach of the main housing duty in respect of the fourth claimant between 27 April 2018 and 28 September 2020.

The case is being heard alongside an appeal by the claimant (C) in Imam, R (On the Application Of) v The London Borough of Croydon [2021] EWHC 739 over the order of Mathew Gullick QC dated 26 March 2021, by which he dismissed C’s claim on grounds 1 and 2 and made no order as to costs.

The background to this case is that C, a wheelchair user who is disabled within the meaning of s.6 of the Equality Act 2010, brought a claim for judicial review in respect of Croydon’s failure to provide suitable accommodation pursuant to a duty in s. 193(2) of the Housing Act 1996.

In 2014 C applied to the council for accommodation to be provided to her and Croydon allocated C a flat as temporary accommodation under Part 7 of the 1996 Act. C is on the waiting list for permanent accommodation to provided to her under Part 6 of the 1996 Act.

A number of concerns in relation to the suitability of the property were raised by C’s Occupational Therapist during a visit in 2015. Following this, the council wrote to C’s solicitors informing them that it was minded to decide that the property was suitable and stating their reasons.

In June 2015, the council accepted that the property was not suitable accommodation. It later informed C that she would be contacted directly when a suitable property became available.

In March 2016, C’s solicitors wrote to Croydon stating that no offer had been received. The council did not respond to this letter. However, it did then offer the property as permanent accommodation.

C’s solicitors wrote to the council asking whether this offer was being made in error as it had by this point already been determined that the property was unsuitable.

C’s solicitors did not receive replies to their letters. On 19 September 2016, C’s solicitors sent Croydon a Pre-Action Protocol letter setting out their proposed judicial review for breach of statutory duty (this was not proceeded with). A further judicial review claim was brought and permission to apply for judicial review was given on 19 May 2020.

In his ruling Judge Gullick said the issues raised by the grounds upon which the claim was brought were as follows:

i) Ground 1: What relief should be granted to the claimant in respect of the defendant's admitted breach of its statutory duty.

ii) Ground 2: Whether the defendant was in breach of the duty to make reasonable adjustments for the claimant as a disabled person, contrary to the relevant provisions of Equality Act.

iii) Ground 3: Whether the defendant had unlawfully failed to consider the claimant for Band 1 priority under his housing policy and/or a direct offer on a discretionary basis.

Judge Gullick QC rejected the claim that Croydon was in breach of the public sector equality duty, noting the claimant had received priority over non-disabled housing applicants.

He also said that although Croydon was in breach of its statutory duty, he would not make a mandatory order as he accepted there was “a spectrum of seriousness” in terms of possible breaches.

“Although I would not adopt [the] description of the property as being nine-tenths suitable for the claimant, I do accept that on the evidence before me, the claimant has not established that the conditions in which she is presently living are having an extremely serious effect on her, or that the situation is ‘intolerable’,” the judge said.

He also said that Croydon’s policies did not - as the claimant had argued - place disabled housing applicants at any substantial disadvantage.

The judge did find though that Croydon unlawfully failed to consider putting her into Band 1 of its priority system.

He said: “In my judgment, [Croydon] acted unlawfully in failing to take any decision in response to the two express requests made by the claimant that she should be moved into Band 1.

“[She] is, in my judgment, correct in her submission that the defendant was under an obligation, as a matter of public law, to consider and decide those requests. It did not do so.”