Court of Appeal issues judgment on nature of s.193(2) owed by local housing authorities

The Court of Appeal has handed down a significant ruling on the nature of the duty owed by local housing authorities to homeless persons under section 193(2) of the Housing Act 1966, which provides that a local housing authority “shall secure that accommodation is available for occupation by the applicant”.

The judgment in Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601 concerned appeals in cases involving Birmingham City Council and the London Borough of Croydon.

Lord Justice Lewis said that in the first case, Mrs Justice Steyn had held that the section 193(2) duty imposed an immediate, unqualified and non-deferrable duty on the local housing authority to secure that accommodation is available once it accepted that the applicant was homeless, eligible for assistance, had a priority need and was not intentionally homeless.

The appellant local housing authority, Birmingham, contended that Mrs Justice Steyn erred as the duty was 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 city council also contended that the judge erred in three other respects:

1. Mrs Justice Steyn erred in concluding that Birmingham was operating an unlawful system by placing homeless persons who are owed a duty under section 193(2) on a waiting list and allocating appropriate properties according to the length of time that they had been on the waiting list
2. The judge erred in granting a mandatory order requiring it to secure that accommodation was available for the third respondent, Mr Ahmed, within 12 weeks.
3. The judge erred in finding that the fourth respondent, Mr Al-Shameri, had not waived his right to accommodation in April 2018 and therefore erred in declaring that Birmingham was in breach of its duty in respect of  Mr Al-Shameri between 27 April 2018 and 28 September 2020.

Lord Justice Lewis said the sole issue in the second appeal concerned the circumstances in which a court may in the exercise of its discretion properly refuse a mandatory order to enforce a duty owed under section 193(2).

Croydon had accepted that it was in breach of its duty as it had failed to secure that suitable accommodation was available for occupation by the respondent, Mrs Imam.

Mr Matthew Gullick QC, sitting as a deputy judge of the High Court, declined to grant a mandatory order requiring Croydon to comply with its statutory duty.

Mrs Imam contended that it was wrong in principle for the Deputy Judge to refuse a mandatory order in the exercise of his discretion.

Dismissing the appeal in the Birmingham case, Lord Justice Lewis said: “The Judge correctly held that once a local housing authority accepts that a duty is owed under section 193(2), and that the applicant’s current accommodation is unsuitable, it is under an immediate and unqualified duty to secure that suitable accommodation is available. The duty is not a duty to secure that suitable accommodation is made available within a reasonable time.

“The conclusion that Birmingham was in breach of its section 193(2) duty in three of the cases in this appeal was the result of the fact that Birmingham had already accepted that the respondents’ current accommodation was unsuitable. The system operated by Birmingham of placing persons to whom the section 193(2) duty was owed on a waiting list until suitable accommodation became available was unlawful.”

Lord Justice Lewis said the judge was entitled to grant a mandatory order in the case of Mr Ahmed and to grant declarations that there had been breaches in the other cases. “The Judge was also entitled to find that, in the fourth case, Mr Al-Shameri had not waived his right to have suitable accommodation secured for him and his family.”

The Court of Appeal judge, with whom Lord Justice Peter Jackson and Lord Justice Underhill agreed, also allowed Mrs Imam’s appeal in the Croydon case “as the Deputy Judge wrongly had regard to budgetary constraints and wrongly approached the question of whether Croydon had taken all reasonable steps to ensure that it complied with its duty under section 193(2) such that it would be inappropriate to grant a mandatory order in the circumstances of the case”.

The matter in the Croydon case was remitted to the High Court for reconsideration.

Read Doughty Street Chambers' analysis of the case.