R (Aweys and Others) v Birmingham City Council

JurisdictionEngland & Wales
JudgeMr Justice COLLINS
Judgment Date26 January 2007
Neutral Citation[2007] EWHC 52 (Admin)
Docket NumberCase No: CO/4586; 0563; 4725; 4654; 7747; 6763; 4721/2006
CourtQueen's Bench Division (Administrative Court)
Date26 January 2007

[2007] EWHC 52 (Admin)





Mr Justice Collins

Case No: CO/4586; 0563; 4725; 4654; 7747; 6763; 4721/2006

R(Aweys & Others)
Birmingham City Council

Mr Zia Nabi (instructed by The Community Law Partnership) for the Claimants (Adam; Aweys; Mohamed;Sharif & Abdulle)

Mr Joshua Dubin(instructed by The Community Law Partnership) for the Claimant (Ali)

Mr Nicholas Nicol (instructed by The Community Law Partnership) for the Claimant (Omar)

Ms Catherine Rowlands (instructed by Birmingham City Council) for the Defendants

Mr Justice COLLINS

These seven claims were dealt with together because all concern the manner in which the defendant has dealt with the claimants' homelessness applications. In each case, sometimes after what has been submitted to have been an unlawful delay, the defendant has accepted that they were homeless, in priority need and that their homelessness was not intentional. Thus the full duty under Part VII of the Housing Act 1996 was owed to each claimant. They all claim that they have not been dealt with in accordance with the law. They complain that the method adopted by the defendant, whereby it has dealt with them by applying its allocation policy which is maintained under Part VI of the 1996 Act, was unlawful because the allocation policy was itself unlawful in that it was irrational in the manner in which it applied to those who were homeless. In addition, in one case (Mohamed: CO/4654/2006) it is said that a scheme applied by the defendant known as Home Options was unlawful. In addition, each claimant asserts that he or she has not been dealt with by the defendant in a lawful manner even if the allocation policy was not unlawful.


In one case (Abdulle: CO/4724/2006), Mitting J granted permission limited to the ground that the defendant had been in breach of its statutory duty in that it had failed to secure that the claimant was provided with suitable accommodation. He refused permission to challenge the defendant's allocation policy. In her case, there is a renewed application to be permitted to argue the general ground relating to the alleged unlawfulness of the defendants' allocation policy. In the cases of Ali (CO/0563/2006) and Mohamed (CO/4654/2006), permission was refused and the oral renewal applications are before me. All the other cases are applications for permission which have been ordered to be heard together since all (save Mohamed) raise the same point in relation to the Allocations Policy.


As I indicated in argument, I have decided to grant permission in all cases and the hearing of each is treated as the hearing of the substantive claim. Ms Rowlands submitted that Mohamed should not be heard since his case did not raise the same point as the others but dealt with a separate issue, namely Home Options. However, it seemed to me that the challenge in relation to that was not at all complicated and Ms Rowlands accepted that the defendant did not need to put any further evidence about it. Since the other issues raised in Mohamed were similar to those in the linked claims, it seemed sensible to deal with all and in the end Ms Rowlands very sensibly did not press her opposition.


Each claimant has a large family and so requires accommodation which has more than three bedrooms. Such accommodation is not readily available in Birmingham. The defendant is the largest local authority in the country and at any one time has some 19000 people waiting for housing and a further 17000 awaiting transfer. In the year ending 31 March 2006, there were 9576 homelessness applications, which is apparently about 20% of all applications made in England. There is a limited stock and inner city clearance programmes coupled with the exercise of rights to buy reduce what is available. The defendant has entered into agreements with registered social landlords so that 50% of their vacancies are made available to it and, so far as possible, individuals are given advice to try to help them to find privately rented accommodation or accommodation out of the defendant's area. In addition (and it is this aspect of its approach which has led to the challenges in many of these cases) the defendant tries to keep persons living in their own properties so that they do not have to apply for accommodation as homeless. This has been extended so that, even though the defendant may accept that because, for example, of chronic over-crowding, it is not reasonable to expect a family to continue to live in accommodation so that they must be regarded as homeless, they are required to remain in that situation waiting for suitable accommodation to become available. I shall have to consider other aspects of what the defendant has or has not done in the individual cases in due course.


I should add that in two cases (' Omar: CO/7747/2006') and ' Ali: CO/0563/2006') a breach of Article 8 of the European Convention on Human Rights has been raised. Counsel accepted that this did not give any added protection insofar as their judicial review claims were concerned but would, if established, found a claim for damages under the Human Rights Act 1998. In Sharif (CO/6763/2006) an offer of apparently suitable accommodation had been made and so that claim did not need to be pursued. I left open any argument about costs, but did not otherwise consider it.


I should set out the relevant statutory provisions. I start with Part VII of the Housing Act 1996 which deals (as amended by the Homelessness Act 2002) with homelessness. Section 175(1) provides:—

"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he –

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession …

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him continue to occupy."

There are thus two different types of homelessness. The first, which has been described as 'roofless', applies where the individual is without anywhere to live. The second, which results from s.175(3), has been described as 'homeless at home', and applies where the individual is in accommodation but cannot reasonably be expected to remain there. He has a roof over his head, but he cannot be expected to remain where he is. Section 176 provides that accommodation is only to be regarded as available if it is available for occupation by the individual together with his family and anyone else who might reasonably be expected to live with him.


Section 183 provides:—

(1) The following provisions of this Part apply where a person applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness.

And Section 184 states:—

"(1) if the local authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part."


It is apparent that the threshold for the duty of Councils to act under s.184 is a low one (cf: Mohamed v Manek & another (1995) 27 H.L.R. 439@449) since it arises if they have reason to believe the applicant may be homeless or threatened with homelessness. In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the Council not to believe that the applicant may be homeless or threatened with homelessness. Furthermore, no particular form of application is prescribed. This is not surprising since the provisions are dealing with people who are likely to be vulnerable and who cannot be expected to have obtained legal advice or to have an acquaintance with the statutory provisions. If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a Council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise because of s.175(3) even if there is no application based specifically on homelessness. Furthermore, there is no power to defer the inquiry which has to be carried out under s.184(1): see Robinson v London Borough of Hammersmith & Fulham [2006] EWCA Civ. 1122. In paragraph 36, Waller LJ said:—

"It also seems to me that it is clear that the authority is not entitled to postpone the taking of a decision simply to avoid a duty."

In Robinson, the applicant was nearly 18. If under 18, a full duty would automatically have applied. If the authority waited until she was over 18, there would be no such automatic duty. Thus it was in its interest to try to defer the inquiries until she was 18. However, provided its inquiries took only a reasonable time to carry out, if by then the situation had changed, the decision reached would properly be based on the circumstances then...

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