R (on the application of Imam) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Lord Sales,Lord Lloyd-Jones,Lord Leggatt,Lord Richards,Lord Burnett |
| Judgment Date | 28 November 2023 |
| Neutral Citation | [2023] UKSC 45 |
| Court | Supreme Court |
[2023] UKSC 45
Lord Lloyd-Jones
Lord Sales
Lord Leggatt
Lord Richards
Lord Burnett
Appellant
Kelvin Rutledge KC
Riccardo Calzavara
(Instructed by Browne Jacobson LLP (Birmingham))
Respondent
Martin Westgate KC
Sarah Steinhardt
(Instructed by Deighton Pierce Glynn (Bowling Green Lane))
Intervener (Crisis) (written submissions only)
Justin Bates
Harriet Wakeman
Barney McCay
(Instructed by Anthony Gold Solicitors LLP (London Bridge))
Heard on 3 and 4 May 2023
Lord Sales ( with whom Lord Lloyd-Jones, Lord Leggatt, Lord Richards and Lord Burnett agree):
This case concerns the approach which a court should adopt to granting a mandatory order as a remedy against a local housing authority which is in breach of its statutory duty under section 193(2) of the Housing Act 1996 (“the Act”) to ensure that suitable housing is available to a person who is eligible for assistance. The appellant housing authority (“Croydon”) admits that at the material time it was in breach of this duty owed to the respondent (“Ms Imam”), but contends that by reason of severe budgetary constraints and limits to the stock of properties available for housing assistance it ought not to be ordered to provide a property to Ms Imam, suitable for her complex needs, with immediate effect. Croydon says that at the very least it should be given a period of grace to allow it to find a suitable property out of its limited resources.
The central issue on the appeal is whether, and if so in what way, limits on the resources of a local housing authority should affect the exercise of a court's discretion as to the remedy to be granted when the authority is in breach of its duty under section 193(2) of the Act (“section 193(2)”).
Ms Imam is an applicant to Croydon for homelessness assistance pursuant to Part 7 of the Act and for allocation of accommodation under Part 6. She is a full-time wheelchair user and the mother of three children, currently aged 17, 16 and 12.
Ms Imam made her application to Croydon for assistance in about February 2014. Croydon assessed her application and accepted that it owed her a duty under section 193(2).
In September 2014 Croydon offered Ms Imam temporary accommodation comprising a three-bedroom house (“the Property”). Ms Imam visited the Property on 29 September and accepted it that day. She moved into the Property the following month. She and her children continue to reside there. Ms Imam's partner went to live with them there in 2017.
On 30 September 2014, however, Ms Imam requested a review of the suitability of the Property. On 5 June 2015 Croydon accepted that the Property was not suitable for Ms Imam, on the grounds that it lacked a level-access toilet on the first floor suitable for her to use during the night. However, Croydon did not offer Ms Imam alternative housing which was suitable.
Croydon accepts that from 5 June 2015 to date it has been in breach of its duty owed to Ms Imam under section 193(2) to provide her with suitable accommodation. Ms Imam maintains that the breach of this duty began at the commencement of her occupation of the Property. This point of difference as to the timing of the commencement of the breach of duty is not significant for present purposes and does not need to be resolved in this court.
On 5 March 2020 Ms Imam commenced the present claim for judicial review of Croydon's conduct in relation to her. She sought a mandatory order to compel Croydon to secure suitable accommodation for occupation by her and her household (ground 1); declaratory relief and damages for breach of the Equality Act 2010 (ground 2); and an order requiring Croydon to reassess her priority on its housing register (ground 3). The present appeal concerns the claim on ground 1 and whether a mandatory order should be made. Ms Imam did not file a witness statement in support of her claim.
Letters before claim written by Ms Imam's solicitors complained that the Property had not been sufficiently adapted for a wheelchair user, so that cupboards and windows were too high for her to use and the bathroom had not been fully adapted. An internal lift occupied much of Ms Imam's bedroom and the living room on the ground floor, which impeded her manoeuvrability. Access by wheelchair to her children's bedrooms was not possible. There was no upstairs toilet for Ms Imam to use at night, which was problematic because of difficulties to do with incontinence so that she suffered accidents which were humiliating and distressing.
Other than in relation to the absence of a level-access toilet on the first floor, the courts below proceeded on the footing that the Property is reasonably suited to meet Ms Imam's needs. It is adapted for wheelchair use, is of a size appropriate to accommodate her comparatively large family and is suitably located.
Croydon filed summary grounds of resistance in which it accepted that it was in breach of the duty owed to Ms Imam under section 193(2) but contended that mandatory relief should not be granted. Ms Imam was granted permission to proceed with her claim and Croydon then filed detailed grounds of resistance supported by a witness statement of Mr Simon Beasley, its Housing Operations Manager. Ms Imam filed a short witness statement in reply to say that, although she was offered two other properties, neither was suitable.
Mr Beasley explained that, like many local authorities, Croydon faces severe budgetary pressures. He summarised the position as follows:
“… the defendant [Croydon] operates two housing allocations schemes which, together, set out how we determine priorities and allocate accommodation to those in need of housing in the Borough. Ideally, we would of course like the scheme to operate so that applicants are provided with suitable accommodation shortly after the needs arises. Unfortunately, this simply is not always possible in practice. The Defendant faces significant difficulties as a result of acute budgetary pressures, very high demand for housing in the Borough and a limited pool of properties available to meet this demand. Funding from central government has decreased significantly over the years and the Defendant, like many authorities, is dealing with the difficult consequences of this. The projected budgetary overspend for 2020–21 is £67 million.
… the Defendant has continually considered the claimant [Ms Imam] for properties as they have become available but, unfortunately, there are many other housing applicants who are in either in higher priority need or who have the same priority need (under the Defendant's priority banding system) but have been waiting longer for suitable accommodation. While I can understand why the Claimant would argue that the Defendant should simply purchase a property for her, this isn't the silver bullet that she suggests that it is. This is because the Defendant would also need to purchase properties for everyone ahead of her on the Housing Register, otherwise it would be breaching its statutory duty to only allocate properties in accordance with its allocation schemes and the duties that it owes to other disabled applicants who are ahead of the Claimant on the Housing Register. The cost of this would be several million pounds, at a time when the Defendant is already tens of millions of pounds over budget for the current year. While the Defendant continues to explore the possibility of adapting her current property to make it suitable, in my view, it is unlikely to be practicable to carry out the level of adaptations that the Claimant has requested.
… The Defendant has a substantial pool of Council-owned properties. At the end of June 2020, the total number of Council-owned properties in the Borough stood at 13,433, but even this considerable supply of properties is far outweighed by the demand for housing in our local authority area. Some of these Council-owned properties are available to be allocated as temporary accommodation to homeless applicants under the Part 7 Scheme [in respect of duties arising under Part 7 of the Act] and some are available to be allocated as permanent accommodation under the Part 6 Scheme [in respect of duties arising under Part 6 of the Act]. The precise proportion of Council-owned properties available as temporary or permanent accommodation varies depending upon the length of the waiting lists for each type of accommodation, which are kept under constant review as the Defendant reviews its allocations against its target allocation policy and reallocates properties between temporary and permanent waiting lists and across the different priority bands throughout the year. However, as we were actively considering the Claimant for both temporary and permanent accommodation under both the Part 6 and Part 7 Schemes, the Claimant would have been considered for all Council-owned properties that have become available since June 2015.”
Despite this, Croydon had been unable to find a suitable property for Ms Imam and had therefore left her to be accommodated in the Property. It was assessed that it was not cost-effective to adapt the Property to make it suitable for Ms Imam's needs.
The claim was heard by a deputy High Court judge, Mr Mathew Gullick KC (“the judge”), who allowed it in part on ground 3 but dismissed it on grounds 1 and 2 ( [2021] EWHC 739 (Admin); [2021] HLR 44).
The Court of Appeal granted Ms Imam permission to appeal on ground 1, but refused Ms Imam permission to appeal on ground 2 and refused Croydon permission to appeal on ground 3. Ms Imam's appeal was directed to be heard with the appeal in another housing case, R (Elkundi) v Birmingham City Council [2021] EWHC 1024 (Admin); [2021] 1 WLR 4031...
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