The Queen (on the Application of Abdelmotalib Elkundi) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 23 April 2021 |
| Neutral Citation | [2021] EWHC 1024 (Admin) |
| Date | 23 April 2021 |
| Docket Number | Case No: CO/716/2020 CO/4413/2020 CO/3687/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1024 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/716/2020
CO/4291/2020
CO/4413/2020
CO/3687/2020
Zia Nabi and Joseph Markus (instructed by Community Law Partnership) for the Claimants
Jonathan Manning, Annette Cafferkey, Stephanie Lovegrove and Annabel Heath (instructed by Birmingham City Council) for the Defendant
Hearing dates: 9 – 12 March 2021
Approved Judgment
A. Introduction
The four claimants have each applied to Birmingham City Council (“the Council”) for accommodation under the homelessness provisions contained in Part VII of the Housing Act 1996 (“HA 1996”). The Council accepts that Mr Elkundi, Mr Ahmed and Mrs Ross are owed the main housing duty under section 193(2). The Council had also accepted that it was subject to the same duty in Mr Al-Shameri's case, but due to developments during the course of the proceedings the Council contends that, in his case, the section 193(2) duty has been discharged.
In Elkundi, permission was granted on appeal by Andrews LJ, by an order dated 3 November 2020. Saini J granted permission in Ross and Ahmed by orders dated 6 January 2021. HHJ Worster granted permission in Al-Shameri by order dated 7 January 2021.
Each of the claimants allege the Council is in breach of its duty to them under section 193(2) to secure suitable accommodation is available for their occupation ( Ground 1). This is the sole ground of challenge in Elkundi and Ross.
In Ahmed, the claimant has permission to pursue the following additional ground ( Ground 2):
“The Defendant has adopted an unlawful informal system whereby it will accept that accommodation is unsuitable within the meaning of sections 206(1) and 210 HA 1996 but then go on to say that the accommodation is not unreasonable for continued occupation, over an inherently uncertain timescale, until alternative accommodation can be provided (‘Ground 2’). The Claimant accordingly seeks a declaration that the Defendant is operating an unlawful system for the performance of its duty under section 193(2) HA 1996.”
In amended grounds filed and served with the permission of HHJ Worster granted on 7 January 2021, Mr Al-Shameri also seeks to pursue Ground 2. In his case, Ground 2 has proceeded as a rolled up hearing, pursuant to Morris J's order, and so a question arises as to whether he should be granted permission.
A further ground raised in Al-Shameri (in the original statement of grounds) is that the Council has acted in breach of the claimant's legitimate expectation, arising from the Council's letter of 27 April 2018, that he would be made an offer of suitable accommodation ( Ground 3).
By his orders of 6 January 2021, Saini J made directions for Ross and Ahmed to be heard together in the week commencing 15 February 2021. On 21 January 2021, I made an order that Elkundi should be heard together with Ross and Ahmed at the hearing which was listed on 16 February 2021, with an increased time estimate. On 15 February 2021, Morris J vacated the hearing on 16 and 17 February, directed that Al-Shameri should be heard with Elkundi, Ahmed and Ross, and re-listed the hearing for four days from 9–12 March 2021.
The hearing took place using Microsoft Teams, in accordance with arrangements adopted in consequence of the COVID-19 pandemic. I heard oral submissions on behalf of the claimants from Mr Zia Nabi on all issues, save for relief in Mrs Ross's case which was addressed by Mr Joseph Markus. On behalf of the Council, Ms Annette Cafferkey addressed the nature of the section 193(2) duty, Mr Manning addressed the practice and policy issues, and I heard oral submissions on the case-specific issues in Ahmed and Al-Shameri from Mr Manning, in Ross from Ms Cafferkey and in Elkundi from Ms Stephanie Lovegrove. I am very grateful to all Counsel for the assistance provided to me in their skeleton arguments and oral submissions.
I have considered all the evidence and arguments put before me when reaching my conclusions, although it is impossible (even in a judgment of this length) to do more than summarise the matters I consider to be most material to my decisions. Unless otherwise stated, all references in this judgment to statutory provisions are references to the Housing Act 1996.
B. The issues
The issues to which these grounds, and the parties' submissions, give rise are these:
In all four cases
(1) What is the nature of the main housing duty under section 193(2)? Is it, as the claimants contend, an immediate, unqualified and non-deferrable duty to secure suitable temporary accommodation? Or is it, as the Council contends, a duty to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of the period depending on the circumstances of each case and on what accommodation is available? This gives rise to a sub-issue: should this court follow R (M) v Newham London Borough Council [2020] EWHC 327 (Admin) (“ M v Newham”)? The claimants contend the analysis of the nature of the main housing duty in M v Newham is correct and, in any event, applying Willers v Joyce (No.2) [2016] UKSC 44 [2018] AC 843 (“ Willers v Joyce (No.2)”) at [9], there is no powerful reason not to follow it. Whereas the Council contends M v Newham is wrong and should not be followed.
Elkundi, Ahmed and Ross
(2) In Elkundi, Ahmed and Ross, did the Council decide that the claimant's accommodation was unsuitable? The Council made statutory review decisions on the claimants' requests for a review of the suitability of their temporary accommodation. These claimants contend the Council decided, in clear terms, that their accommodation was unsuitable and the Council is not permitted to adduce evidence to seek to go behind those decisions or to retract them. The Council contends that, properly understood, its decisions were that the accommodation was suitable temporary accommodation in the short to medium-term, but not suitable in the long-term.
(3) In Elkundi, Ahmed and Ross, is the Council in breach of the main housing duty? Whatever the nature of the duty, if I were with the Council on the meaning of the review decisions, it would follow the Council is not in breach as the accommodation secured would be (subject to the court reaching a contrary decision on a statutory appeal) suitable. Whereas if I were with the Council on the nature of the duty, but not on the meaning of the review decisions, then the question whether the Council is fulfilling its duty would be closely linked to the issues that arise in respect of Ground 2. The Council acknowledges that if I find for the claimants on both the nature of the duty and the meaning of each of the statutory review decisions, it would follow that the Council has breached its duty under section 193(2). However, sub-issues were raised which potentially impact on whether the Council is in on-going breach of section 193(2). First, since the review decisions, has the Council made (or purported to make) decisions in these claimants' cases that their current accommodation is suitable? Second, if so, does a ‘one way functus officio rule’ apply, prohibiting the Council from reversing a decision that an applicant's accommodation is unsuitable, other than by making an (appealable) offer of that same accommodation?
Al-Shameri
(4) Should the court determine whether the Council has breached and/or is in on-going breach of section 193(2)? If so, what is the answer?
(5) Did the Council's letter of 27 April 2018 create a legitimate expectation that the Council would make the claimant an offer of suitable accommodation and, if so, is the Council in breach of that legitimate expectation (as the claimant contends)?
The claimant relies on the Council's decision on his homeless application of 27 April 2018 in support of both the contention that the Council decided his accommodation was unsuitable (and failed to provide suitable alternative accommodation) and his claim to a substantive legitimate expectation. The Council contends no decision as to suitability was made on 27 April 2018, and in any event Mr Al-Shameri chose to remain homeless at home, so there is no basis for a finding of a past breach. Nor was any representation capable of founding a legitimate expectation made. In respect of the alleged ongoing breach, the claimant contends the court should find the Council's decision that the offer made on 16 November 2020 was suitable accommodation is irrational. The Council contends that the decision is not challenged in this claim (indeed the review decision was made after the hearing had finished) and the claimant has a suitable alternative remedy in the form of a statutory appeal.
Ahmed and Al-Shameri
(6) Is the Council operating an unlawful system for the performance of its duty under section 193(2)? And should Mr Al-Shameri be permitted to pursue this ground? The answer to the latter question does not affect the substance of the argument, only the question whether it is pursued by two claimants or one.
In all cases
(7) What relief (if any) should be granted? In particular, in respect of Ground (1), in each case, should a mandatory order requiring the Council to secure suitable temporary accommodation be made?
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