The Queen (on the application of Abdelmotalib Elkundi v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Peter Jackson LJ,Underhill LJ |
| Judgment Date | 04 May 2022 |
| Neutral Citation | [2022] EWCA Civ 601 |
| Docket Number | Case No: CA 2021-000621 & CA 2021-001377 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 601
Lord Justice Underhill
(VICE-PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION))
Lord Justice Peter Jackson
and
Lord Justice Lewis
Case No: CA 2021-000621 & CA 2021-001377
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
STEYN J
CO/716/2020; CO/4291/2020, CO/4413/2020 and CO/3687/2020
And
MATTHEW GULLICK QC SITTING AS A DEPUTY HIGH COURT JUDGE
CO/889/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Straker Q.C. Jonathan Manning, Annette Cafferkey, and Annabel Heath (instructed by Director of Legal Services, Birmingham City Council) for the Appellant in the first appeal
Zia Nabi and Joseph Markus (instructed by the Community Law Partnership) for the Respondents in the first appeal
Martin Westgate Q.C. and Sarah Steinhardt (instructed by Deighton Pierce Glynn) for the Appellant in the second appeal
Kelvin Rutledge Q.C. (instructed by Browne Jacobson LLP) for the Respondent in the second appeal
Hearing dates: 1 to 3 March 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 4 May 2022.
INTRODUCTION
The principal issue in the first appeal is the nature of the duty owed by local housing authorities to homeless persons under section 193(2) of the Housing Act 1966 (“the 1996 Act”). That section provides that a local housing authority “shall secure that accommodation is available for occupation by the applicant”.
Steyn J (“the Judge”) held that the 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 City Council, (“Birmingham”) contends that the Judge 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.
Birmingham also contends that the Judge erred in three other respects. First, it contends that the Judge 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. Secondly, it contends that 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. Thirdly, it contends that 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.
The sole issue in the second appeal concerns 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). The local housing authority, the London Borough of Croydon (“Croydon”), 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 Q.C., sitting as a deputy judge of the High Court (“the Deputy Judge”) declined to grant a mandatory order requiring Croydon to comply with its statutory duty. Ms Imam contends that it was wrong in principle for the Deputy Judge to refuse a mandatory order in the exercise of his discretion.
THE LEGISLATIVE FRAMEWORK
Part VI of the Housing Act 1996: Allocation of Housing Accommodation
Local housing authorities have power to provide housing accommodation: see Part II of the Housing Act 1985. Part VI of the 1996 Act deals with the allocation of housing accommodation. Section 159 requires the authority to comply with the provisions of Part VI when allocating housing accommodation. Section 166A requires the authority to have an allocation scheme for determining priorities in the grant of housing and to give reasonable preference to particular groups, including the homeless and those owed duties under, amongst other provisions, section 193(2). Applicants for housing are placed on the local housing authority's register and properties are allocated in accordance with the allocation scheme as properties become available. In view of the shortage of housing accommodation, it is possible for an applicant to remain on the housing register for many years, sometimes for life, without being allocated housing under Part VI. Housing allocated under Part VI is granted on a secure tenancy or an introductory tenancy (that is a tenancy for a trial period which leads to a secure tenancy).
Part VII of the 1996 Act: The Homelessness Provisions
Part VII of the 1996 Act imposes duties in respect of those who are homeless or threatened with homelessness. The provisions of Part VII have been amended over time, including by amendments made by the Homelessness Reduction Act 2017 (“the 2017 Act”) which introduced additional duties in respect of cases where applications for assistance were made after 3 April 2018. The provisions of the 2017 Act, however, do not apply in four of the five cases in the present appeals as the applications were made before that date. The amended provisions do apply in one case, that of Mr Ahmed, but the additional duties are not material in his case. For those reasons, the summary below considers only the provisions of the 1996 Act prior to the amendments made by the 2017 Act.
Meaning of Homelessness
A person is homeless if he has no accommodation available for occupation by him and any person who normally resides with him as a member of his family or who might reasonably be expected to reside with him: see sections 175(1) and 176 of the 1996 Act. Section 175(3) of the 1996 Act provides that:
“A person shall not to be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”
Regard may be had to the general circumstances prevailing in relation to housing in the authority's area in determining whether it is reasonable for a person to continue to occupy accommodation: see section 177(2) of the 1996 Act. Section 177(1) provides that it is not reasonable to continue to occupy accommodation if it is probable that that would lead to a risk of domestic violence. The Secretary of State may prescribe other circumstances in which it is, or is not, reasonable to continue to occupy accommodation: see section 177(3) of the 1996 Act.
There are, therefore a number of situations in which a person may be regarded as homeless under the 1996 Act. They include circumstances where persons have no accommodation physically available to them at all. They also include situations where persons have some accommodation physically available to them but it is not reasonable for them to occupy it because, for example, it is overcrowded or may not address their needs. The accommodation, for example, may be on an upper floor of a block of flats and the person may have mobility issues. Or the person may have a disability and the property may not be adapted to meet their needs.
Furthermore, while it may be reasonable for the person and his family to continue to occupy accommodation for a short period, it may not be reasonable for them to continue to do so in the longer term. In those circumstances, the requirements of section 175(3) are met and the applicant and his family are still homeless for the purposes of Part VII of the 1996 Act even though they are living in accommodation which is, at present, reasonable for them to occupy: see the speech of Baroness Hale, with whom the other members of the House of Lords agreed, Ali v Birmingham City Council [2009] UKHL 36, [2009] 1 W.L.R. 1506, especially at paragraphs 34 to 38.
A person is threatened with homelessness if it is likely that he will become homeless within 28 days (now amended by the 2017 Act to 56 days): see section 175(4) of the 1996 Act.
The Duties Imposed by Part VII of the 1996 Act
A person may apply to the local housing authority for accommodation. If the authority have reason to believe that he is or may be homeless or threatened with homelessness, they must carry out certain inquiries to determine if the person is eligible for assistance (which largely depends upon his immigration status) and whether any of the duties under the 1996 Act are owed to him. They must notify the person concerned of their decision and, if any issue is decided against the person's interests, give reasons for the decision: see section 184 of the 1996 Act.
An interim duty may be owed pending the outcome of these inquiries in cases of apparent priority need: see section 188 of the 1996 Act. Persons having a priority need are defined to include a pregnant woman, a person with whom dependent children might reside, a person who is vulnerable as a result of specified circumstances such as old age, mental illness or physical disability, or a person who is homeless as a result of an emergency such as flood or fire or other disaster: see section 189 of the 1996 Act. ...
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