Birmingham City Council v Aweys & Ors

Under Part 7 of the Housing Act 1996, once a local housing authority accepts that an applicant is homeless, eligible, in priority need and not intentionally homeless, it must secure suitable alternative accommodation. It cannot discharge that duty by leaving the applicant in premises which made the applicant homeless because continued occupation is unreasonable, even temporarily. Accommodation available for occupation in section 193(2) bears the same essential meaning as in section 175(1). A Part 6 allocation scheme must not automatically prefer street homeless applicants over homeless-at-home applicants who are owed the same main duty.

Six respondent households lived in overcrowded accommodation. Birmingham City Council accepted that each was homeless because it was unreasonable for the household to continue occupying its existing accommodation, and accepted that the main duty under section 193(2) applied. The Council nevertheless left some families in their homes while they awaited suitable permanent accommodation.

Its allocation scheme placed homeless applicants in Council-provided temporary accommodation in Band A, while homeless-at-home applicants were placed in Band B. Collins J declared that the Council was in breach of duty and that the allocation scheme was unlawful. The Council appealed on whether it could leave homeless families at home temporarily and whether the different priority bands were lawful.

Appeal dismissed. The declarations made by Collins J were upheld on both issues.

1. Once the statutory conditions in section 193(2) are satisfied, the main duty arises immediately. Section 175(3) deems an applicant not to have accommodation where it would not be reasonable to continue occupying it. The premises which caused the homelessness therefore cannot satisfy the duty merely because the applicant remains a tenant or because the period is temporary.
2. Accommodation available for occupation in section 193(2) bears the same meaning as accommodation in section 175(1). R v Brent LBC ex parte Awua [1996] 1 AC 55 establishes that accommodation need not be settled or permanent, but it concerned temporary accommodation which remained reasonable to occupy. That authority did not permit reliance on premises already accepted to be unreasonable for continued occupation.
3. Ward LJ considered it unnecessary to decide wider questions concerning the time for performance of the duty, remedies, or staged accommodation. Arden LJ considered that section 193(2), being expressed as a duty to secure a result, did not imply a reasonable period for performance. She nevertheless left open whether a mandatory order might be refused where the authority was placed in an effectively impossible situation. The court also accepted that an applicant could choose to remain temporarily, but only by fully informed and free consent.
4. The allocation scheme was unlawful. Applicants in both bands were owed the same main duty, and the distinction arose from the Council’s unlawful failure to provide temporary accommodation to homeless-at-home applicants. There was no justification for automatically preferring roofless homeless applicants. On the statutory approach to relative housing need, homeless-at-home applicants might have the stronger claim. The court did not decide that financial consequences were irrelevant, and R (on the application of Lin) v Barnet LBC [2007] EWCA Civ 132 concerned a different comparison and did not govern this issue.

Lady Justice Smith agreed with both judgments.

• Court of Appeal (Civil Division) dismissed Birmingham City Council’s appeal and upheld the declarations: [2008] EWCA Civ 48 .
• Queen’s Bench Division (Administrative Court), Collins J, declared on 26 January 2007 that the Council was in breach of its homelessness duty and that its allocation policy was unlawful.