Kelly & Ors, R (on the application of) v Birmingham City Council

Under section 188 of the Housing Act 1996, a local housing authority must secure interim accommodation where it has reason to believe that an applicant may be homeless, eligible for assistance and in priority need. The threshold is deliberately low. The authority must assess those statutory criteria at the outset and cannot defer or avoid the duty by conducting non-statutory enquiries, applying a higher merits test, or directing the applicant towards alternative housing options. Once engaged, the duty continues until the section 184 enquiries are complete and the applicant has been notified of the resulting housing duty. A procedure that treats interim accommodation as a separate emergency process, rather than part of the statutory scheme, is unlawful.

Two claimants challenged Birmingham City Council’s refusals to provide interim accommodation while their homelessness applications were investigated under Part 7 of the Housing Act 1996. The Council accepted that mistakes had occurred but argued that they were isolated failures by individual officers applying otherwise lawful procedures. A third claim, concerning JI, was dismissed at the permission stage but his circumstances were considered as evidence relevant to the alleged systemic practice. The central issue was whether the Council’s procedures properly applied the low statutory threshold in section 188 or instead deferred or avoided the interim accommodation duty.

1. The applications of Kelly and Mehari were granted permission and the substantive judicial review claims were allowed. The Council’s decisions refusing interim accommodation were unlawful.
2. Section 188 is engaged where the authority has reason to believe that the applicant may be homeless, eligible for assistance and in priority need. The threshold is low. The authority must begin with the information supplied by the applicant and need not be satisfied, on the balance of probabilities, that homelessness or priority need is established.
3. The section 188 duty cannot be deferred or defeated by non-statutory enquiries, housing-option schemes, mediation, or other attempts to prevent homelessness. Such measures may be pursued only in parallel with the Part 7 duties. The principles in R (Aweys and Others) v Birmingham City Council [2007] EWHC 52 (Admin) were applied. The immediate nature of the enquiry duty was supported by Robinson v London Borough of Hammersmith & Fulham [2006] EWCA Civ 1122 and Rikha Begum v Tower Hamlets London Borough Council [2005] EWCA Civ 340.
4. Once engaged, the interim duty continues until the section 184 enquiries have been completed and the authority has notified the applicant in writing of the duty, if any, owed under Part 7. An authority cannot discharge the section 188 duty merely by concluding that the applicant is in fact not homeless or would be safe returning home.
5. The Council’s forms and instructions focused on whether applicants could safely return home and did not direct officers to apply the section 188 criteria. The repeated errors therefore demonstrated a systemic defect in the Council’s practice and procedure, rather than isolated individual mistakes. The claimants had standing because they had suffered the unlawfulness identified, even though their substantive housing needs had subsequently been addressed.
6. The claimants were entitled to declarations that the Council had acted unlawfully by failing to apply the statutory section 188 criteria. The precise terms of the declarations were reserved for further submissions.

First-instance judicial review proceedings. No earlier appellate decision is stated in the judgment.