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

Under Housing Act 1996, Part 7, the interim accommodation duty arises at a low threshold where the authority has reason to believe that the applicant may be homeless, eligible for assistance and in priority need. A blanket policy requiring homelessness and interim accommodation decisions on the day of application is unlawful, although straightforward cases may sometimes be decided promptly after the necessary inquiries. Preventative or support services may operate alongside the statutory scheme, but cannot replace consideration of a homelessness application. Misfeasance in public office requires subjective reckless indifference to the illegality, not merely a serious mistake or poor drafting. An academic judicial review claim may nevertheless justify a declaration where this serves good administration, particularly against a background of systemic failure.

Four judicial review claims concerned Birmingham City Council’s handling of applications under Part 7 of the Housing Act 1996. The claimants alleged that the Council had unlawfully directed staff to refer certain single homeless people to support agencies without completing homelessness applications, and had operated a same-day decision-making policy. Mr Khazai also alleged misfeasance in public office. By the hearing, the claimants had obtained accommodation or otherwise achieved the practical relief sought. The issues were whether the Council’s procedures were unlawful, whether the evidence established the mental element of misfeasance, and whether declarations or permission should nevertheless be granted.

Outcome. Permission was granted in the claims of Mirghani and Azizi, and appropriate declarations were made in those cases and in Khazai. Permission was refused on the renewed application in Ibrahim.

1. The 24 February direction was unlawful if implemented. Support services and housing options could be used in parallel, but could not substitute for the Council’s duties under Part 7. A homelessness application had to be accepted for consideration where the statutory conditions were raised, and the section 188 duty had to be addressed.
2. The threshold under section 188 was low. The Council had to secure accommodation where it had reason to believe that the applicant might be homeless, eligible for assistance and in priority need, pending its decision under section 184. A blanket same-day policy requiring completion of the section 184 and section 188 processes in one day would be unlawful. The length and extent of inquiries depended on the circumstances, although an initial interview and preliminary assessment should ordinarily occur on the day of application.
3. The documents concerning “Homeless on the Day” cases did not establish a blanket same-day policy. Properly construed, they required the section 188 test to be applied. Nevertheless, the Council’s apparent ethos of overcoming as many hurdles as quickly as possible had caused, or was likely to cause, unlawful decisions. A thorough procedural review with high-level legal advice was required.
4. Misfeasance was not established. The relevant test, derived from Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 and reinforced by Southwark LBC v Dennett [2008] HLR 23, required subjective reckless indifference to the illegality. Mr Hardy’s instruction was unlawful, but the evidence supported an inference of oversight and ill-considered drafting rather than bad faith or reckless indifference.
5. Although the claims had substantially become academic, declarations were justified in Khazai, Mirghani and Azizi because of the Council’s history of systemic criticism and the need to foster good administration. This was not encouragement to pursue every rectified breach to a full hearing.