Elkundi & Ors, R (On the Application Of) v Birmingham City Council

The court held that the local housing authority’s principal duty under section 193(2) Housing Act 1996 is an immediate, unqualified and non-deferrable duty to secure that suitable accommodation is available for occupation by an applicant to whom the duty is owed. The elasticity of the concept of "suitability" (including its temporal element) does not convert the statutory obligation into a merely discretionary or time‑limited duty.

The court found that in the three cases of Elkundi, Ahmed and Ross the Council had decided in statutory review decisions that the accommodation in which those claimants were living was unsuitable, and that the Council had left each claimant in that accommodation. As a result the Council was in ongoing breach of its duty under section 193(2) in respect of those claimants. By contrast, in Al‑Shameri the letter accepting the main housing duty did not give rise to a binding promise to make an offer of permanent accommodation; the claimant had not validly waived his right to temporary accommodation and the Council had been in breach between 27 April 2018 and 28 September 2020, but the subsequent offer and later review decision were not challenged in these proceedings.

The court also held that the Council’s operational system of placing households who are owed the section 193(2) duty on a Planned Move List and leaving those in unsuitable accommodation on that list while awaiting offers amounted to an unlawful system for the performance of the section 193(2) duty.

This judicial review concerned four linked claims by homeless applicants against Birmingham City Council arising under Part VII of the Housing Act 1996. Each claimant sought relief on the basis that the Council was failing in its duty under section 193(2) to secure suitable accommodation for applicants owed the "main housing duty".

Background and procedure

• The four claimants had been assessed under the statutory homelessness regime. The Council accepted the main housing duty in three of the cases and had accepted it in Al‑Shameri’s case in 2018. Several statutory review decisions and pre‑action correspondence underpinned the disputes.
• The hearing was a four day rolled up judicial review of issues of statutory interpretation, the meaning and effect of statutory review decisions, alleged legitimate expectation, and a challenge to the Council’s operating system, in particular the operation of its internal "Planned Move List" (PML).

Issues framed

• What is the nature of the main housing duty under section 193(2): immediate and unqualified or to secure suitable accommodation within a reasonable time?
• Whether specific statutory review decisions in Elkundi, Ahmed and Ross had, as a matter of construction, decided that the accommodation was unsuitable.
• Whether the Council was in breach of section 193(2) in each case and whether, if a favourable review decision has been given, the Council can later reverse that position without providing an appealable offer (a functus officio issue).
• In Al‑Shameri whether the Council had been in breach since its 2018 decision and whether the 27 April 2018 letter gave rise to a substantive legitimate expectation to be offered suitable accommodation.
• Whether the Council’s practice of operating the PML and leaving households in accommodation it had conceded was unsuitable amounted to an unlawful system.

Reasoning and conclusions

• The court analysed the statutory text and authorities (including Awua, Begum, Codona, Aweys and Birmingham v Ali) and followed Linden J in R (M) v Newham. It concluded that section 193(2) imposes an immediate and unqualified duty to secure suitable accommodation where the statutory criteria are met; the temporal flexibility of the suitability assessment is relevant to what accommodation may count as suitable for short, medium or longer terms, but does not qualify the duty into a mere obligation to act within a reasonable time.
• Applying Holmes‑Moorhouse and Ermakov principles on interpreting review decisions and excluding post‑decision evidence that would alter outcomes, the court held that the Council’s review letters in Elkundi (3 January 2020), Ahmed (18 December 2019) and Ross (23 October 2020) decided that the accommodation was unsuitable and that the Council had left each claimant in unsuitable accommodation. The Council therefore was in ongoing breach of section 193(2) in each of those three cases.
• The court rejected the substantive legitimate expectation claim based on the 27 April 2018 letter in Al‑Shameri because the communication was not a clear, unambiguous, unqualified promise and in any event the later offer (and review decision upholding that offer) could not properly be challenged in this claim.
• The court concluded the Council’s system of placing households (including those in unsuitable accommodation) on the Planned Move List and awaiting allocation was unlawful as a means of performing the unqualified section 193(2) duty. The system was also opaque and insufficiently takes account of disability‑related needs and the public sector equality duty.

Remedies

• Mandatory relief: the court ordered the Council to secure suitable accommodation within 12 weeks in favour of Mr Elkundi and Mr Ahmed (the court considered mandatory relief reasonable there but not for Mrs Ross, taking account of facts and the Council’s active steps in her case).
• Declarations: the court declared the unqualified nature of the section 193(2) duty, that the Council had been in breach in respect of Elkundi, Ahmed and Ross, and that the Council’s PML system for those in unsuitable accommodation was unlawful. A declaration of past breach was granted for Al‑Shameri covering 27 April 2018 to 28 September 2020. Ground 3 (legitimate expectation) failed.

This first instance judicial review was allowed in part. The court held (1) as a matter of statutory interpretation that the main housing duty under section 193(2) HA 1996 is immediate, unqualified and non‑deferrable; (2) that the Council had decided by statutory review that the accommodation in Elkundi (3 January 2020), Ahmed (18 December 2019) and Ross (23 October 2020) was unsuitable and had left those claimants in that accommodation, thereby breaching section 193(2); (3) that the Council’s practice of leaving applicants it accepts are in unsuitable accommodation on a Planned Move List pending offers is unlawful; (4) that in Al‑Shameri the Council was in breach from 27 April 2018 until 28 September 2020 but the subsequent offer and review decision could not be ruled on in these proceedings; and (5) that the substantive legitimate expectation claim failed because the 2018 letter did not amount to a clear, unambiguous and unqualified promise. The court granted mandatory relief requiring the Council to secure suitable accommodation for Elkundi and Ahmed within 12 weeks, and made declarations as to breach and the lawfulness of the Council’s system, with other relief as indicated in the judgment.

Permission to apply for judicial review was granted in the individual cases prior to the hearing: in Elkundi permission was granted on appeal by Andrews LJ (order dated 3 November 2020); permission in Ross and Ahmed was granted by Saini J (orders dated 6 January 2021); HHJ Worster granted permission in Al‑Shameri (order dated 7 January 2021). The hearing was directed to be heard together and was relisted for 9–12 March 2021.