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

The main housing duty under section 193(2) of the Housing Act 1996 is immediate, unqualified and non-deferrable. It requires the authority to secure suitable accommodation, although suitability is flexible and may depend on the period for which accommodation is expected to be occupied. Once an authority has decided on statutory review that accommodation is unsuitable, it cannot rely on shortages of housing or resources as a defence while leaving the applicant there. A waiting-list system for applicants in unsuitable accommodation is unlawful. The court may nevertheless take practical constraints into account when deciding whether to grant mandatory relief. A fully informed waiver of the right to accommodation is possible, but was not established on the facts.

Four claimants challenged Birmingham City Council’s performance of its homelessness duties under Part VII of the Housing Act 1996. Three claimants were owed the main housing duty under section 193(2) and remained in accommodation which the Council had found unsuitable. The fourth claimant had initially remained in his existing home and later received an offer of temporary accommodation, which the Council subsequently upheld on review as suitable.

The claims raised the nature of the section 193(2) duty, the meaning and effect of statutory suitability-review decisions, the lawfulness of the Council’s Planned Move List, waiver, legitimate expectation and the appropriate relief.

1. Nature of the duty. The duty under section 193(2) of the Housing Act 1996 is immediate, unqualified and non-deferrable. It is a duty to secure a result, not merely to take reasonable steps. Suitability is an elastic concept with a temporal element, so accommodation may be suitable for a short period but unsuitable for longer occupation. That flexibility does not qualify the duty where the authority has determined that the accommodation is unsuitable.
2. The court followed the reasoning in M v Newham London Borough Council and rejected the Council’s contention that the duty was merely to secure suitable accommodation within a reasonable time. The practical constraints recognised in Birmingham City Council v Ali concern suitability and relief, not the existence of the statutory duty.
3. Review decisions. Applying the benevolent and practical approach in Holmes-Moorhouse v Richmond upon Thames LBC, the review decisions in Elkundi, Ahmed and Ross clearly determined that the accommodation was unsuitable. Later witness evidence could not alter those notified outcomes, applying R v Westminster City Council, ex p Ermakov.
4. The Council was therefore in continuing breach of section 193(2) in those three cases. Housing shortages and financial constraints could be relevant to suitability and relief, but supplied no defence after the Council had determined that the accommodation was unsuitable.
5. Functus officio. The issue was obiter because no later suitability decisions had been established in those three cases. If necessary, however, the reasoning in R (Sambotin) v Brent London Borough Council applied: a favourable statutory review decision could not ordinarily be withdrawn or reversed, subject to the limited exceptions identified in that authority. A later change in circumstances could justify offering the same accommodation again.
6. Al-Shameri. The claimant had not given a fully informed waiver of his section 193(2) right. The Council was in breach from 27 April 2018 to 28 September 2020. The later suitability decision concerning Flat 6 was not reviewable in these proceedings because the statutory appeal route was available. The legitimate-expectation claim failed because the Council’s letter was not clear, unambiguous and devoid of relevant qualification.
7. Unlawful system and relief. The Planned Move List was unlawful insofar as it left applicants in unsuitable accommodation while they waited for a property. Mandatory orders were made for Elkundi and Ahmed, requiring suitable accommodation within 12 weeks. Ross received a declaration but no mandatory order because the Council had taken extensive reasonable steps. Al-Shameri received a declaration recording the past breach. Ground 2 succeeded; Ground 3 was dismissed.