Imam, R (On the Application Of) v The London Borough of Croydon

The duty under section 193(2) of the Housing Act 1996 is an immediate duty to secure suitable accommodation. It is not qualified by a reasonable-endeavours or reasonable-time limitation, although practical realities may affect the discretionary relief granted for breach.

When deciding whether to make a mandatory order, the court may consider the seriousness and continuing effects of the unsuitable accommodation, the authority’s efforts, the likelihood of accommodation becoming available, its resources, relevant allocation policies and the position of other applicants. A mandatory order should not require an authority to disregard lawful allocation policies or create an effectively impossible situation.

A public authority must lawfully consider an express request for discretionary housing priority. Evidence given in litigation is not a substitute for the required administrative decision.

The claimant, a disabled wheelchair user living with her family in temporary accommodation, challenged the London Borough of Croydon’s admitted continuing breach of its duty under section 193(2) of the Housing Act 1996. The authority had previously accepted that her accommodation was unsuitable because the only bathroom was on a different floor from her bedroom.

The claimant sought a mandatory order requiring suitable accommodation, alleged breaches of the duty to make reasonable adjustments and the public sector equality duty, and complained that the authority had failed to determine requests for Band 1 priority under its housing allocation scheme.

The issues were whether mandatory relief should be granted, whether the Equality Act claims were established, and whether the authority had unlawfully failed to decide the Band 1 requests.

1. Ground 1: The claim established an admitted continuing breach of section 193(2) of the Housing Act 1996. The duty is to secure suitable accommodation and is not a duty merely to take reasonable steps or use reasonable endeavours. The authority had not wrongly treated permanent Part 6 accommodation as the only means of complying with its Part 7 duty.
2. The court accepted that the authority could not lawfully earmark or allocate accommodation specifically for the claimant in disregard of its Part 6 Scheme or Part 7 Policy. The general power in section 1 of the Localism Act 2011 did not override statutory restrictions or the authority’s adopted policies.
3. A mandatory order remained discretionary. Relevant considerations included the nature and present impact of the unsuitable accommodation, the duration of the breach, the authority’s efforts, the prospects of suitable accommodation becoming available, its finite resources, and the effect on other applicants. The claimant had provided insufficient evidence of the current effect of the accommodation on her daily life. The authority was making reasonable efforts within its resources, and requiring immediate provision would conflict with lawful allocation arrangements and affect applicants with higher priority.
4. The mandatory order was therefore refused. No further relief was necessary on Ground 1 because the breach was admitted.
5. Ground 2: The reasonable-adjustments claim failed because the claimant had not established that the alleged provision, criterion or practice placed disabled applicants at a substantial disadvantage compared with the relevant comparator group. The burden under section 136 of the Equality Act 2010 had not shifted. The court therefore did not need to assess the reasonableness of the proposed adjustments.
6. Ground 3: The authority had considered direct offers, so no unlawfulness was established on that issue. However, it had failed to determine the claimant’s express requests in 2018 and 2020 for Band 1 priority. The evidence of an officer’s view that Band 3 remained appropriate did not substitute for the required consideration under the Part 6 Scheme, nor establish that the outcome would highly likely have been unchanged under section 31(2A) of the Senior Courts Act 1981.
7. The claim succeeded on Ground 3. A declaration was made that the authority had unlawfully failed to determine the claimant’s request for Band 1 priority. The authority was required to determine that request in accordance with its policy.

First-instance judicial review claim. Permission was granted on the papers by a Deputy High Court Judge on 19 May 2020. The claim succeeded only on the failure to determine the requests for Band 1 priority.