Abdelmotalib Elkundi & Ors. (R on the application of) v Birmingham City Council

Where the main homelessness duty under Housing Act 1996, section 193(2), arises, a local housing authority must secure that suitable accommodation is available immediately. The duty is neither qualified nor deferrable. Suitability is flexible and time-sensitive. Accommodation may be suitable in the short term although unsuitable in the medium or long term.

Once an authority has decided that current accommodation is unsuitable even in the short term, it is in breach while it leaves the applicant there. It cannot lawfully operate a waiting-list system which gives priority solely by waiting time without distinguishing applicants whose accommodation is presently unsuitable. A mandatory order depends on whether the authority has taken all reasonable steps to comply; general financial constraints do not justify continued non-compliance.

These conjoined appeals concerned local housing authorities which accepted that they owed the main homelessness duty under section 193(2) of the Housing Act 1996.

In the Birmingham proceedings, Steyn J held that the duty was immediate and that Birmingham’s planned-move waiting list was unlawful because it did not distinguish applicants in presently unsuitable accommodation. She granted declarations and made a mandatory order in Mr Ahmed’s case. Birmingham appealed.

In the Croydon proceedings, a Deputy High Court Judge accepted that Mrs Imam’s wheelchair-accessible accommodation was unsuitable, but declined a mandatory order despite Croydon’s admitted breach. Mrs Imam appealed. The central questions were the nature of the section 193(2) duty and the proper exercise of discretion to grant mandatory relief for its breach.

1. Birmingham’s appeal was dismissed. Section 193(2) of the Housing Act 1996 requires a housing authority, once the statutory conditions are met, to secure that suitable accommodation is available. The obligation arises immediately and is not a duty to secure accommodation within a reasonable time. The Court followed the majority reasoning in R (Aweys and others) v Birmingham City Council, [2008] EWCA Civ 48.

2. The duty does not require immediate permanent housing. Suitability is fact-sensitive and may change over time. Temporary accommodation may be suitable while longer-term accommodation would not be. However, where the authority decides that the applicant’s current accommodation is already unsuitable, it must secure other suitable accommodation and remains in breach while it does not do so. The Court applied the temporal analysis in Ali v Birmingham City Council, [2009] UKHL 36.

3. Birmingham’s system was unlawful. It allocated property principally by bedroom need and waiting-list duration, without distinguishing applicants whose accommodation was presently unsuitable from those whose accommodation was suitable for the time being. The system therefore failed to perform the immediate section 193(2) duty. Birmingham had also not shown that it had had due regard to disability-related equality considerations under section 149 of the Equality Act 2010.

4. An applicant may choose to remain in current accommodation rather than receive accommodation under section 193(2), but only with fully informed consent. Mr Al-Shameri had agreed only to remain at home rather than accept interim accommodation pending Birmingham’s inquiries. He had not knowingly waived the later main duty.

5. A mandatory order is discretionary. The central question is whether the authority has taken all reasonable steps to secure suitable accommodation. Relevant matters include the extent and effect of unsuitability, delay, likely availability and detailed evidence of the steps taken. Budgetary constraints do not justify non-compliance once the duty is owed and present accommodation is unsuitable.

6. Mrs Imam’s appeal was allowed and remitted to the High Court. The Deputy Judge wrongly treated Croydon’s budgetary constraints as relevant and accepted insufficiently detailed evidence that it had taken all reasonable steps. The mandatory order for Mr Ahmed was upheld.

• Court of Appeal (Civil Division): Birmingham’s appeal was dismissed. Mrs Imam’s appeal was allowed and her claim for mandatory relief was remitted to the High Court.

• Administrative Court (Steyn J): Held that the section 193(2) duty was immediate and unqualified, declared Birmingham’s system unlawful, and granted relief including a mandatory order for Mr Ahmed.

• High Court (Deputy High Court Judge): Accepted Croydon’s continuing breach of section 193(2), but refused a mandatory order and dismissed Mrs Imam’s judicial-review claim.