Seyyed Mohammad Mahdi Jaberi, R (on the application of) v City of Westminster

A local authority’s main housing duty under section 193(2) of the Housing Act 1996 is immediate, but accommodation may remain suitable for a short or medium period while alternative accommodation is found. Suitability is flexible and depends on all the circumstances. However, where an authority has long recognised that temporary accommodation is unsuitable for an applicant’s medical and household needs, it may become irrational to regard it as suitable even temporarily.

An allocation scheme need only give reasonable preference to each statutory category. It need not give greater priority to applicants who fall within more than one category, or allow them to choose between priority groups. The statutory information duty requires a right to request general information, not necessarily forecasts based on counterfactual versions of the scheme.

The claimant, a disabled refugee with epilepsy, was owed the main housing duty and had been placed in temporary accommodation with internal stairs and insufficient bedrooms. Westminster later accepted that he required level-access accommodation and a three-bedroom property. It subsequently offered alternative accommodation, whose suitability was subject to review.

The claimant sought judicial review on three grounds: breach of the main housing duty under section 193(2) of the Housing Act 1996; denial of reasonable preference under section 166A(3); and failure to provide information required by section 166A(9)(a)(ii). The central questions were whether the original accommodation had become unsuitable, whether the allocation scheme unlawfully excluded homeless applicants from medical priority, and whether the authority had complied with its information obligations.

1. Main housing duty. Section 193(2) requires the authority to secure that accommodation is available, and section 206 requires it to be suitable. Following R (Elkundi) v Birmingham City Council, the duty is immediate, non-deferrable and unqualified, although suitability is flexible and may change over time. Accommodation unsuitable for long-term occupation may remain suitable briefly while suitable alternatives are identified.
2. By the date the claim was issued, it would have been irrational to regard the claimant’s temporary accommodation as suitable even in the short term. The authority had long accepted that he needed level access and, for health reasons, three bedrooms. The accommodation’s internal stairs effectively confined him to the top floor, while his wife slept on the floor for an extended period. The authority had therefore breached section 193(2), but the breach was not continuing once alternative accommodation had been made available. A mandatory order was consequently refused.
3. Reasonable preference. Section 166A(3) requires reasonable preference for applicants within the specified categories, but does not require absolute priority or additional priority for applicants falling within more than one category. The allocation scheme rationally placed the claimant in the homeless priority group rather than the medical priority group, because the authority’s Part VII duty provided another route to suitable accommodation. The exclusion in section 6.1.2 was therefore lawful and not irrational.
4. Information. Section 166A(9)(a)(ii) requires the scheme to secure a right to request general information enabling an applicant to assess whether suitable housing is likely to become available and when. It does not require the authority to provide information about a hypothetical choice of priority group which the scheme does not permit. The authority had provided the information reasonably requested, and had not breached either the statute or its allocation policy.
5. The appropriate relief was a declaration that the main housing duty had been breached. The remainder of the claim was dismissed.