Wolverhampton City Council v London Gypsies and Travellers

This appeal concerns the remedy to be granted where a local housing authority admits breach of its statutory duty under section 193(2) of the Housing Act 1996 to secure suitable accommodation for a person with priority need. The court reaffirmed that the duty under section 193(2) is immediate and unqualified by reference to general budgetary constraints, but that relief in public law is discretionary. The authority must show that it has taken all reasonable steps to perform the duty and must provide detailed evidence if it seeks to resist a mandatory order on the basis that compliance is impossible; mere general reference to budgetary pressures is unlikely to suffice. In exercising its discretion the court may take account of factors such as the severity of the claimant’s need, the length of the breach, whether the authority was on notice, the availability of suitably adapted properties (including whether such stock is being allocated under Part 6 or available for Part 7 duties), and potential unfairness to others, and may grant alternative forms of relief (for example a suspended mandatory order or a quashing order) where appropriate.

Background and procedural history:

• The respondent, Ms Imam, a full-time wheelchair user with three children, was accepted by Croydon as owed the main housing duty under section 193(2) of the Housing Act 1996. Although offered temporary accommodation in 2014 she requested a review and Croydon accepted in June 2015 that the property was unsuitable (primarily because there was no level-access first-floor toilet). Croydon has not provided suitable alternative accommodation and admits it has been in breach of section 193(2) since June 2015.
• Ms Imam commenced judicial review proceedings seeking (inter alia) a mandatory order requiring Croydon to secure suitable accommodation. The deputy High Court judge dismissed the claim for a mandatory order. The Court of Appeal allowed Ms Imam’s appeal, held that the authority must demonstrate it had taken all reasonable steps and could not rely simply on generalized budgetary constraints, and remitted the case for rehearing with liberty to adduce fresh evidence. Croydon appealed to the Supreme Court.

Nature of the claim and issues:

• The primary relief sought was a mandatory order compelling Croydon to secure suitable accommodation under section 193(2). Secondary claims (Equality Act and reassessment of priority) were not central to this appeal.
• The main issues for the court were: (i) whether limits on the resources of a housing authority are relevant to the exercise of the court’s remedial discretion when the authority is in breach of section 193(2); (ii) the standard and quantum of evidence the authority must produce to justify refusal of a mandatory order on grounds of impossibility; and (iii) how the court should balance the claimant’s individual rights against other public interests, including fairness to others on waiting lists and potential disruption to the authority’s allocation and budgeting decisions.

Court’s reasoning and conclusions:

• The Supreme Court reiterated that the statutory duty under section 193(2) gives rise to a personal enforceable right and is, in principle, not qualified by the authority’s general resources; if resources are inadequate to comply with a statutory duty that is a matter for the authority, central government or Parliament, not for routine dilution by the court.
• Remedies in public law are discretionary. A court must therefore exercise caution before refusing to grant mandatory relief where a breach is established. The appropriate approach is to consider whether the authority has taken all reasonable steps to perform the duty; that is an objective question for the court. The authority bears the onus of explaining why a mandatory order should not be made, and must produce detailed evidence about available housing stock and steps taken, not general assertions about funding pressures.
• Budgetary constraints are relevant only insofar as they go to show that it is impossible, in practice, for the authority to comply within a reasonable time or that a mandatory order would have an unduly distortive effect on the authority’s ability to perform its wider statutory functions. The court may take account of the availability of contingency funds, whether the authority was on notice, the seriousness of the claimant’s hardship, and the risk of unfairness to others. The court should avoid usurping the authority’s role but may grant mandatory relief where required to vindicate the statutory right.
• Given deficiencies in Croydon’s evidence about the availability and designation of suitably adapted properties and other relevant matters, the Supreme Court dismissed Croydon’s appeal and remitted the matter to the High Court for rehearing with leave to adduce further evidence. The Court specified topics on which further evidence should be put before the trial court (including the claimant’s evidence as to impact and any contingency resources of the authority).

This was an appeal by the London Borough of Croydon against the Court of Appeal’s decision. The Supreme Court dismissed Croydon’s appeal. The court held that the duty under section 193(2) is an immediate, personal statutory duty and that while general budgetary constraints do not justify non-compliance, the remedial relief is discretionary. An authority seeking to resist a mandatory order on the ground of impossibility or competing resource demands must provide detailed evidence showing it has taken all reasonable steps and explaining why compliance cannot be achieved in the short term. Croydon had not discharged that onus. The case is remitted to the High Court for rehearing with liberty to adduce fresh evidence addressing the matters identified by the Supreme Court.

First instance: Deputy High Court judge (Mathew Gullick KC) [2021] EWHC 739 (Admin) — claim for mandatory order dismissed. Court of Appeal: allowed Ms Imam’s appeal on ground 1 and remitted for rehearing, [2022] EWCA Civ 601. Supreme Court: [2023] UKSC 45 — Croydon’s appeal dismissed and matter remitted to the High Court for further consideration with liberty to adduce fresh evidence.