R (on the application of Imam) v London Borough of Croydon

Insufficient resources do not qualify an unqualified statutory duty or permit a public authority to prefer discretionary functions. Public law relief remains discretionary, but a remedy should ordinarily follow an established breach and refusal requires clear justification.

When a mandatory order is sought, the authority bears the burden of explaining in detail why compliance would be impossible and showing objectively that it has taken all reasonable steps. The court may consider currently available resources, disruption of settled budgets, contingency funds, prior notice and delay, the impact on the individual, progress towards compliance and fairness to others. It must balance enforcement of Parliament’s command against inappropriate judicial control of public administration. An immediate or suspended mandatory order, another remedy, or exceptionally no order may result.

Croydon accepted that it owed Ms Imam, a wheelchair user with three children, the main housing duty under section 193(2) of the Housing Act 1996. It also accepted that accommodation occupied by the family was unsuitable because it lacked an accessible first-floor toilet. The breach continued for almost six years before the judicial review hearing.

The High Court, in R (on the application of Imam) v London Borough of Croydon [2021] EWHC 739 (Admin), declined to make a mandatory order. The Court of Appeal allowed Ms Imam’s appeal and remitted the claim for reconsideration: [2022] EWCA Civ 601. Croydon appealed to the Supreme Court.

The central issue was whether, and in what way, limits on a local housing authority’s resources may affect the court’s discretion to grant a mandatory order requiring compliance with section 193(2).

1. Appeal dismissed unanimously. Lord Sales gave the judgment, with which Lord Lloyd-Jones, Lord Leggatt, Lord Richards and Lord Burnett agreed. The claim for mandatory relief remained remitted to the High Court for reconsideration on fresh evidence.

2. The section 193(2) duty under the Housing Act 1996 is a personal statutory duty directed to securing suitable accommodation. It is not qualified by the authority’s resources. Courts must not dilute Parliament’s command by routinely withholding relief because compliance is expensive or requires resources to be used differently. A public authority must give priority to statutory duties over discretionary functions, consistently with R v East Sussex County Council, Ex p Tandy [1998] AC 714.

3. Public law remedies are nevertheless discretionary. A remedy should ordinarily be granted for an established breach, and a court should refuse relief cautiously and only where clearly justified. A mandatory order has effects beyond the underlying duty because it removes the matter to an extent from the authority and introduces enforcement through contempt. The court must therefore consider impossibility, effects on third parties, good administration, disruption of other statutory functions and the proper separation of powers.

4. Where the authority is in breach, it bears the burden of giving a detailed explanation why a mandatory order should not be made. It must show objectively that it has taken all reasonable steps to perform the duty. This is not review for Wednesbury rationality. Ordinarily, possibility is assessed by reference to the authority’s position at the time of the proceedings. The court may consider available suitable property and the effect of disturbing settled budgetary allocations, but general financial pressure cannot excuse non-compliance.

5. Relevant considerations include any contingency fund; previous notice of the problem and avoidable delay; the seriousness and urgency of the impact on the claimant; whether the authority is taking effective steps towards compliance; and whether an order would give the claimant unfair priority over others with equal or better claims. The court may suspend a mandatory order or grant another remedy where that achieves appropriate enforcement without unjustified disruption.

6. Croydon’s evidence was inadequate. It dealt in generalities and did not sufficiently explain what suitably adapted properties were available or why property potentially usable under the discretionary Part 6 scheme could not be used to meet binding Part 7 duties. Expense or a view that adaptation was not cost-effective was no answer. Fresh evidence from Ms Imam was also required concerning the impact of the unsuitable accommodation. The High Court was to apply the Supreme Court’s guidance on reconsideration.

1. United Kingdom Supreme Court: Croydon’s appeal was dismissed unanimously in R (on the application of Imam) v London Borough of Croydon [2023] UKSC 45. The remittal for reconsideration on fresh evidence was maintained.
2. Court of Appeal: In [2022] EWCA Civ 601, the court allowed Ms Imam’s appeal against the refusal of a mandatory order, set that refusal aside and remitted the claim to the High Court.
3. High Court: In R (on the application of Imam) v London Borough of Croydon [2021] EWHC 739 (Admin), also reported at [2021] HLR 44, the deputy judge dismissed the claims concerning mandatory housing relief and the Equality Act but allowed the housing-register claim in part.