AYW & Anor, R (on the application of) v The Secretary of State for the Home Department

Where a public authority admits breach of a statutory duty to provide adequate asylum accommodation, the ordinary remedy is a mandatory order. The court should refuse such relief only cautiously, including where compliance is impossible. The authority bears the burden of establishing impossibility and must show that it has taken all reasonable steps.

Resource constraints do not ordinarily justify withholding relief. The court must, however, frame the order proportionately, having regard to the authority’s functions, the claimant’s needs, the interests of others, and the practical availability of accommodation. A claimant cannot dictate the precise location of accommodation, but the authority must give proper weight to exceptional medical and welfare circumstances.

The claimants, a mother and her severely disabled five-year-old child, sought judicial review of the Secretary of State’s admitted breach of sections 95 and 96 of the Immigration and Asylum Act 1999. Their hotel accommodation was unsuitable for the child’s complex medical, care and accessibility needs.

The Secretary of State accepted the breach but submitted that a mandatory order should be refused, or that the matter should be adjourned, because suitable accommodation was unavailable. The central issue was the appropriate relief, including the location, characteristics and compliance period for any mandatory order.

1. Relief. The claim was allowed. The court granted a declaration that the Defendant was in breach of sections 95 and 96 of the Immigration and Asylum Act 1999, made a mandatory order, and ordered the Defendant to pay the claimants’ costs.
2. Applicable principles. Mandatory relief is discretionary but must be granted on principle. Applying R (Imam) v Croydon London Borough Council [2023] UKSC 45, the court treated the ordinary position after an established breach as being that relief should be granted. The court should not routinely moderate the substance of a statutory duty because of resource constraints. It should refuse a mandatory order only cautiously, including where the order would undermine the authority’s functions to an unjustified degree or compliance was impossible.
3. Impossibility. The Defendant bore the burden of establishing impossibility. That required evidence that all reasonable steps had been taken to secure suitable accommodation. The evidence was insufficient. It did not adequately address efforts before September 2024, availability during November 2024, or evidence from Clearsprings Ready Homes. The court also distinguished financial resources from the available housing stock.
4. Relevant factors. The court considered the factors summarised in R (L) v Hampshire County Council [2024] EWHC 1928 (Admin), including contingency planning, prior notice, the claimant’s pressing needs, steps taken to remedy the breach, and fairness to others. The Defendant had been on notice for about 12 months, had made inadequate progress, and the continuing breach materially affected both claimants. Systemic shortcomings identified in R (NS) v The Secretary of State for the Home Department [2023] EWHC 2675 (Admin) and R (oao DXK) v The Secretary of State for the Home Department [2024] EWHC 579 (Admin) reinforced, rather than displaced, the need for relief.
5. Terms of order. The order required wheelchair-accessible accommodation, with priority for Southwark or Lambeth and consideration meanwhile of other suitable South-East London boroughs, including Lewisham and Bromley. A ground-floor requirement was not imposed, provided that any upper-floor accommodation had reliable and practical accessibility. The long-stop date for compliance was 24 February 2025.