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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Elkundi & Ors, R (On the Application Of) v Birmingham City Council  EWHC 1024 (Admin) (23 April 2021)
Cite as:  WLR 4031,  WLR(D) 235,  1 WLR 4031,  EWHC 1024 (Admin)
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF ABDELMOTALIB ELKUNDI)
|- and -
|BIRMINGHAM CITY COUNCIL
THE QUEEN (ON THE APPLICATION OF
|BIRMINGHAM CITY COUNCIL
THE QUEEN (ON THE APPLICATION OF
CALI HAAJI AHMED)
|BIRMINGHAM CITY COUNCIL
THE QUEEN (ON THE APPLICATION OF
|BIRMINGHAM CITY COUNCIL
Jonathan Manning, Annette Cafferkey, Stephanie Lovegrove and Annabel Heath (instructed by Birmingham City Council) for the Defendant
Hearing dates: 9 - 12 March 2021
Crown Copyright ©
Mrs Justice Steyn :
"The Defendant has adopted an unlawful informal system whereby it will accept that accommodation is unsuitable within the meaning of sections 206(1) and 210 HA 1996 but then go on to say that the accommodation is not unreasonable for continued occupation, over an inherently uncertain timescale, until alternative accommodation can be provided ('Ground 2'). The Claimant accordingly seeks a declaration that the Defendant is operating an unlawful system for the performance of its duty under section 193(2) HA 1996."
In amended grounds filed and served with the permission of HHJ Worster granted on 7 January 2021, Mr Al-Shameri also seeks to pursue Ground 2. In his case, Ground 2 has proceeded as a rolled up hearing, pursuant to Morris J's order, and so a question arises as to whether he should be granted permission.
B. The issues
In all four cases
Elkundi, Ahmed and Ross
Ahmed and Al-Shameri
In all cases
C. Preliminary matters
D. The facts of the individual cases
"Homeless Review Request
1. I refer to your review request received by the Council in relation to the suitability of your current temporary accommodation provided by the Council pursuant to its duties under s193(2) HA 1996.
2. I have now completed my enquiries and I consider that your current accommodation is unsuitable on mobility grounds, given the difficulties you have in accessing the accommodation and the recommendations made by the Council's Occupational Therapist. I have notified the temporary accommodation team of my decision and have requested that alternative suitable temporary accommodation is identified as soon as possible.
3. It is unfortunately the case that the Council has received a significant increase in homeless applications in recent months, which has led to a significant increase in the number of households accommodated in temporary accommodation. The Council always endeavours to move households to suitable accommodation as soon as possible in order to comply with the above legislation however due to the current unprecedented demand the Council is in some cases unable to do so.
4. Please rest assured that the Council is taking all reasonable steps to both secure an increased supply of accommodation and to make best use of existing stock, and you will be provided with alternative accommodation as soon as possible. Unfortunately due to the pressures I have referred to above, I am unable to provide a timescale for the provision of such alternative accommodation. You will be contacted separately by an officer from the temporary accommodation team as soon as accommodation becomes available.
5. Under s204 of HA 1996 you do have a right of appeal to the County Court on a point of law. If you wish to appeal, you must do so within 21 calendar days of being notified of this decision."
"As a result of the review decision the family were placed on the Planned Move List on 10 January 2020. The council is therefore searching for a suitable property for this family of seven. We have not been able to find any suitable alternative accommodation for this family whether in the private sector or within the council's own housing stock up until today because there are very few 4-5 bedroomed properties available."
On 6 March 2020, Ms Pumphrey's evidence was the Elkundi family "are currently number 1 on the Planned Move List".
i) First in the four-bedroom queue was an applicant who required specialist accommodation. The Council's record shows that by 12 March 2021 this applicant's "Days Waiting" were 4,679 (i.e. 12 years, 10 months).
ii) Second in the four-bedroom queue was an applicant who, the Council anticipated, would shortly switch to a different bedroom queue. This applicant was recorded as having been waiting 4,406 days (i.e. 12 years, 1 month).
iii) Third in the four-bedroom queue was an applicant whose household had reduced in size and so the Council anticipated this applicant, too, would shortly move out of the four-bedroom queue. This applicant was recorded as having been waiting 2,358 days (i.e. 6 years, 5 months).
"Homeless Review Request
1. I refer to your review request received by the Council in relation to the suitability of your current temporary accommodation provided by the Council pursuant to its duties under s193(2) HA 1996.
2. I have now completed my enquiries and I consider that your current accommodation is unsuitable on the basis of overcrowding. I have notified the temporary accommodation team of my decision and have requested that they identify alternative suitable temporary accommodation as soon as possible.
3. Please rest assured that the Council is taking all reasonable steps to both secure an increased supply of accommodation and to make best use of existing stock, and you will be provided with alternative accommodation as soon as possible. Unfortunately, I am unable to provide a timescale for the provision of such alternative accommodation. You will be contacted separately by an officer from the temporary accommodation team as soon as accommodation becomes available.
4. Under s204 of HA 1996 you do have a right of appeal to the County Court on a point of law. If you wish to appeal, you must do so within 21 calendar days of being notified of this decision."
i) Mrs Ross "has difficulty negotiating the threshold of the front door in her electric wheelchair". He recommended this difficulty could be resolved by putting in an internal threshold ramp.
ii) Mrs Ross "stated that she has difficulty accessing the bathroom in her wheelchair due to the turning space from the corridor to the bathroom". He recommended replacing the existing bathroom door with a sliding door to enable Mrs Ross to access the bathroom with less difficulty.
iii) Mrs Ross "demonstrated that she has difficulty accessing the kitchen in her wheelchair due to restricted space". She was "unable to manoeuvre her wheelchair once in the kitchen and the turning space into the kitchen from the corridor is limited". He stated that he would discuss adaptation of the property to enable Mrs Ross to access the kitchen via the reception room.
"1) Raise or replace the current toilet basin to achieve a height of approximately 19.
2) Reposition sink basin and provide bilateral drop down rails to allow the service user to transfer independently from her wheelchair.
3) Adaptation to the properties kitchen area to create sufficient turning space for the service user's electric wheelchair.
4) Entry to the kitchen to be made via the properties reception room. Cabinets and sink to be relocated and the current doorway to be repositioned. Please ensure cabinets and cupboards are an appropriate height for a wheelchair user.
5) Bathroom door to be replaced with a sliding door."
"The adaptations remain available, should Ms Ross elect to stay in her current home. Having carried out feasibility assessments, the Council remain of the view that the property can be adapted."
"I have now concluded the review of the decision to discharge duty to you by offering you 45 Springthorpe Road.
I am now writing to you as required by Section 203 of the Housing Act 1996 to notify you of our decision and the reasons for it.
Taking into account all the evidence available to us we have used our discretion and agreed that the duty to make you one further and final offer of accommodation in line with the Current Allocations Policy be reinstated."
"This decision means that the Council has a duty to take reasonable steps to secure that accommodation does not cease to be available for your occupation or secure suitable accommodation for your occupation.
Given the high demand of social housing in Birmingham, it may take some considerable time for you to receive an offer of social housing. You should therefore try to secure your own alternative accommodation to resolve your housing need whilst participating fully through the City's Choice Based Letting Scheme.
The council also reserve the right to make you an offer of suitable temporary accommodation at any time to meet its legal duty to you. If this is offered and you refuse any offer of suitable temporary accommodation, our duty to you will be brought to an end.
Although this is a positive decision, I am required to advise that under s204 of HA 1996 you do have a right of appeal to the County Court on a point of law. If you wish to appeal, you must do so within 21 calendar days of being notified of this decision. …"
"In September 2019 an email was forwarded to the Housing Options Service from the local housing team, stating that your client was having difficulties in the current accommodation and that she did not consider it to be suitable for her needs on mobility grounds. This email was not forwarded to the Housing Options Review Team until January 2020, at which time it was taken as a review of the suitability of the accommodation. On investigating, it appears that the review officer noted that there was no offer letter or discharge of duty letter and that as such the offer was in her opinion not valid for the purposes of discharging the Council's homelessness duty either as a Part 6 offer or as a final offer of accommodation. It is for this reason that the letter was issued on 13 January confirming that a further offer would be made and that the Council was effectively still under the s193 duty to secure that suitable accommodation was available for your client. It would however also appear that no decision was made at this time in relation to the specific suitability on mobility or other grounds, only that it was not a legitimate offer and therefore a further offer had to be made, which is why the letter of 13 January makes no finding in relation to suitability." (emphasis added)
"8. I have consulted with the Occupational Therapy Service regarding your client's circumstances, and it remains the case that in the opinion of the assessing officer your client's current accommodation is fully adaptable to her needs. However, given that your client has advised them that she does not want the adaptations carried out and instead wishes to pursue a move, they will not move forward on this issue. However, it is noted that your client has not placed any bids since May 2017 to date.
9. When considering the submissions made, and to the medical supporting information and the opinion of the Council's Occupational Therapy Service, I consider that at the present time it cannot be asserted that your client's current accommodation is suitable for her under the relevant legislation, and that the only conclusion is that the accommodation is unsuitable. I would however state that I consider that this situation has occurred largely as a consequence of your client accepting the accommodation as was and then a short time later refusing to allow the identified adaptations to be carried out and instead wanting to move from the property; had your client agreed to the approved adaptations in August 2019 they would have been carried out and the accommodation would have met your client's mobility needs and been suitable for her. However, given that the Council remains under the s193 duty at this time, it is apparent that the accommodation is presently unsuitable and that it is unlikely that this will change given that no adaptations are scheduled as your client has refused these to take place at this particular property.
10. I have today added your client to the "planned move|" list and requested that alternative suitable temporary accommodation is identified as soon as possible. I would however also state that given your client's very specific medical and mobility needs, it is unlikely that a suitably adapted property will be readily available to the Council. I further consider that given the submissions made in relation to your client's mobility needs it is unlikely that bed and breakfast or hostel type accommodation will be suitable for your client, and that she therefore requires a self-contained two bedroomed property which is already adapted to meet her needs or in which her mobility needs can be better met than at present.
11. With regards to securing alternative temporary accommodation, in determining the suitability of accommodation, the Council is entitled to take into account the global public health emergency and it is entitled to take account of practical constraints such as the shortage of housing stock: Poshteh v Kensington and Chelsea RLBC  UKSC 36;  AC 624. Further, accommodation that is not suitable in the long term may well be suitable in the short term: Ali v Birmingham City Council  UKHL 36;  1 WLR 1506;  HLR 41.
12. With that in mind, given these circumstances and the very specific accommodation needs of your client, I consider that your client's current accommodation is reasonable for her to continue to occupy for the time being, until alternative accommodation is identified or she is able to successfully bid for permanent accommodation via the Allocation Scheme. As I have stated, I have added your client to the 'planned move' list and the Council is actively looking for alternative accommodation.
14. I would also point out that despite being first registered on the Council's housing register in May 2017, your client has never placed any bids for accommodation through the Birmingham Choice scheme. Given that the Council operates a choice based lettings scheme, if your client is failing to place any bids for accommodation she will evidently not be shortlisted for a permanent offer of accommodation. I would also confirm that in conversation with the Occupational Therapy Service, it was confirmed that adaptations can be funded in any permanent accommodation secured by your client, so she may wish to consider placing bids for properties that can be adapted to her needs via this service, in addition to placing bids for properties that are advertised as having all of the necessary adaptations already in place." (emphasis added)
"Given the limited supply of suitable temporary accommodation available to the Council and the specific needs highlighted in your client's case, I am unable therefore to give an anticipated timescale for the provision of alternative temporary accommodation. Please rest assured that the Council will however attempt to offer such accommodation as soon as possible. I also however consider that whilst your client's current accommodation is not suitable for her needs, I do not consider that it is the case that it is immediately unreasonable for her to occupy and I consider that it remains suitable for her to continue to occupy for the short to medium term whilst the Council seeks to secure alternative accommodation that meets her very specific requirements." (emphasis added)
"I am writing to notify you that a decision has been made in respect of your recent homelessness application and that your application for assistance has been successful. We owe you a duty to make sure you have suitable accommodation. This is called a section 193(2) duty under Part 7 of the Housing Act 1996 and this letter formally notifies you that we owe you this duty."
The letter contained pro forma language addressing the position "If we have already provided you with temporary accommodation" which did not apply in Mr Al-Shameri's case, and then continued:
"If we are yet to offer you temporary accommodation we will be in contact with you the same day to make arrangements to do so unless you have agreed with us that you will remain with relatives or friends for a short period.
Our duty to you will continue until we can make you an offer of an introductory tenancy."
The letter explained the circumstances in which the duty would come to an end and that, if it did, the Council would tell him and he would have a right to review that decision. The letter then informed Mr Al-Shameri in a bold, italicised passage that acceptance of this duty "does not mean you will receive an offer of a social housing home". He was told he would need to join the housing register to be considered for social housing and details were given of how to do so. The letter continued:
"So what will happen next?
We will look to meet or end our duty to you by securing a suitable offer of accommodation for you in the private rented sector or in social housing; subject to qualifying to joining [sic] the housing register. Any offer of accommodation will only be made after we have made a full assessment of your housing needs and circumstances to make sure the offer we make you is suitable under the homeless legislation.
You will receive only one suitable offer of social housing accommodation only to meet or end our duty to you. If you refuse the offer we will have no duty to make you any further offer and you will then have to make your own housing arrangements. Please do not refuse the offer we make you thinking that the Council will change its mind and give you something else. We will make you one suitable offer only and if you refuse it no more offers will be made.
If you have any queries regarding this letter or what our duty owed to you to secure suitable accommodation means do not hesitate to email your case officer who will be happy to explain it further.
This decision means that the Council has a duty to take reasonable steps to secure that accommodation does not cease to be available for your occupation or secure suitable accommodation for your occupation.
Our duty to you will continue until one of the following actions or events brings this duty an end:
Birmingham City Council reserves the right to place bids on your behalf at any time from the date of this letter. This is called assisted bidding. Assisted bidding does not prevent you from placing your own bids, however, if you are shortlisted as being the highest placed applicant as a result of an assisted bid, we will still consider this to be your one and final offer and you should consider accepting it. Regardless of whether you refuse or accept the assisted bid offer the council will consider that it has discharged it [sic] homelessness duty to you. [This is the only paragraph in the letter that appears in red.]
You have agreed with the council to remain "homeless at home" rather than be placed in temporary accommodation. I must stress that the Council does have a duty to provide you with suitable temporary accommodation. If your circumstances changes [sic], or if you are asked to leave your current accommodation, you must contact us immediately so that we can make arrangement to provide you with temporary accommodation. Regrettably, it is not possible for us to predict at this stage where or what temporary accommodation you will be offered.
The council also reserves the right to make you an offer of suitable temporary accommodation at any time to meet its legal duty to you. If this is offered and you refuse any offer of suitable temporary accommodation, our duty to you will be brought to an end.
While this decision is a positive one for you, under Section 202 of the Housing Act 1996, you have a right to request a review of this decision. …" (Original bold; underlining added)
"I would like to confirm that I did not agree to remain homeless at home. I was not aware of the option of temporary accommodation. The first time I became aware that this might be an option was when I approached my solicitors in August 2020.
The Council accepted the main housing duty following my homeless application. I thought this would give me greater priority for a property from the main housing register (i.e. a higher band). I did not know that I could also request temporary accommodation; this was never discussed at my homeless interview."
"I do not personally remember the case in detail, but I can see from the case records, which coincide with my general practice and that of all housing needs officers in the council, that the issue of temporary accommodation was discussed with the Claimant.
In general terms when I interview an applicant I will fill in the homelessness application form with them. … As part of that process I will discuss with them whether they want temporary accommodation and will inform them that, if they do, that accommodation may be bed and breakfast accommodation for a time and could be located anywhere in the city – it is dependent on what is available on any given day.
When completing the homelessness application form, each question is asked to the customer. One of the questions is "Do you require temporary accommodation". I can see from the Claimant's application form that the question was answered "no".
The Claimant must therefore have stated that he did not want temporary accommodation. In any event, … it is my practice to discuss temporary accommodation with applicants at their interview." (emphasis added)
"…The temporary accommodation provided to your client is suitable. …
If you contend that the statutory accommodation is no longer suitable, then there is a statutory mechanism to request the Council to reconsider that issue…"
As the Council acknowledges, this letter appears to be premised on the basis that the Council had provided temporary accommodation to Mr Al-Shameri, which was incorrect: the family had remained in housing association accommodation.
"The Council accepted a full housing duty towards our client and his family on 27/04/2018 on the basis that their accommodation … was unreasonable for them to continue to occupy and to date that duty has not been discharged.
Our client did not request temporary accommodation at the time he was notified of his homeless application decision, however since that time his wife gave birth to a severely disabled child who is now two years old and their eldest child is now undertaking her GCSEs. Their home has become more unreasonable to continue to occupy and hence their request for alternative accommodation. …
Under the circumstances it is wholly inappropriate to request a review of the suitability of accommodation."
"the Council is in the process of seeking suitable alternative temporary accommodation for your clients, but has concluded that, while it does so, their current accommodation is suitable for the time being". (emphasis added)
The Council did not make an assessment of the needs of the Al-Shameri household and appears not to have considered whether No.5 is statutorily overcrowded, before deciding that it is suitable.
"…I could not accept the offer and the main reasons for this were that the accommodation was on the third floor [sic] where access is by several flights of stairs only and no lift access. At present, my disabled son … is two years old and is taken outdoors in a buggy, however he will be moved on to a wheelchair soon. Furthermore, my wife was due to give birth and the use of a buggy would also be required for the new baby. I did not see how it would be reasonably practical for us to manage two buggies and in due course a wheelchair, up and down several flights of stairs on a daily basis.
In addition, my eldest daughter … is undertaking her GSCEs in a local school in Balsall Heath and there is no direct bus to Balsall Heath from the area of the proposed property. My daughter would have to catch two buses for a single journey to school which would involve getting a bus into the city centre and a bus out to Balsall Heath. A single journey to school would take between 1 hour and 25 minutes to 1 hour and 45 minutes, without traffic. There is no bus stop near to the accommodation or outside my daughter's school so the journey time would also include walking to the bus stops.
I also have extensive family support networks in the Balsall Heath/Sparkbrook area and a move to the proposed area would leave us without this much needed support. For example, we need to take our disabled son to medical appointments on a regular basis and can ask one of our relatives to baby-sit our other children as they live close by. Our relatives do not drive so we would lose this support if we were moved far from our current area."
"An applicant's housing is unsuitable for severe medical reasons or due to their disability, but who are not housebound or whose life is not at risk due to their current housing. However, their housing conditions directly contribute to causing serious ill health and the condition of the property cannot be resolved within a reasonable period of time."
E. Practice/Policy, the Planned Move List and the Birmingham context
The evidence regarding a policy in respect of securing temporary accommodation
"When a person presents as homeless and needs temporary accommodation my team is notified. If there is a self-contained property that matches that applicant's needs and it is immediately available, they will be placed in that property. If not, the Council will rely on emergency accommodation which is usually bed and breakfast. When a family is placed into bed and breakfast accommodation, my team will immediately start to look for self-contained accommodation that matches the household's needs. This is by placing them on a document called the planned move list …" (emphasis added)
"The Planned Move List is a list of applicants to whom a full duty is owed by the Council under s.193(2). The list comprises of those applicants for whom a specific type of accommodation is required, for example an applicant who requires an adapted property, or an applicant that has a large household. In circumstances where it is more difficult to find suitable accommodation a move has to be "planned", enabling the authority to have regard to the applicant's circumstances. Whilst the list is called "The Planned Move List" it comprises those that have not yet been provided with TA, and those who have but for whom other accommodation is being sourced. The list is operated in conjunction with our Temporary Accommodation Policy (November 2018). A copy of this policy is exhibited to this statement, marked "VP5".
That policy indicates many of the factors that are taken into account when determining whether the applicant may be offered any particular property. The list is prioritised in date order, but this order is subject to any circumstances which may justify taking a case out of order (such as those listed in the policy). There is discretion to allow for complex needs, or exceptional circumstances, or medical issues, for example if a four bedroomed property that also had level access became available it might not go to the next applicant on the list if he/she did not require level access." (emphasis added)
"As Ms Pumphrey notes in her statement, there is a general, informal policy which governs the approach the Council takes to the provision of temporary accommodation and the Planned Move List is an internal operational mechanism which serves to implement the objectives of that policy."
I note that whereas Ms Pumphrey had said the PML was operated in conjunction with a formal written policy, which she had exhibited, at this stage Ms Bell said there was a general, informal policy, the objectives of which the PML served to implement.
"I am aware that, in statements in other cases, Vicki Pumphrey has suggested that we are operating a temporary accommodation policy in relation to the provision of temporary accommodation. This is not correct. There is currently no such policy in place. I did prepare a draft of a possible policy which I think was circulated to senior colleagues, but it was never approved or implemented and is therefore not in use. I believe that this draft is the document that my colleague was mistakenly referring to, as she would have been one of the colleagues to whom is was circulated. She is not involved in the allocation of temporary accommodation, and may therefore have mistakenly assumed that the draft was approved."
"In my witness statement of 6 March 2020 in the case of Elkundi I say at paragraph 26 that the planned move list is just for s193(2) accommodation [and] I reference a temporary accommodation policy. I repeat these in my witness statement on the Roberta Ross case dated 21 December 2020 at paragraph 4. I have subsequently made enquiries from my colleague Marcia Bell who has confirmed that:
a. The planned move list relates to those who require temporary accommodation under both s188(1) and s193(2) of the Housing Act 1996.
b. The policy I refer to is only a draft policy that Ms Bell had prepared but which had never been approved and is not in operation.
I apologise to the Court for any confusion caused which was completely unintentional." (emphasis added)
The Planned Move List (PML)
"The only way to keep track of how many people need to move is to keep a list. This is done by way of daily spreadsheet and it is simply a way of holding data. It is the only way the Council can keep track of the households waiting for accommodation.
People are added to this list if the accommodation they have requested is not available at the time of their request for accommodation. With regard to those to whom a main duty is owed, data is recorded as to their needs. We then wait for a suitable property then to become available. Once moved the applicant will be taken off the list.
The list sets out what size of property each applicant needs, for example the area and the number of bedrooms. When a property becomes available the Council are then able to consult the spreadsheet to locate the applicant who has been waiting the longest for that type [of] property which is then offered to the applicant.
There is discretion to allow for complex needs, or exceptional circumstances, or medical issues, for example if a four bedroomed property that also had level access became available it might not go to the next applicant on the list if there is another that specifically requires level access." (emphasis added)
"is the date on which the applicant was placed on the Planned Move List. It is in fact this date that is used by my team to determine the order on the List (i.e. by reference to who has been in the queue for accommodation for the longest period), not the TA status update date."
""Days Waiting" on the Planned Move List
The authority has taken instructions on the start point of the "Days Waiting" field in the Planned Move List, which is the day that the applicant is added to the list."
i) seven-bedroom queue: 2 applicants (highest waiting days: 3247 days);
ii) six-bedroom queue: 9 applicants (highest waiting days: 1763 days);
iii) five-bedroom queue: 32 applicants (highest waiting days: 1894 days);
iv) four-bedroom queue: 86 applicants (highest waiting days: 4628 days);
v) three-bedroom queue: 179 applicants (highest waiting days: 3388 days);
vi) two-bedroom queue: 292 applicants (highest waiting days: 3973 days); and
vii) one-bedroom queue: 106 applicants (highest waiting days: 2650 days).
"I would also like to explain that putting an applicant on the planned move list does not mean that the accommodation that they are currently occupying is considered by the council to be unsuitable immediately or even in the short to medium term. It means only that we have decided that we need to seek more suitable accommodation for the applicant's household because the current accommodation will not be suitable for their occupation in the longer term, i.e. for as long as they will probably continue to be in temporary accommodation, so more suitable temporary accommodation is needed."
"Notwithstanding this recent disclosure there are still numerous issues in relation to the legality of the PML and in relation to its transparency. It appears to operate as a non-statutory waiting list though it is not known who is included on the list other than 'households waiting for accommodation'. It is not clear who makes the decision that an applicant should go on the list. It is not made clear to an applicant whether they have been placed on the list, and if so what their position is, and whether there are any rights in relation to review. It is not clear how applicants are prioritised or by whom. It is unclear as to whether this 'system' makes any or any sufficient allowance for disability." (emphasis added)
The Birmingham context
"In 2019 it was estimated that there were 1,141,816 people living in the Birmingham local authority area. The second largest local authority was Leeds, with an estimated population of 793,139. …There are 23.3 million households in the UK, of which approximately 451,664 are in Birmingham … This is about 1.9%.
The [Ministry of Housing, Communities and Local Government] indices of deprivation from 2019 states that Birmingham is the 7th most deprived local authority in England and has 27.6% of children living in income deprived households. … I can say, from my experience, that this means that there are likely to be a larger number of homeless households than in areas with fewer income deprived households. Income deprived households tend to live in more precarious accommodation than people with more income, and also are likely to find it harder to meet their outgoings such as rent.
Homelessness in Birmingham
This experience is reflected in the homelessness figures for Birmingham. The council entertains a very substantial number of homelessness applications each year. I have reviewed the MHCLG statistics which show that for the financial year 2019 to 2020 there were a total of 304,290 initial assessments carried out across England. Of these, Birmingham carried [out] 6,569, more than any other local authority in England, with Leeds carrying out 6,482 and Manchester 5,315. In the same year, the relief duty was accepted in 139,800 cases across England. Birmingham accepted the relief duty in 4,450 cases, which is 1,500 more cases than the second placed council – Manchester City Council who had 2,906 acceptances.
In England, the main housing duty … was accepted in 40,030 cases. Again, Birmingham accepted this duty in more cases than any other council – in 2,340 cases (or about 5.85% of the national acceptance figure). Manchester had the second largest number of acceptances, at 1,444 (or about 3.6% of the national figure).
Another way of looking at the statistics is that, in England, of the homeless applications made, the relief duty is accepted on 46% of cases. In Birmingham it is closer to 68%. Likewise, in England as a whole, the main housing duty was accepted in 13% of cases but in Birmingham it was closer to 36% of cases.
These statistics are not an accident, but reflect the Council's active wish (and that of my colleagues and myself) to perform our homelessness duties fully, and not to avoid or minimise them. However, one unfortunate consequence of adopting this approach is that finding enough housing stock is a difficult challenge for the Council and for me and my team."
"Birmingham had 60,673 units of housing stock that it owns of which 58,738 were let at a social rent (as opposed to an affordable rent or on a shared ownership basis).
There were … 14,209 applicants on the council's housing waiting list, of whom 2,662 are waiting for properties with more than 3 bedrooms. Those statistics also showed that there were 4,369 applicants with one or more of the statutory reasonable preference categories for an allocation of housing by the council; of those 3,082 were owed a homelessness duty by the local authority, 1,240 were living in unsanitary or overcrowded conditions and 1,156 needed to move on medical grounds including relating to disability."
Securing temporary accommodation
"The provision of temporary accommodation under Part 7 is separate and distinct from the Council's housing list. There are essentially three sources of accommodation used as temporary accommodation for the homeless; the council's own limited stock which has been earmarked specifically as Part 7 accommodation; private sector leasing ("PSL") which is private sector accommodation procured by the Council on short leases for the purpose of letting to homeless applicants on non-secure tenancies; and private rented sector accommodation ("PRS") where applicants enter into licences or tenancies with landlords directly.
"Every morning the team receives a list of void properties. This is known as the fit for let summary. The properties are from the Council's Part VII stock (this includes private sector leased stock). As I mentioned above, the Council's Part VII stock is separate from its Part VI stock. The empty properties that have been checked as being fit to be let (so any repair work that needs to be done is carried out) are flagged and then the officers in my team manually match those properties to those on the list.
The officers do this by identifying the number of bedrooms that property has, the area it is in and whether it has any adaptations. They will then start with the person who has been waiting on the list for the longest time and see whether the property is a match. If a property has adaptations, then they will match it to the person who has been on the list the longest and whose needs match that property.
Once a match has been made the person is contacted and offered the property.
Whilst my team tries to work with the people in date order, there are some exceptions. These can include circumstances where the Police require us to make an immediate move, or the Court makes a mandatory order.
The planned move list has nothing to do with the allocation process for long term accommodation and is only used as an internal document for temporary accommodation." (emphasis added)
"Every large 4 bedroom property used for Part 7 temporary accommodation, however, denies the opportunity for someone bidding for it under Part 6, including a homeless applicant in temporary accommodation. This is therefore somewhat counterproductive for two reasons:
(i) it prevents people from moving out of temporary accommodation and therefore prevents the authority from being able to use its temporary accommodation for other families; and
(ii) if people in housing need (e.g. because their current housing is unsatisfactory) are unable to obtain accommodation from the waiting list within a reasonable time, they are likely to apply to the authority as homeless, causing even more pressure on the supply of temporary accommodation.
This is true of properties of all sizes and is why we try to avoid using the authority's own stock for temporary accommodation, so that they can be used under Part 6.
It can therefore be seen that it is a difficult balance to strike whether to make more council properties available for Part 7 use. There is a very limited supply for everyone. Every property used for Part 6 or Part 7 purposes has an impact on every other Part 6 and Part 7 applicant and therefore on the ability of the authority to satisfy homelessness demand. The decision on how to make best use of its stock whether council-owned or private sector leased, is complex and a matter of fine judgments looking at the whole of the waiting list and all the Part 7 applicants awaiting accommodation, all of whom – whether Part 6 or Part 7 – have a housing need for accommodation of the right size."
The impact of the pandemic
"Before the first national lockdown which began around 23.3.20, we had been working to reduce the number of households in bed and breakfast accommodation ("B&B"). As at 23.3.20, we had 308 cases in B&B in comparison from 23.3.20 to 31.7.20, 739 households moved into B&B. This was in part, due to the "all-in" directive from the Government which meant that even households that would not normally be eligible for a service were accommodated. During this period, we moved 283 households out of B&B, into self-contained accommodation.
Pre-COVID, between 20-40 temporary self contained properties were available each week but, during lockdown, this dropped to below 10 in some weeks and even lower than that in other weeks. This was due to our property and repairs contractors not being about to provide a full service which limited the number of properties available and increased the turnaround times."
"the Council has experienced a significantly lower turnover of housing stock than usual, for both temporary accommodation and Part 6 allocations of long term housing. The result is that the Council has even fewer properties becoming available.
Having made enquiries within the Council, the impact of the eviction ban has meant there were 30% fewer departures from temporary accommodation between 31 March 2020-31 December 2020 compared to 31 March 2019-31 December 2019. … Likewise the void availability for long term general needs housing has reduced by 420 properties (21%) during the same period."
"Whilst the stay on evictions has to some extent led to a 'freezing' in the turnover of available housing stock, it has most likely also led to a reduction in the number of persons seeking homeless assistance following eviction. The demand for housing from rough sleepers, such as there has been, is for a different type of property to that required by homeless families."
F. The legislative framework
Part VI: Allocation of permanent accommodation
"(1) Every local housing authority in England must have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose "procedure" includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.
(2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation—
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to—
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); …
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation—
(a) has the right to request such general information as will enable him to assess—
(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (3)); and
(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him;
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme." (emphasis added)
Part VII: The statutory homelessness scheme
Homelessness and threatened homelessness
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
(2) A person is also homeless if he has accommodation but—
(a) he cannot secure entry to it, or
(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy." (emphasis added)
"(4) A person is threatened with homelessness if it is likely that he will become homeless within 56 days.
(5) A person is also threatened with homelessness if—
(a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person's occupation, and
(b) that notice will expire within 56 days." (emphasis added)
The duty of inquiry
i) Is the applicant "homeless" or "threatened with homelessness"? (See section 175 and §§120 to 123 above.)
ii) Does the applicant have a "priority need for accommodation"? Section 189(1) provides:
"The following have a priority need for accommodation
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster." (emphasis added)
Additional categories have been prescribed by regulations made under section 189(2): Homelessness (Priority Need for Accommodation) (England) Order 2002 (2002/2051).
iii) Has the applicant become "homeless intentionally"? Section 191(1) provides:
"A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy".
The duty to assess and make a personalised housing plan
The relief and prevention duties
"(1) This section applies where the local housing authority are satisfied that an applicant is –
(a) homeless; and
(b) eligible for assistance.
(2) Unless the authority refer the applicant to another local housing authority in England (see section 198(A1)), the authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant's occupation for at least –
(a) 6 months, or
(b) such longer period not exceeding 12 months as may be prescribed.
(3) In deciding what steps they are to take, the authority must have regard to their assessment of the applicant's case under section 189A.
(4) Where the authority –
(a) are satisfied that the applicant has a priority need, and
(b) are not satisfied that the applicant became homeless intentionally,
the duty subsection (2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied as mentioned in subsection (1)." (emphasis added)
"(1) This section applies where the local housing authority are satisfied that an applicant is –
(a) threatened with homelessness; and
(b) eligible for assistance.
(2) The authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant's occupation.
(3) In deciding what steps they are to take, the authority must have regard to their assessment of the applicant's case under section 189A." (emphasis added)
The duties to secure accommodation
"The threshold for triggering the section 188(1) duty is low as the housing authority only has to have a reason to believe (rather than being satisfied) that the applicant may be homeless, eligible for assistance and have a priority need". (Original emphasis).
"In determining the period of time for which accommodation will be secured under section 190(2) housing authorities must consider each case on its merits. A few weeks may provide the applicant with a reasonable opportunity to secure accommodation for themselves. However, some applicants might require longer and others, particularly where the housing authority provides pro-active and effective assistance, might require less time."
"(1) This section applies where –
(a) the local housing authority –
(i) are satisfied that an applicant is homeless and eligible for assistance, and
(ii) are not satisfied that the applicant became homeless intentionally,
(b) the authority are also satisfied that the applicant has a priority need, and
(c) the authority's duty to the applicant under section 189B(2) has come to an end.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section." (emphasis added)
Powers to accommodate
"A local housing authority may discharge their functions under this Part only in the following ways –
(a) by securing that suitable accommodation provided by them is available
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
"17.2 Section 206 provides that where a housing authority discharges its functions to secure that accommodation is available for an applicant the accommodation must be suitable. This applies in respect of all powers and duties to secure accommodation under Part 7, including interim duties. The accommodation must be suitable in relation to the applicant and to all members of their household who normally reside with them, or who might reasonably be expected to reside with them.
17.7 Accommodation that is suitable for a short period, for example accommodation used to discharge an interim duty pending inquiries under section 188, may not necessarily be suitable for a longer period, for example to discharge a duty under section 193(2).
17.8 Housing authorities have a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability, until such time as the accommodation duty is brought to an end.
17.9 Housing authorities are required to assess whether accommodation is suitable for each household individually, and case records should demonstrate that they have taken the statutory requirements into account in securing the accommodation."
Statutory review and appeal
"(1) An applicant has the right to request a review of –
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195 (duties to persons found to be homeless or threatened with homelessness),
(ba) any decision of a local housing authority –
(i) as to the steps they are to take under subsection (2) of section 189B, …
(bc) any decision of a local housing authority –
(i) as to the steps they are to take under subsection (2) of section 195, …
(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7),
(g) any decision of a local housing authority as to the suitability of accommodation offered to him by way of a private rented sector offer (within the meaning of section 193), or
(h) any decision of a local housing authority as to the suitability of accommodation offered to the applicant by way of a final accommodation offer or a final Part VI offer (within the meaning of section 193A or 193C).
(1A) An applicant who is offered accommodation as mentioned in section 193(5), (7) or (7AA) may under subsection (1)(f) or (as the case may be) (g) request a review of the suitability of the accommodation offered to him whether or not he has accepted the offer.
(2) There is no right to request a review of the decision reached on an earlier review.
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision." (emphasis added)
"The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review."
"In any case they shall inform the applicant of his right to appeal to the county court on a point of law, and of the period within which such an appeal must be made (see section 204)."
Equality Act 2010
"(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of person who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
Children Act 2004
"Each person and body to whom this section applies must make arrangements for ensuring that –
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need."
The section applies to the Council as a local authority in England: section 11(1)(a) of the Children Act 2004.
G. The nature of the main housing duty under section 193(2)
Willers v Joyce (No.2)
"So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary".
The statutory provisions
Anderson, Sembi and Begum
"The real question in this case is whether it is correct to say that they have failed in their duty merely because such accommodation has, as yet, not been provided."
"(3) The authority are subject to the duty under this section for a period of two years ("the minimum period"), subject to the following provisions of this section. After the end of that period the authority may continue to secure that accommodation is available for occupation by the applicant, but are not obliged to do so (see section 194).
(4) The minimum period begins with –
(a) if the applicant was occupying accommodation made available under section 188 (interim duty to accommodate), the day on which he was notified of the authority's decision that the duty under this section was owed to him;
(b) if the applicant was occupying accommodation made available to him under section 200(3) (interim duty where case considered for referral but not referred), the date on which he was notified under subsection (2) of the decision that the conditions for referral were not met;
(c) in any other case, the day on which accommodation was first made available to him in pursuance of the duty under this section."
"The statutory scheme under the Housing Act shows that there is no time limit within which a housing authority is obliged under the statute to comply with a duty to secure available accommodation for those who fall within section 193. That is shown by reference to section 193(3) and (4) which identify a minimum period during which the authority is subject to the obligations to secure available accommodation under section 193(2) and identifies, in subsection (4), the starting date; the period is two years. Where that period has elapsed, there is a statutory obligation under section 194 to review the entitlement under section 193 after that period of two years."
"The provisions within the Housing Act, which require housing authorities to put in place an allocations policy and to comply with that policy, are contained within Part VI of the Housing Act. They demonstrate that there will be those to whom a duty is owed under section 193 of the Act who will not be housed immediately or within any particular time limit. There may be those in respect of whom, the housing authority will be under an obligation, in accordance with their allocation policy, to give a greater priority.
The very existence of an allocation scheme means that some will, unfortunately, have to wait longer than others. In this case, the applicants have been told, in correspondence, where they are on the housing list in relation to four bedroom properties." (emphasis added)
"There is a single issue in this case before me, and that is whether or not the respondent has delayed in providing suitable longer term accommodation, to the point at which it becomes right to say it has simply failed to discharge the duty which it owes to Miss Sembi."
"Bearing in mind the difficulties which a housing authority can face, and does in this case face, in finding accommodation which is suitable on a long or longer term basis for Miss Sembi, I find myself quite unable to say, even taking into account the earlier delay before sufficiently vigorous steps were taken, that the respondent has by now simply failed to discharge its duty to Miss Sembi which it owes to her under section 193 of the Act."
"It is important to remember at all times that the duty under Part VII of the 1996 Act is to house the homeless. It is to deal with those who are suddenly and through no fault of their own rendered homeless. It is not to provide them with permanent accommodation, but only with temporary. The two year period was chosen because it was anticipated that councils should be able within that time to provide permanent accommodation in their own stock after the applicant had been placed on the register which is required to be kept by section 162 of the Act (in Part VI) and which provides the only means whereby council accommodation can be provided. The discretion to extend the full housing duty beyond two years in section 194 was to cater for cases where two years was insufficient to obtain permanent accommodation."
(Section 193(3) no longer contains the two year "minimum period".)
"It is essential to bear in mind that the duties under Part VI and Part VII are separate. That under Part VI relates to permanent accommodation and involves joining a queue. The Council must have an allocation scheme which gives reasonable preference to those who suffer various disadvantages: section 167(2). One such disadvantage, which has been added to the list by regulations made pursuant to section 167(3), is that of having been homeless. Many councils have a points scheme so that the more disadvantaged families can reach the top of the queue more quickly. But Part VII contains no such recognition that there may be a delay in complying with the duty."
"Newham, like most if not all the Inner London Boroughs, has appalling difficulties in finding accommodation for the homeless, particularly if there are problems such as a large family. It contends that it is doing its best and Parliament cannot have intended that it should be required to provide accommodation when it has none available. Accordingly, submits Mr Woolf, the duty must be construed as being one to make suitable accommodation available within a reasonable time and what is reasonable will depend upon the circumstances of each case and in particular upon whether the council has the necessary accommodation available.
While I have considerable sympathy with the Council, I do not think that the qualifications which Mr Woolf submits are necessary can be read in to the words of the statute. Parliament has not qualified the duty in any way: it could have done. However, the situation for the council is not quite as desperate as might be thought. While the duty exists, no court will enforce it unreasonably. Mr Luba accepts that it would be unreasonable for an applicant to seek mandamus within a few days of the duty arising if it were clear that the Council was doing all that it could, nor, in its discretion, would a court make such an order. Indeed, permission would probably be refused. Furthermore, whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks. But there is a line to be drawn below which the standard of accommodation cannot fall. …
However, the court must bear in mind that Parliament has not qualified the duty and must not be too ready to accept that the Council is taking all appropriate steps…" (emphasis added)
"I recognise that this approach may justifiably be said to be likely to prejudice those seeking permanent accommodation from a council and to favour the homeless. But that is what Parliament has in my judgment intended. The duty to house the homeless, albeit temporarily, is unqualified: that to provide permanent accommodation depends on joining a queue and the availability of such accommodation." (emphasis added)
"With the greatest respect to Moses J. that is to confuse two duties, the one under Part VI and the other under Part VII. It may be that the confusion arose because of the way counsel argued the case, but it is clear from the scheme of the Act that the Part VII duty is quite distinct from the authority's functions under Part VI. It may be that the conclusion in favour of Southwark was justified on the facts of the case because, having regard to what the council had done, no relief was appropriate in the exercise of the court's discretion. But the council was not complying with its duty under section 193 because no suitable accommodation had been provided since the duty arose in May 1997. Mr Luba has submitted that Anderson's case is no authority on the extent of the duty arising under section 193 since Moses J was apparently being pressed with a claim based on Part VI. That may be so, in which case anything said on the section 193 duty is obiter. But I am satisfied that, if Moses J. was intending to deal with the duty under section 193, he was wrong in what he said about it and so I need not follow his reasoning: see R. v. Greater Manchester Council, ex p. Tal  Q.B. 67."
"It seems that the council had provided accommodation which it asserted was suitable. It is not entirely clear whether Jowitt J. accepted that it was suitable, but he certainly took the view that the applicant ought to have appealed to the County Court. This has enabled Mr Luba to submit that Jowitt J.'s observations were obiter. In any event, they rely on what in my view is an erroneous approach adopted by Moses J.
It may be that the result in both ex p. Anderson and ex p. Sembi would have been the same whichever approach was adopted. The flexibility of the concept of suitability and the recognition by the court that it cannot order a council to do the impossible may mean that delay in providing accommodation which an applicant feels to be suitable will be tolerated. But the court must always bear in mind that Parliament has decided that the duty is unqualified and so should not be persuaded by alleged impossibility in finding suitable accommodation unless satisfied that all reasonable steps have been taken."
"It is worth noting that both Moses J and Jowitt J appear to have been proceeding on the basis that the duty under s.193(2) is to find the applicant permanent suitable accommodation under Part VI. This may well have made them more sympathetic to arguments that the housing authority was to be given time to find such accommodation. They do not appear to have attached a great deal of weight to [the] possibility that the duty under Part VII may be discharged by the provision of accommodation which is suitable on a temporary basis. Had they done so, they might have been less receptive to arguments based on the difficulty of finding suitable alternative accommodation. In any event, I consider that Ex p Anderson and Ex p Sembi have been overtaken by the authorities discussed below, with which they are fundamentally inconsistent."
(The "authorities discussed below" to which Linden J referred were Begum, Codona, Aweys and Birmingham v Ali.)
"Collins J's analysis of the law did not preclude the possibility that a period of time would elapse between the authority's acceptance of the section 193(2) duty and the making available of alternative accommodation. But this was on the basis that the concept of suitability would, in appropriate cases, allow that the existing accommodation was "suitable" for a short period of time and that the authority therefore was not in breach. Even if the existing accommodation was not suitable, the court's discretion in relation to relief was sufficient to ensure that unreasonable orders were not made."
And see M v Newham at .
The parties' submissions regarding Anderson, Sembi and Begum
My conclusions regarding Anderson, Sembi and Begum
"So p. 34, para. 11.2 of the Department of the Environment's Code of Guidance (Homelessness: Code of Guidance for Local Authorities, 3rd ed. (1991), Department of the Environment; Department of Health; Welsh Office) says: 'The legislation makes it clear that the accommodation secured must be long-term settled accommodation, commonly referred to as 'permanent.'' In Reg. v. Brent London Borough Council, Ex parte Macwan (1994) 26 H.L.R. 528, 534 Leggatt L.J. pointed out, in my view quite rightly, that this statement was wrong. The Act says nothing of the kind. But he felt constrained by the authorities to say that accommodation under section 65(2) 'does have to be secured without limit of time, and so . . . be indefinite.' Dillon L.J. said, at p. 536, that 'the accommodation to satisfy the council's duty must . . . be 'permanent' in the sense in which that term is used in the cases.'"
"I would therefore hold that the duty of the local housing authority to an unintentionally homeless person in priority need under section 65(2) is simply to secure that accommodation becomes available for his occupation. Under the substituted section 69(1), the accommodation must be 'suitable,' but this does not import any requirement of permanence. In determining whether accommodation is 'suitable' the council is instructed to 'have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act.' This points to suitability being primarily a matter of space and arrangement, though no doubt other matters (such as whether the occupant can afford the rent) may also be material. But there is no reason why temporary accommodation should ipso facto be unsuitable. If the tenure is so precarious that the person is likely to have to leave within 28 days without any alternative accommodation being available, then he remains threatened with homelessness and the council has not discharged its duty. Otherwise it seems to me that the term for which the accommodation is provided is a matter for the council to decide. In some cases, such as a person in priority need because he is old, mentally ill or handicapped ( section 59(1)(c)), the council may decide to provide permanent accommodation as soon as reasonably possible. In other cases, such as the pregnant woman in my earlier example, it may prefer to use temporary accommodation and wait and see. But provided that the decision is not Wednesbury unreasonable (Associated Provincial Picture Houses Ltd. v. Wednesday Corporation  1 K.B. 233), I do not think that the courts should lay down requirements as to security of tenure." (emphasis added)
"whether a local housing authority discharges its duty under the 1996 Act to secure suitable accommodation for a homeless gypsy caravan dweller, with an aversion to conventional "bricks and mortar accommodation", by offering her such accommodation in the form of temporary bed and breakfast accommodation."
"33. The authorities suggest a number of basic propositions for the criteria of suitability of accommodation for offer to statutorily homeless persons. First, … "suitability" means … suitable as accommodation for the person or persons to whom the duty is owed.
34. Second, and contrary to Mr Harper's submissions on this point, the word, if it is to do its job adequately in this context, must have a broad meaning. It must, as a matter of common-sense encompass considerations of the range, nature and location of accommodation as well as of its standard of condition and the likely duration of the applicant's occupancy of it. …
35. But so also, individual cases, must the nature of the property, for example, whether it is [a] flat in a high rise block of flats or a house with stairs, or whether it is too small or too big for the applicant and his or her family. Similarly, it is obvious that location could be of great relevance to the suitability of accommodation offered to [a] particular applicant, for example, whether it is readily accessible to public transport or shops or schools or a local doctor, or whether it is in an area of high crime or racial harassment in respect of which the applicants, by reason of their race or religion might be particularly vulnerable.
36. Third, the duty to provide suitable accommodation is absolute in the sense that there is no statutory entitlement of, or duty on, a local housing authority, when determining suitability, to have regard to its resources or general practicability of offering accommodation to homeless persons. …
37. Nevertheless, as Dyson J observed in Ex p. Sacupima, at  and  of his judgment, suitability is not itself an absolute concept. It may have various levels, though there is a Wednesbury minimum depending on the circumstances of each case, below which it cannot fall. In the following passage in para.24 (seemingly accepted by this Court on appeal ((2001) 33 HLR 18, per Latham LJ at , with whom Sir Murray Stuart-Smith and Henry L.J. agreed), he explained what he meant, citing in part from a judgment of Collins J in R v Newham LBC Ex p. Ojuri (No.3) (1998) HLR 452, at 461:
"Although financial constraints and limited housing stock are matters that can be taken into account in determining suitability, 'there is a minimum and one must look at the needs and circumstances of the particular family and decide what is suitable for them, and there will be a line to be drawn below which the standard of accommodation cannot fall'. If the accommodation falls below that line, and is accommodation which no reasonable authority could consider to be suitable to the needs of the applicant, then the decision will be struck down, and an appeal to the resources argument will be of no avail."
38. And, fourth, where it is shown that a local housing authority has been doing all that it could, the court would not make an order to force it to do the impossible. Its duty was to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of that period depending on the circumstances of each case and on what accommodation was available. In Ex p. Begum, Collins J said, at 816:
"… Parliament has not qualified the duty in any way: it could have done. However, the situation for the council is not quite so desperate as might be thought. While the duty exists, no court will enforce it unreasonably. Mr Luba [counsel for the applicant] accepts that it would be unreasonable for an applicant to seek mandamus within a few days of the duty arising if it were clear that the council was doing all that it could, nor, in its discretion, would a court make such an order. Indeed, permission would probably be refused."
39. It is plain from the reasoning of Collins and Dyson JJ in those cases that suitability in this context should be regarded as an elastic concept in that the line below which no reasonable authority could consider accommodation to be suitable in an individual case is the Wednesbury line."
Aweys/Birmingham v Ali
i) Mr Ali lived with his wife and four children. He was registered disabled and one of his children was severely disabled. The Council accepted it owed him the main housing duty in June 2002. Six months later he was provided with a three bedroom property which he accepted, whilst challenging its suitability given his and his child's disabilities. In July 2003, the Council conceded their accommodation was unsuitable. More than five years later, Mr Ali remained in the same accommodation that the Council had accepted was unsuitable.
ii) Mrs Abdulle and her husband lived with their six children. The Council accepted it owed her the main housing duty in March 2003. The family stayed with friends in grossly overcrowded conditions until October 2003 when, following threats of an application for injunctive relief, the Council provided her with temporary accommodation. In June 2004, the Council offered her a three-bedroom property which she accepted, while seeking a statutory review of its suitability. The Council accepted that the duty remained undischarged. Her seventh child was born in August 2005. By October 2008, 4½ years later, Mrs Abdulle was still waiting for an offer of suitable accommodation.
iii) Mr Adam lived with his wife and five children in a two bedroom flat on the fourteenth floor of a block. In November 2005 the Council acknowledged that he was owed the main housing duty. His sixth child was born in February 2007. After the proceedings at first instance, in April 2007, he was offered accommodation which he accepted while seeking a review of its suitability. The review decision accepted the premises were unsuitable but he was still waiting, by October 2008, for an offer of suitable accommodation.
By the time the appeal reached the House of Lords, each of these applicants' cases had been resolved with the offer of suitable accommodation.
iv) Mr Aweys, his wife and six children remained living in a two-bedroom flat on the eighth floor of a block for about 16 months from when the main duty was accepted and 28 months from when he first sought to apply for assistance.
v) In Miss Sharif's case, 11 people were living in a three-bedroom flat. She was offered suitable permanent accommodation within 10 months of the main duty being accepted.
vi) Ms Omar lived with her seven children. She made a homelessness application in July 2004 based upon overcrowding, rat infestation and damp. The main housing duty was finally accepted in May 2006 and after a delay of 15 months she was suitably housed.
"applied a fixed policy to all those found homeless by operation of section 175(3) that they should wait until they were made an offer at some indeterminate future date of an alternative and long-term home usually under Part VI of the 1996 Act in order to discharge its duty under section 193" (Aweys, ).
"For the homeless at home, their existing accommodation can never be regarded as suitable, even for a short time, since they are only homeless if it is not reasonable to expect them to continue to live there."
He made mandatory orders that within a week the Council make offers of suitable accommodation to the families who did not yet have it.
"is it a lawful discharge of the council's duty under section 193(2) to leave a homeless family in the accommodation they were occupying in circumstances where they were found to be homeless because it would not be reasonable for them to continue to occupy those very premises?" (Aweys, ).
Ward LJ held that "the answer to that question is, 'No'". He reasoned that the duty under section 193(2) is to secure that "accommodation" is available for occupation by the family. The words "accommodation available for occupation" in section 175(1) and 193(2) must bear the same meaning in both sections.
"Thus if it is not accommodation for section 175(1) purposes in determining whether or not they are homeless it cannot be accommodation for section 193(2) purposes for discharging the obligation there imposed." (Aweys, )
"62. The core duty in section 193(2) is not qualified by any expression defining the time within which the duty is to be performed. Moreover, the duty is not qualified by some such word as "forthwith". Equally, it is not watered down by some such words as "as soon as possible". Nor is the duty expressed in terms of best endeavours or taking reasonable steps: cf section 195(2) set out in para 10 above.
63. We were referred to Codona v Mid-Bedfordshire District Council  LGR 241. In that case, this court held, applying the earlier decision of Collins J in R v Newham London Borough Council, Ex p Mashuda Begum  2 All ER 72 that the court would not make an order to force a local authority to do the impossible: see para 38, per Auld LJ, with whom Thomas LJ and Holman J agreed. This court added that the duty of the authority "was to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of that period depending on the circumstances of each case and on what accommodation was available".
64. This would mean that the local authority only had to provide accommodation under section 193(2) within a reasonable time. However, the point did not arise for decision and is therefore not binding on this court. Moreover, this court was stating propositions suggested by the decided authorities and did not expressly state that they were going no further than Collins J had done in Ex p Begum, the only authority cited on the point now under scrutiny. In all the circumstances, I consider that the passage I have cited neither prevents nor should persuade this court from coming to a different conclusion.
65. In my judgment, the key point is that section 193(2) is expressed in terms of producing a result, namely securing accommodation to be made available. Because the duty is expressed in terms of securing a result, and the context is homelessness, which of its nature requires some urgent action, I do not consider that there can properly be an implication into the statute that it is sufficient to comply with the duty imposed by section 193(2) within a reasonable time. However, I would not (at least without further argument) rule out the possibility that the court may decline to make a mandatory order against a local authority to perform its duty to secure accommodation for an applicant in a case where the local authority is placed in what is in effect an impossible situation: see Ex p Begum." (emphasis added)
"whether accommodation which it is not reasonable to expect the applicant to continue to occupy can nevertheless be suitable accommodation for the purposes of the duty under section 193(2)" (Birmingham v Ali, ).
"34. … Does section 175(3) mean that a person is only homeless if she has accommodation which it is not reasonable for her to occupy another night? Or does it mean that she can be homeless if she has accommodation which it is not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene?
35. The Court of Appeal in the Manchester case, the courts below in the Birmingham case, and perhaps other courts before them, have assumed that the former is the case: that section 175(3) is concerned with the reasonableness of present occupation. Obviously, once it is unreasonable for the person to stay there one more night, section 175(3) is met; the person is homeless and cannot be intentionally homeless if she leaves.
36. However, the language suggests that both sections 175(3) and 191(1) are looking to the future as well as to the present. They do not say "which it is reasonable for him to occupy" or "which it was reasonable for him to occupy". They both use the words "continue to". This suggests that they are looking at occupation over time. This suggestion is reinforced by the words "would be" and "would have been". These again suggest an element of looking to the future as well as to the present. They contrast with section 177(1) which provides that "it is not reasonable" to continue to occupy accommodation where there is a risk of violence.
37. These linguistic reasons are reinforced by the policy of the Act. The words defined in section 175 are "homeless" and "threatened with homelessness". The aim is to provide help to people who have lost the homes to which they were entitled and where they could be expected to stay. Section 175(3) was introduced for a case like the Puhlhofers (R v Hillingdon London Borough Council, Ex p Puhlhofer  AC 484), who could no doubt have been expected to stay a little while longer in their cramped accommodation, but not for the length of time that they would have to stay there if the local authority did not intervene.
38. In the Birmingham case, this interpretation has the advantage that the council can accept that a family is homeless even though they can actually get by where they are for a little while longer. The council can begin the hunt for more suitable accommodation for them. Otherwise the council would have to reject the application until the family could not stay there any longer. …
40. … the combination of section 188(1) and section 206(1) means that the council's interim duty under section 188 is to provide "suitable" accommodation. If an applicant is occupying accommodation which it is unreasonable for him to continue occupying for even one night, it is hard to see how such accommodation could ever satisfy section 188(1). Section 175(3) obviously includes such cases but does not have to be limited to them." (emphasis added)
"46. However, another tool is now available and in our view it is proper for a local authority to decide that it would not be reasonable for a person to continue to occupy the accommodation which is available to him or her, even if it is reasonable for that person to occupy it for a little while longer, if it would not be reasonable for the person to continue to occupy the accommodation for as long as he or she will have to do so unless the authority take action."
"41. This then feeds into the duty under section 193. As Lord Hoffmann said in R v Brent London Borough Council, Ex p Awua  AC 55, 68:
"there is nothing in the Act to say that a local authority cannot take the view that a person can reasonably be expected to continue to occupy accommodation which is temporary … the extent to which the accommodation is physically suitable, so that it would be reasonable for a person to continue to occupy it, must be related to the time for which he has been there and is expected to stay."
Those observations were directed to the question of when it ceases to be reasonable for a person to continue to occupy accommodation in the context of the meaning of "accommodation", but they apply equally to the point at issue here.
42. Given that an authority can satisfy their "full" housing duty under section 193(2) by providing temporary accommodation (which must of course be followed by the provision of further accommodation, so long as the section 193(2) duty survives), these observations clearly do not only apply to section 188. They emphasise that accommodation which may be unreasonable for a person to occupy for a long period may be reasonable for him to occupy for a short period. Accordingly, there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long-term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty.
47. This does not mean that Birmingham were entitled to leave these families where they were indefinitely. Obviously, there would come a point where they could not continue to occupy for another night and the council would have to act immediately. But there is more to it than that. It does not follow that, because that point has not yet been reached, the accommodation is "suitable" for the family within the meaning of section 206(1). There are degrees of suitability. What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term. The council seem to have thought that they could discharge their duty under section 193(2) by putting these families on the waiting list for permanent council accommodation under their Part VI allocation scheme. But the duty to secure that suitable accommodation is available for a homeless family under section 193(2) is quite separate from the allocation of council housing under Part VI. There are many different ways of discharging it, and if a council house is provided, this does not create a secure tenancy unless the council decides that it should. As we have already pointed out, the suitability of a place can be linked to the time that a person is expected to live there. Suitability for the purpose of section 193(2) does not imply permanence or security of tenure. Accommodation under section 193(2) is another kind of staging post, along the way to permanent accommodation in either the public or the private sector.
48. Hence Birmingham were entitled to decide that these families were homeless even though they could stay where they were for a little while. But they were not entitled to leave them there indefinitely. There was bound to come a time when their accommodation could no longer be described as "suitable" in the discharge of the duty under section 193(2).
49. It may be that, in some, or conceivably all, of the Birmingham cases, a critical examination of the facts would establish that the council were at some point in breach of their duty under Part VII of the 1996 Act. Thus the time it has taken to find Mr Ali suitable accommodation may well be beyond what is defensible. While the council were entitled in principle to leave the families in their current accommodation for a period notwithstanding that it was accepted that that accommodation "would [not] be reasonable for [them and their families] to continue to occupy" (section 175(3)), it must be a question, which turns on the particular facts, whether, in any particular case, the period was simply too long. However, the basis upon which the applicants in the Birmingham cases argued their claims (and succeeded before Collins J and the Court of Appeal) meant that it was unnecessary to consider the detailed facts of their respective cases. Accordingly, once that line of argument is rejected, there is no longer any basis for a decision in their favour."
"50. It is right to face up to the practical implications of this conclusion. First, there is the approach to be adopted by a court, when considering the question whether a local housing authority have left an applicant who occupies "accommodation which it would [not] be reasonable for him to continue to occupy" in that accommodation for too long a period. The question is of course primarily one for the authority, and a court should normally be slow to accept that the authority have left an applicant in his unsatisfactory accommodation too long. In a place such as Birmingham, there are many families in unsatisfactory accommodation, severe constraints on budgets and personnel, and a very limited number of satisfactory properties for large families and those with disabilities. It would be wrong to ignore those pressures when deciding whether, in a particular case, an authority had left an applicant in her present accommodation for an unacceptably long period.
51. None the less, there will be cases where the court ought to step in and require an authority to offer alternative accommodation, or at least to declare that they are in breach of their duty so long as they fail to do so. While one must take into account the practical realities of the situation in which authorities find themselves, one cannot overlook the fact that Parliament has imposed on them clear duties to the homeless, including those occupying unsuitable accommodation. In some cases, the situation of a particular applicant in her present accommodation may be so bad, or her occupation may have continued for so long, that the court will conclude that enough is enough."
"3. I wish also to associate myself particularly with Baroness Hale's observation, in para 36, that both sections 175(3) and 191 look to the future as well as the present. I would make the same point about the duty in section 193(2), which requires the housing authority to secure that accommodation "is available for occupation by the applicant". The equivalent provision in section 31(2) of the Housing (Scotland) Act 1987 uses the phrase "becomes available". In my opinion the effect of these two provisions is the same. In Codona v Mid-Bedfordshire District Council  LGR 241, para 38 Auld LJ said that the duty of the authority was to secure the availability of suitable accommodation within a reasonable period of time, the reasonableness of the period depending on the circumstances of each case and on what accommodation was available. Collins J took a different approach in the Birmingham case: R (Aweys) v Birmingham City Council  HLR 394. He said that it was a breach of the authority's duty for it to require families to remain in unsuitable accommodation even for a short time. I prefer the approach which Auld LJ adopted. But Collins J recommended discussion leading to agreement, not compulsion.
4. In the Court of Appeal Arden LJ disagreed with the way the duty was expressed in Codona: R (Aweys) v Birmingham City Council  1 WLR 2305, paras 62–65. She said that the duty in section 193(2) was expressed in terms of producing a result in the context of homelessness, which of its nature requires some urgent action. But the words of the subsection need to be seen in their overall context. The urgency of the action that is needed will vary from case to case, including the way the authority fulfils its interim duty under section 188(1). Each of these two duties needs to be seen in the light of what can be done in the performance of the other. There may be cases where it would not be unreasonable for a homeless person to be expected to continue to occupy for a short period accommodation which it would not be reasonable for him to occupy for a long time while the authority looks for accommodation which will release it from its duty under section 193(2). I agree with Baroness Hale that the court must have regard to the practicalities of the situation. As Auld LJ said in Codona, at para 38, the court will not make an order to force a local authority to do the impossible. On the other hand it may well feel that it is proper for it to step in where the time that is allowed to elapse becomes intolerable. The point which I wish to stress is that the description of the duty in Codona is, with respect, the one that should be adopted in preference to that recommended by Arden LJ." (emphasis added)
"92. Second, I respectfully prefer the approach of Collins J in Ex p Begum  2 All ER 72 and of the Court of Appeal in the Birmingham City Council case  1 WLR 2305 at least in so far as they held or implied that, once it is accepted or established that the accommodation currently occupied by the applicant is not suitable, the housing authority which owes the applicant a section 193(2) duty will be in breach of that duty. As Arden LJ (as she then was) pointed out, the statutory duty is not to make suitable accommodation available "within a reasonable time" although the considerations which go to the question whether the housing authority has acted within a reasonable time may be relevant to relief. I appreciate that this may be contrary to what Auld LJ said at para 38 of his judgment in Codona  LGR 241 but, as I have pointed out, he made his remarks in the context of a discussion of the concept of "suitability", which was the issue in that case, rather than the issue being as to the reasonableness of a delay in facilitating a move out of unsuitable accommodation. And, given that he agreed with what Collins J said about the concept of suitability in Ex p Begum, it is not absolutely clear whether he was describing the circumstances in which breach of statutory duty will be established or the approach which would be taken to the question of relief once it has been.
93. Similarly, I appreciate that Lord Hope expressly endorsed Auld LJ's "description of the duty" and Lord Scott agreed with Lord Hope. But they also agreed with Baroness Hale's opinion. In my judgment it was implicit in Baroness Hale's approach that reasonable delay in finding alternative accommodation would only be permissible if the accommodation was regarded as suitable for the time being, and that the housing authority would otherwise be in breach of its duty under section 193(2). Had the House of Lords considered that the duty is merely to make suitable accommodation within a reasonable time, Baroness Hale would surely have said so. Instead, as I have pointed out, the analysis in relation to the issue of principle was based on the question whether or not the existing accommodation could be regarded as "suitable", so that the authority was in fact discharging its statutory duty, and the premise for the discussion was that, if it could not be so regarded, the housing authority would be in breach." (emphasis added)
"89 I appreciate that this is not the only possible reading of the decision of the House of Lords. As pointed out above, three of the Birmingham City Council cases were ones in which the housing authority had accepted, in the context of a statutory review procedure, that the claimant's current accommodation was not "suitable". Baroness Hale might therefore have said that, on any view, the council's appeal in those cases succeeded [sic. Linden J must, it seems to me, have meant "failed"]. She did not. Indeed, as noted above, she specifically commented on one of those three cases, Ali, and indicated that he may well have established that his present accommodation was unsuitable, not on the basis that the council accepted that it was, but on the basis that he had been in the accommodation for too long.
90. In my judgment, however, the House of Lords made clear that it was confining itself to deciding the key issues of principle given the way in which the Birmingham City Council case had been argued below and that it would not decide the appeals on the basis of the particular facts of each case or any arguments which were not run below. The claimants had apparently not argued, in the alternative, that they should win on the facts in the event that the council was not automatically in breach by virtue of having failed to secure suitable alternative accommodation whilst accepting that the claimants were homeless. Nor does it appear that the claimants had argued that the council was bound by its admission of unsuitability in the three relevant cases. This may well be because, at the time of the council's decisions in these cases, the difference between the concepts of "homelessness" and "suitability" which the House of Lords identified had not been sufficiently clearly established in law, so that the council's admissions could not fairly be regarded as binding. In any event, whatever the reasons for the claimants' approach, as noted above Baroness Hale made clear that it was not open to them to succeed on any basis other than winning the issue of principle."
The parties' submissions regarding Aweys/Birmingham v Ali
My conclusions regarding Aweys/Ali v Birmingham
Conclusion on issues (1) and (2)
H. Elkundi, Ahmed and Ross: Did the Council decide their accommodation was unsuitable?
"47. However, a judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament or to a court's judgment.
49. In my view, it is therefore very important that, while circuit judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not to be accepted as a reason for overturning the decision.
50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions." (emphasis added)
Elkundi: the parties' submissions
"believed that it would be better for this family to remain where they are rather than to go into bed and breakfast accommodation which could have been anywhere in the city. It is noted that the Claimant wants accommodation as near as possible to Tyseley as his children attend schools in that area. However, we do not have any housing stock available in that area. The only option would be Travelodge and this would depend upon availability on the day. Further, the Claimant and his family would not be able to take all of their belongings to Travelodge but would have to place these into storage."
"40. The Council has not delayed in finding accommodation for this family. We have searched our own stock, as well as asked private landlords. There is simply nothing suitable for this family of seven. The family could be placed in bed and breakfast accommodation however, we would rather keep the family in a self-contained home rather than place them into such accommodation.
41. I have spoken to Grant Kennelly the review decision maker and it is apparent from those discussions that his determination that the property was unsuitable due to medical conditions was not intended to be a finding that the property was immediately unsuitable such that the authority was in breach of its duty. The decision was made in order to start the process of finding alternative accommodation but it is not considered that the property is unsuitable for the applicant to remain in for the short-term whilst those searches are carried out. The review decision therefore answers one of two issues: the first being whether the property is unsuitable in the long term such that searches should be carried out for alternative accommodation; the second being whether the family should stay there pending the securing of that accommodation. Mr Kennelly was addressing the first issue. It is the authority's position that Mr Elkundi can stay at the current property in the interim period whilst that accommodation is found." (emphasis added)
"On 3.1.20, the Council concluded that the property was unsuitable on medical grounds only, because its OT and medical advisor recommended that Mr Elkundi could not manage more than 1-2 steps access." (emphasis added)
"2. I want to clarify firstly that my decision that Mr Elkundi's temporary accommodation was unsuitable for his household, dated 3 January 2020, was on the sole basis that the accommodation did not meet Mr Elkundi's mobility needs as confirmed by the Council's Occupational Therapist.
3. Furthermore, in the letter where I stated that Mr Elkundi's accommodation was unsuitable, I did not mean that the accommodation was immediately unsuitable. I considered that he could remain at the accommodation in the short term until alternative accommodation had been identified. I set out in my letter that I had notified the temporary accommodation team of my conclusion and had requested that alternative temporary accommodation be identified as soon as possible. In making this recommendation, I was aware of the large family size and the number of bedrooms required and of the fact that alternative accommodation would most likely not be available when my decision was made.
4. If I had felt that the accommodation was immediately unsuitable for Mr Elkundi to occupy even for the short term until alternative accommodation could be identified, rather than adding his household to the "planned move" list for alternative temporary accommodation to be identified in due course, I would have emailed the manager of the temporary accommodation team and requested that the household be moved immediately, irrespective of whether the only accommodation available at this time was bed and breakfast or similar.
6. In my letter of 3 January 2020, I also attempted to manage Mr Elkundi's expectations by setting out the pressures on the Council's temporary accommodation availability which would likely result in him having to wait for alternative accommodation to be identified." (emphasis added)
"Homeless Review Request
1. [§1 was in identical terms to §1 of the Elkundi and Ahmed review decisions: see §§25 and 33 above.]
2. I have considered all the evidence and information provided for consideration of the review, including but not limited to:
- Your review request;
- Your homeless application;
- The Homelessness Code of Guidance for Local Authorities ("the statutory guidance");
- The Homelessness (Suitability of Accommodation) (England) Order 2012;
- The Housing Act 1985 ("HA1985");
- The Housing Act 1996 ("HA1996");
- The Housing Act 2004 ("HA2004");
- The Equality Act 2010 ("EA2010");
- The Children Act 2004 ("CA2004");
- Information from our records;
- Relevant case law;
3. Having given consideration to the submissions made and having completed my enquiries, I have concluded that your current temporary accommodation is unsuitable for your household on the basis of disrepair. I have notified the temporary accommodation team of my decision and have requested that you are provided with alternative suitable temporary accommodation as soon as possible.
4. I would however clarify that having considered the submissions made by your representatives, I consider that the accommodation provided is unsuitable only on the basis of the identified disrepair; this is not an acceptance that the accommodation is unsuitable for your household on all stated grounds. I consider that the accommodation is of a suitable size for your household; I consider that the accommodation is not unsuitable on the basis that the bathroom is accessed via the kitchen, or the size of the bathroom.
5. I would also state that whilst I acknowledge that the accommodation is at the present time unsuitable for your household within the meaning of the legislation this is not to state that the accommodation is immediately unfit for your household to occupy or that it would not be reasonable for you to continue to occupy the accommodation for the short to medium term until such time as a more suitable property is identified.
6. [§6 was in identical terms to §3 of the Elkundi review decision.]
7. [§7 was in identical terms to §4 of the Elkundi review decision and § 3 of the Ahmed review decision.]
8. [§8 was in identical terms to §5 of the Elkundi review decision and §4 of the Ahmed review decisions.]" (emphasis added)
Elkundi: decision on the meaning of the review decision
"The court can and, in appropriate cases, should admit evidence to elucidate or exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex p. Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons."
Ahmed: the parties' submissions
"Whether a property is suitable has a temporal element. What is not suitable in the long term may be suitable for occupation in the short term. Taking this into account, the Council's decision of December 2019 was that the Claimant would be moved as soon as possible. Unfortunately, the Covid pandemic has rendered it not possible to offer alternative temporary accommodation over the last few months.
The limited extent of the overcrowding together with the unprecedented demand for temporary accommodation during the pandemic means that the Council currently considers the Claimant's present temporary accommodation to be reasonable for his continued occupation for a further period of time." (emphasis added)
"The council does not currently have any 5 bedroomed properties available in its housing stock but is attempting to source such accommodation. In all the circumstances, particularly the impact of the current Covid pandemic on:
(a) the supply of temporary accommodation (which has had to be used for rough sleepers not normally owed a homelessness duty) and
(b) the ability of the council to obtain possession of stock due to the stay on possession proceedings and the statutory lengthening of notices of seeking possession to 6 months your client's current accommodation is reasonable to continue to occupy "for the time being".
With regard to securing alternative temporary accommodation, in determining the suitability of accommodation, the Council is entitled to take into account the global public health emergency and it is entitled to take account of practical constraints such as the shortage of housing stock: Poshteh v Kensington and Chelsea RLBC  UKSC 36;  AC 624. Further, accommodation that is not suitable in the long term may well be suitable in the short term: Ali v Birmingham City Council  UKHL 36;  1 WLR 1506; 2009] HLR 41. With that in mind, in these most unusual circumstances the Council's view is that the current accommodation is reasonable to continue to occupy for the time being, until alternative accommodation is available or your client is able to successfully bid for long-term accommodation under the allocations scheme." (Original bold emphasis; underlining added)
"It was not until the statement of facts and grounds that the Claimant informed the Council that his eldest daughter is not residing at the Property, she is living with her mother … This clearly impacts on the suitability of the accommodation as it may no longer be overcrowded."
"I would also like to explain that putting an applicant on the planned move list does not mean that the accommodation that they are currently occupying is considered by the council to be unsuitable immediately or even in the short to medium term. It means only that we have decided that we need to seek more suitable accommodation for the applicant's household because the current accommodation will not be suitable for their occupation in the longer term, i.e. for as long as they will probably continue to be in temporary accommodation, so more suitable accommodation is needed."
Ahmed: decision on the meaning of the review decision
Ross: the parties' submissions
"6. In undertaking the review, I sent a letter dated 14 October 2020 setting out my decision ("the first letter"). …
7. At paragraph 9 of this first letter, and my review decision (23 October 2020), I said that, having had regard to the information from the Occupational Therapy Service and the claimant's refusal to have adaptations carried out, at the present time it could not be asserted that the accommodation was suitable. This reflects the fact that, if … the property had been subsequently adapted, it would have been suitable to the claimant's needs for the long term. What I meant here, was that, at date of my letter, the property could not be considered suitable for the long term because of the claimant's refusal to have the adaptations carried out.
8. In paragraph 10 of my first letter (and in my review decision) I advised that the claimant had been moved to the Planned Move List, and that I had requested that suitable alternative accommodation be identified as soon as possible. I also advised that, given the claimant's very specific medical and mobility needs, it was unlikely that a suitably adapted property would be readily available. I noted also that B&B would be unsuitable as temporary accommodation.
9. Given that I had advised that it was unlikely that a property that suited the claimant's very specific requirements and that B&B would be unsuitable, I was plainly explaining that, in the circumstances, the most suitable option then available for the claimant to remain where in her current home. [sic]
10. In the first letter, at paragraph 11, I went on to say that whilst I did not consider the accommodation suitable to the claimant's needs in the long term, I did not consider that it was immediately unreasonable for her to occupy and that it remained suitable for the claimant to occupy for the short to medium term. It is my understanding that I was entitled to come to such a conclusion, following the decision in Ali v Birmingham City Council  UKHL 36.
11. The claimant's solicitors replied by letter dated 19 October 2020, … in which they said that they were puzzled by my letter. They asserted that I had, in effect, concluded that the accommodation was temporary accommodation "is unsuitable and suitable" [sic]. The claimant's solicitors asked me to "withdraw … the final sentence of paragraph 11".
12. They went on to say, however, that they were encouraged by the fact that Ms Ross had been placed on the Planned Move list, asked that suitable alternative accommodation be identified as soon as possible and asked that any suitable accommodation offered be in the Handsworth or Handsworth Wood area. They said that they would liaise with their client to see what offers are made to her. They advised that if not "suitable offers" were made, they reserved the right to serve a pre-action protocol letter. [sic]
13. Before I was able to respond to their letter, the claimant's solicitors sent a pre-action protocol letter the next day, on 20 October 2020, in which they said that they had spoken to their client on 19 October 2020 who confirmed that she had not been contacted by the Council with an offer. The claimant's solicitors also said that they considered my decision that the property was suitable in the short term to be irrational. …
14. I sent a revised review decision on 23 October 2020, in response to the claimant's letter of 19 October, in which I repeated paragraphs 1-10 of my first letter. I replaced of paragraph 11 of that letter with two paragraphs:
"11. With regard to securing alternative accommodation, in determining the suitability of accommodation, the Council is entitled to take into account the global health emergency and … practical constraints … Further, accommodation that is not suitable in the long term may well be suitable in the short term: Ali v Birmingham City Council  UKHL 36;  1 WLR 1506;  HLR 41."
15. In saying this, I was explaining that in relation to the provision of suitable temporary accommodation the Council is entitled to take into account practical constraints and that accommodation that is not be suitable for the long term, can be suitable in the short term. Clearly, I was applying these considerations to Mrs Ross' case, and that she would be occupying the property in the short term to medium term.
16. In responding to the claimant's solicitors' apparent confusion, I referred to the case of Ali because it provides that which is unsuitable in the long term, can be suitable in the short term. In other words, a property can be suitable and unsuitable. I then went on to say, paragraph 12, "with that in mind …" This is a reference back to the immediately previous paragraph of my letter, where I had expressly said that which is not suitable in the long term, may be suitable in the short term. With these factors in mind, applying them to Ms Ross' accommodation, I considered that this property (unlike B&B accommodation) was suitable in the short to medium term – I went on to conclude that, given the very pressing constraints, it was reasonable for the applicant to continue to occupy the property for the time being.
17. I appreciate that I could have stated this more clearly, and that my letter [sic] was clearer on this point, but it is clear that I was considering the claimant's occupation of the property in the shorter term and that I noted that such accommodation could be suitable in the shorter term. I had only ruled out B&B as being unsuitable. I believe the letter conveyed my decision that the property was suitable in the shorter term, whilst steps were taken to find alternative more suitable accommodation as soon as possible." (Italics in the original, underlining added)
Ross: decision on the meaning of the review decision
I. Elkundi, Ahmed and Ross: Is the Council in breach of the main housing duty?
The parties' submissions on the applicability of a one way functus officio rule
"Once a public authority exercising a statutory power has decided how the power is to be exercised, it will lack further authority and be functus officio. Any later attempt to remake the decision will be outside the authority's powers (ultra vires). Aside from these limits on powers, there is a strong and obvious public policy interest in finality, which allows individuals to rely on statutory decisions without having to worry that they may later be changed. Nevertheless, in the interests of justice and of good administration there are certain limited circumstances in which public authorities can reconsider final decisions: where there has been fraud (R (Southwark London Borough Council, Ex p Dagou (1995) 28 HLR 72)); or fundamental mistake of fact (Porteous v West Dorset District Council  LGR 577). Moreover, an authority is not to be taken to have made a final decision where its inquiries are incomplete: Crawley Borough Council v B (2000) 32 HLR 636."
"The Act does not allow for the withdrawal or review of a favourable decision, only an unfavourable one via review and appeal under sections 202 and 204."
"Housing authorities have a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability, until such time as the accommodation duty is brought to an end."
Conclusions on the applicability of a one way functus officio rule
Conclusions on Ground (1) in Elkundi, Ross and Ahmed
J. Al-Shameri: Grounds 1 and 3
Alleged past breach of section 193(2): 27 April 2018 to 23 November 2020
"The statute provides that, if an authority has reason to believe that the applicant may be homeless and in priority need, then it must secure that "suitable" accommodation is available for his occupation. As I have explained (see  and [86(ii)] above), that involves an evaluative exercise by the authority, which might conclude that the accommodation occupied by a homeless at home applicant is "suitable" for him to occupy temporarily, for the whole (or at least part) of the period in which the homeless application is being considered. However, the Council do not make an assessment of "suitability". As a matter of policy, if it considers an applicant may be homeless and in priority need, then it will provide him with interim accommodation, if he requires it. If the applicant indicates that he does not require it because (e.g.) he prefers to stay in his current accommodation, or at family or friends, until the homeless application has been determined – the accommodation the applicant voluntarily stays in is, equally, not assessed for suitability by the Council. This policy – of course more generous than the statutory requirements – is key to an understanding of how the Council purport to comply with its statutory duty under s.188 to provide interim accommodation pending a housing application decision.
As I have said, the policy is that, if the Council considers an applicant may be homeless and in priority need, then it will provide him with interim accommodation, if he requires it. However, the evidence is that many applicants, although satisfying the s.188 criteria, prefer to remain in their current accommodation (if they have it) or stay with friends or family pro tem), whilst their homeless application is processed. In these circumstances, the Council does not seek to assess the current accommodation for suitability: it relies upon the applicant's "self-certification" of the fact that the relevant accommodation is such that the applicant can reasonably be expected to stay there temporarily. Of course, as the Local Government Ombudsman's report "Homelessness: How councils can ensure justice for homeless people" (July 2011) (the LGO July 2011 Report) emphasised (at p.5): "People must be made aware of their right to make an application if they wish to". However, so long as the applicant is aware that he is entitled to interim accommodation until a decision is made on the homeless application – and so can make an informed initial decision, and knows that he can return to the Council at any time to request interim accommodation – there is nothing objectionable in this." (emphasis added)
"Waiver of right to be provided with accommodation
This subject arose in the course of argument. A person who is accepted to be homeless at home may be offered alternative accommodation on a temporary basis: see Ex p Awua  AC 55. He may, however, in practice prefer to stay where he is until some more permanent accommodation is available for him. I see no difficulty in law in an applicant, if he chooses, opting to stay where he is while the local authority seeks more permanent accommodation which it is reasonable for him to occupy, but as he would be giving up his statutory right to be accommodated in that temporary accommodation, and on general principle, he would have to give a fully-informed and free consent."
Alleged ongoing breach of section 193(2): 23 November 2020 to the present
"In the broadest of terms, the principle of legitimate expectation is based on the proposition that, where a public body states that it will do (or not do) something, a person who has reasonably relied on the statement should, in the absence of good reasons, be entitled to rely on the statement and enforce it through the courts. Some points are plain. First, in order to found a claim based on the principle, it is clear that the statement in question must be "clear, unambiguous and devoid of relevant qualification", according to Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd  1 WLR 1545, 1569, cited with approval by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  1 AC 453, para 60." (emphasis added)
Lord Neuberger's statement of the general principles, although given in the Privy Council, reflects the leading judgment of Lord Hoffmann in Bancoult (No.2) and has been adopted by the Court of Appeal (see, e.g. R (Hely-Hutchinson) v HMRC  1 WLR 1682, per Arden LJ at ).
K. Is the Council operating an unlawful system for the performance of its duty under section 193(2)?
"as potentially being of assistance in deciding whether to take the relatively unusual step of making a mandatory order in this type of case. Without suggesting that he was proposing an exhaustive account of the relevant factors in relation to the court's discretion Scott Baker J considered, first, the nature of the temporary accommodation being occupied by the family; second, the length of time for which the housing authority had been in breach of its statutory duty; third, the efforts which had been made by the authority to find suitable accommodation; fourth, the likelihood of accommodation becoming available in the near future (an order might not be made if there was an undertaking to provide accommodation in the near future); and, fifth, any of the other particular factors in the case."
"I am not able to offer expert structural advice on the ability to suitably adapt Mrs Ross's existing property, but my level of expertise leads me to an opinion that this particular property could not be fully, suitably adapted to create access of all areas; mainly because of the architectural layout with the narrow hallway from which the kitchen, wet-room and lounge are accessed."
However, I accept the Council's evidence that it has undertaken feasibility assessments, in light of which the Council remains of the view that the property can be suitably adapted. I also note that Mrs Ross has had difficulties in her current accommodation with what she describes as "toxic fumes". Mrs Ross is not alone in having noticed a problem; a carer and an occupational therapist have noticed it, too. But numerous gas safety checks have been undertaken and have found no evidence of any carbon monoxide or other gas leak, or any toxic fumes. So the reason Mrs Ross's accommodation is unsuitable is solely due to it not having been adapted.