The Supreme Court in R (on the application of Imam) (Respondent) v London Borough of Croydon (Appellant)  UKSC 45 has unanimously held that general funding pressures are not an excuse for non-compliance with a local authority's duty under s193(2) of the Housing Act 1996 to provide suitable accommodation to a homeless individual.
However, the court should consider a local authority's resources and extent of its housing portfolio when deciding whether to grant a mandatory order rather than some other relief.
Background to the appeal
There was never any dispute that the accommodation The London Borough of Croydon had provided to Ms Imam was unsuitable, having regard to her disability. The local authority argued that it had simply done its best.
At first instance, the High Court refused to make a mandatory order requiring the local authority to secure suitable accommodation for Ms Imam, because it had done "what it reasonably can, consistent with the proper application of its policies and the limited resources available to it, to fulfil its statutory duty" (para 81(i)).
The Court of Appeal, while confirming that mandatory relief was a discretionary remedy for the court, allowed Ms Imam's appeal against the refusal to grant a mandatory order, making the following findings.
- Financial constraints cannot justify non-compliance with the duty and would not in themselves justify refusing to grant an appropriate order to bring about compliance with the duty (para 131).
- It was for Croydon to demonstrate why a mandatory order should not be granted, "with sufficiently detailed evidence" on "the steps it has taken, and the reasons why suitable accommodation has not been forthcoming. References to the general difficulties facing housing authorities, or the lack of availability of suitable properties, may not persuade a court" (para 132).
- In particular, the local authority may need to explain the number of suitable properties it has available and why it is not possible or appropriate to use those for the grant of unsecured, non-permanent accommodation under Part VII rather than, for example, to allocate them to those waiting for secured accommodation under Part VI (para 134).
- It was, therefore, appropriate to remit the case to the High Court for that issue to be examined in greater detail.
Croydon appealed to the Supreme Court, saying the High Court was right and the Court of Appeal was wrong. Ms Imam also complained about the Court of Appeal's focus on whether Croydon had any suitable properties in its portfolio, arguing that a mandatory order should have been made even if the local authority had no suitable property currently available in its portfolio, in effect requiring it to buy one.
The Supreme Court's judgment
The Supreme Court unanimously dismissed Croydon's appeal. It also rejected Ms Imam's complaint about the Court of Appeal's focus on Croydon's existing property portfolio.
The starting point is that housing authorities are subject to a duty under Part 7 of the Act which has been imposed by Parliament and is owed to Ms Imam, unqualified by any reference to available resources . It is not for a court to modify or moderate that duty by routinely declining to enforce it through mandatory orders on the grounds of insufficient resources .
However, remedies in public law are discretionary . That discretion has to be exercised in accordance with principle and in a non-arbitrary way . In particular, the court will consider alternative remedies, such as quashing orders which oblige authority to re-take decisions rather than mandating them to do specific things , not order a person to do what is impossible [46-50], and will have regard to the additional impact a mandatory order which "may have the effect of disrupting existing plans for the allocation of the authority's resources" [51-53].
The onus was on the housing authority to explain to the court why a mandatory order should not be made to ensure it complies with its duty . That may involve giving evidence about the extent of its portfolio of suitable properties and explaining why any such property which might be assigned for allocation as discretionary council housing under Part VI could not be used instead to meet its statutory duty under Part VII of the Act [56-58].
If a housing authority does satisfy the court that a mandatory order would require it to divert into its housing budget resources, which it requires to meet its other responsibilities, to buy or adapt a suitable property, it would be wrong for the court to make a mandatory order. To do so would be an unjustified interference with the democratic authority and institutional competence that a housing authority enjoys by comparison with a court [60-63].
The Supreme Court went on to give some specific guidance on the exercise of the court's discretion to grant mandatory orders in cases of this kind:
- If there is a general contingency fund to deal with unexpected calls for expenditure, the authority should explain why this cannot be used .
- The length of time an authority has been on notice of its breach is relevant. The court cannot encourage housing authorities to disregard their duties .
- The more serious the impact of the non-compliance on the individual, the more compelling the grounds for making a mandatory order .
- If there is no sign that the authority is moving to rectify the situation and satisfy the individual's rights, that is a factor pointing in favour of the making of a mandatory order .
- The court should take care not to give a claimant undue priority over others who may have equal or better claims, but there is a distinction between a mere discretion to allocate property under Part 6 and the statutory duty owed under section 193(2) of Part 7. Housing authorities will need to submit proposals to the court on how to proceed with respect to any competition between individuals owed duties under section 193(2) .
The case was remitted to the High Court for consideration of fresh evidence from Croydon.
What does the decision mean for local authorities and homeless individuals?
The Supreme Court's decision is an endorsement of the middle way found by the Court of Appeal. While the case is likely to lead to an increase in the number of mandatory orders made, it does give housing authorities a line of defence and has thus widened the battleground for those practising in this area.
Since the Court of Appeal's decision, housing authorities have been required to file considerably more evidence on their allocation of resources in these kinds of cases. That will continue. Local authorities may wish to again review the rationale for the allocation of their resources, and in particular, how adapted properties in their portfolios are allocated for use under Part 6 and Part 7, and why.
Practitioners acting for homeless individuals in these kinds of cases will wish to review their caseload, and marshal arguments for why only a mandatory order will do.