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The Supreme Court has today (28 November 2023) handed down judgment in Croydon LBC v Imam (Crisis intervening) [2023] UKSC 45. The case concerns the approach to be taken by the High Court when faced with an application for an injunction to compel compliance with the duty in s.193(2) of the Housing Act 1996 (the “full” or “main” housing duty) but will likely be of relevance to many areas of public law and cases involving the balancing of individual rights against hard-pressed local authority budgets.
Background
Where a person applies to a local authority in England for homelessness support and the authority determines that they are eligible for assistance (referable to immigration status), homeless, in priority need and that they did not become homeless intentionally, then the authority must secure that suitable accommodation is provide for the homeless person (s.193(2)). It has previously been held by the courts that (a) this is an “immediate” and “non-deferrable” duty (see R (Elkundi) v Birmingham [2022] EWCA Civ 601) and (b) a person who is owed the s.193(2) duty, but who is not provided with any accommodation or with any suitable accommodation, may seek an injunction from the High Court to compel compliance with that duty.
The proceedings in the High Court and Court of Appeal
Ms Imam was a wheelchair user with three children. She was homeless and, in 2014, applied to Croydon LBC for support under the homelessness legislation (Part 7, Housing Act 1996). The authority decided that she was owed the s.193(2) duty and provided her with some accommodation, albeit accommodation which it accepted was not “suitable”.
Ms Imam brought a claim for judicial review and sought a mandatory order requiring the authority to secure suitable accommodation for her and her family. The High Court rejected her claim; the Deputy Judge accepted that the budgetary pressures on the authority were so acute that they provided a valid excuse for failure to provide suitable accommodation.
The Court of Appeal allowed an appeal. The Court held that where the authority was in breach of statutory duty, it was for the authority to show why a mandatory order should not be made. References to general budgetary pressures were not sufficient to prevent a mandatory order from being granted and detailed evidence was necessary to persuade the courts not to grant such an order (which had not been provided by Croydon LBC in this case).
Croydon LBC appealed to the Supreme Court. Given that the judgment had the potential to affect hundreds of thousands of homeless households, Crisis were permitted to intervene to address the wider consequences of the argument advanced by Croydon LBC.
The Supreme Court’s judgment
The Supreme Court dismissed an appeal by the authority. It considered that Parliament had imposed the s.193(2) duty without any reference to resources. It would undermine that duty if the courts were to permit routine breaches of the duty by reference to generalised claims relating to insufficient resources. Such duties were imposed by Parliament on the assumption that an authority would comply and would find the resources and the courts should not undermine that statutory purpose by accepting vague or unparticularised excuses or evidence.
Where an authority were in breach of the s.193(2) duty, it was for the authority to explain why a mandatory order should not be made in order to compel the authority to comply with the law. That evidence needed to be detailed and, for example, deal with what adapted properties were available to Croydon, even if presently ear-marked for some other purpose (e.g. for allocation via the housing waiting list under Part 6, Housing Act 1996).
That is not to say that a mandatory order would always be appropriate. Remedies in public law were discretionary and the courts lacked the democratic foundation to re-allocate resources within public authority budgets. The Supreme Court identified five factors of general importance to aid High Court judges in such cases:
(a) First, does the local authority have any contingency fund, even if not earmarked for this particular purpose?
(b) Secondly, how long has the breach of statutory duty been continuing? A court must not encourage a decision to act in breach of a statutory duty.
(c) Thirdly, how is the breach affecting the claimant?
(d) Fourthly, is the authority taking steps to remedy the breach?
(e) Finally, the court must be careful not to give the claimant undue priority over others who may have an equal or better claim to support under the statutory scheme.
The case was remitted to the High Court for the parties to lead evidence and present argument on these factors.
Justin Bates, Harriet Wakeman and Barney McCay acted for Crisis, instructed by Giles Peaker at Anthony Gold solicitors.
