Croydon accepted that it had failed for years to secure suitable accommodation for Ms Imam, a wheelchair user. The Supreme Court considered what a council must show if it admits a breach of its housing duty but says that a court order would be impossible to carry out.
The breach
Croydon accepted that it owed Ms Imam the main homelessness duty under section 193(2) of the Housing Act 1996. It had to secure accommodation suitable for her occupation. The duty had not come to an end.
In 2014 Ms Imam moved into temporary accommodation provided by Croydon. In June 2015 the council accepted that the house was unsuitable because she could not use a level-access toilet upstairs at night. It offered no suitable alternative. Nothing turned on whether the breach began when she moved in or when Croydon accepted the house was unsuitable.
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Ms Imam sought an order requiring the council to secure suitable accommodation. Croydon relied on the shortage of adapted homes, considerable demand and budgetary pressures. It said other applicants had waited longer or had higher priority.
The two housing regimes
Part 7 contains the duty to secure accommodation for eligible homeless people. It may be discharged by securing suitable accommodation from the authority or someone else, or by advice and assistance which secures it. Part 6 concerns longer-term allocation, including by secure tenancy, under an allocation scheme which the authority must follow. The regimes are separate but interact: a person owed the section 193(2) duty is entitled to reasonable preference under a Part 6 scheme, and a Part 6 allocation can end the main duty. A secure tenancy cannot be granted merely because accommodation is being provided under section 193(2).
The courts below
The High Court refused an order. The judge considered the effect on other applicants, the council’s continued search and the resources available to buy or adapt a home. He was concerned that giving Ms Imam a permanent home would unfairly move her ahead of others in the allocation scheme.
The Court of Appeal allowed her appeal on this issue, set aside that refusal and remitted the claim so that both sides could file fresh evidence. Lewis LJ, with whom Peter Jackson and Underhill LJJ agreed, held that there is a discretion, but that the authority must demonstrate all reasonable steps and the particular difficulties. A general reference to demand, shortage or budgetary constraints is not enough. Croydon might have to explain how many properties of the required type it had and why they were being reserved for discretionary Part 6 allocation rather than used, even temporarily, to meet the Part 7 duty. The condition of the house, its effect on the family, the length of the breach and the limited supply of suitable properties could still be relevant.
Duty and discretion
Lord Sales, with whom Lord Lloyd-Jones, Lord Leggatt, Lord Richards and Lord Burnett agreed, dismissed Croydon’s appeal but rejected Ms Imam’s argument that resources are irrelevant except perhaps in exceptional cases.
The duty is personal to the applicant and enforceable by judicial review. Parliament did not make it conditional on the council’s finances. Lord Sales reserved the question whether suitable accommodation must be available at the very instant the duty arises. That made no difference in a case where the breach had lasted years.
Public law remedies are nevertheless discretionary. A remedy should ordinarily follow a proven breach, and refusal needs clear justification. A mandatory order is especially significant because it takes the matter out of the authority’s hands and can expose officers to contempt proceedings. The court will not order the impossible, both because its process should not be invoked in vain and because people should not be punished for failing to do what they cannot do. Some delay may be allowed while arrangements are made, but impossibility is not accepted unless all reasonable steps have been taken.
The onus is on the authority to give a detailed explanation. Whether it has taken all reasonable steps is an objective question for the court, not a question of whether the authority’s own view was rational. The Court of Appeal was right that Mr Beasley’s evidence was too general. Suitable wheelchair-accessible properties might be designated for Part 6 or Part 7. Meeting Ms Imam’s Part 7 need was a legal duty; making property available for Part 6 allocation was discretionary, although allocation under the scheme then had to follow it. Limited resources must be used first to meet duties rather than mere discretions. Treating the two as equivalent was a legal error.
How far resources can matter
Ms Imam said Croydon should be ordered to comply even if no suitable property was currently available, if necessary by diverting funds or borrowing. Lord Sales held that this went too far. An authority must balance many duties and discretions against its income. A court lacks the democratic authority, information and expertise to reconstruct a finalised budget, and cannot reliably tell which other statutory duties an order would compromise. There is no insolvency-style mechanism for sharing scarce resources equally. A mandatory order can give one duty a super-added priority and should not disrupt that settled balance without good justification.
Possibility is ordinarily judged at the time of the proceedings, though not invariably. Five points guide the discretion. A contingency fund may provide a way of complying with minimal disruption, and the authority should explain why it cannot be used. Prolonged inaction after notice makes enforcement more important; because budgeting is decided at council level, the court may need to know when that level became aware of the problem. The impact on the individual matters. A very serious and pressing need may justify an immediate order despite disruption, whereas lesser impact may point towards a suspended order or a quashing order. The unsuitability here was comparatively limited, though not trivial, and a claimant should ordinarily prove its effect. Absence of any sign that the authority is putting matters right favours an order. Finally, the claimant must not gain an unfair priority over others with an equal or better claim. She cannot jump the Part 6 queue for permanent housing. If her need competes with others who are also owed the section 193(2) duty and require adapted accommodation, Croydon should put proposals before the court.
Verdict: The Supreme Court unanimously dismissed Croydon’s appeal. The High Court would reconsider the application for a mandatory order on fresh evidence. The Supreme Court did not decide whether that order should be made.
Source: R (on the application of Imam) v London Borough of Croydon [2023] UKSC 45
