AC-2025-LON-001949 - [2025] EWHC 2425 (Admin)

Discussion and Decision

The Claimant seeks declaratory relief and a mandatory order that the Defendant provide suitable temporary accommodation within 14 days. Mr Nabi argues that “the proper administration of justice and the requirement that the court uphold the law mean that the Claimant should be granted declaratory and mandatory relief in vindication of his rights secured suitable accommodation by the Defendant.”

In his skeleton argument, Mr Peacock argued that no relief should be ordered and that the claim for judicial review should be dismissed.

Declaratory relief

In the Defendant’s skeleton argument for the hearing, Mr Peacock submitted:

“The Defendant accepts that it has been in breach of the duty under section 193(2) to C since 15.5.25 (when it accepted that duty) in that it has failed to secure suitable accommodation for the Claimant. Given that that is not in issue, no purpose would be served by the court granting a declaration to that effect”.

As noted above, in oral submissions Mr Peacock did not pursue that argument with any vigour and accepted that the Court could well conclude in the circumstances here that declaratory relief (at least) should be granted. I agree. To decline declaratory relief in these circumstances would be inconsistent with the principle that where a breach of law is established the ordinary position is that a remedy should be granted. A claimant who establishes that a public body has acted unlawfully will normally be entitled to a declaration, albeit that the grant of any relief in judicial review proceedings is always discretionary.

In my judgment in the circumstances of this case it is appropriate to grant declaratory relief.

A mandatory order

The Defendant has invited me to conclude that it has taken all reasonable steps to identify suitable accommodation for the Claimant and that as a result no mandatory order should be granted.

For the purposes of my decision on this issue I have not had to determine the competing views in relation to the effect of the Public Sector Equality Duty. In considering whether I should make a mandatory order my starting point is that I should proceed cautiously in exercising my discretion to refuse make an order and I should only do so where that course is clearly justified. The onus is on the Defendant to explain why a mandatory order should not be made and to provide a detailed explanation of why it would be impossible to comply with an order.

The Defendant has rightly accepted that there are significant factors in favour of granting a mandatory order. It has accepted that the agreement with the Ombudsman was factor in favour of the grant of a mandatory order. Similarly, the Defendant has accepted that the exacerbation of the Claimant’s psychiatric condition points to the grant of a mandatory order as well as the fact that the Defendant had been found guilty of maladministration in the Claimant’s case.

I accept that the length of time a local authority has been in breach of the s.193(2) duty can be a relevant factor. Mr Peacock has fairly pointed to the differences between the periods in Imam and Elkundi and the period of time here. There is a limit however to the utility of making direct comparisons between different cases as decisions of this nature are inherently fact-sensitive. Moreover, the section 193(2) duty is an immediate, non-deferrable, unqualified duty.

There is insufficient evidence before me to conclude that a mandatory order would serve no purpose as suitable temporary accommodation is likely to be provided shortly. In fact, both parties emphasised that the reference in Ms Peterkin’s second statement at paragraph 8 (referred to above at paragraph 44 of this judgment) offered no certainty that suitable accommodation would be found. As noted above, the position remains unchanged since Ms Peterkin’s second statement.

In my judgment, the Defendant has not sufficiently explained why a mandatory order should not be made to ensure that it complies with its duty. The evidence supplied by the Defendant has focused on the generic problems it faces in discharging its duty under s.193(2) of the 1996 Act. As to that evidence, it is relevant that the Defendant can subsidise rent payments above the local housing allowance rates in the private sector and can utilise its own housing stock. The Claimant’s housing needs are less complex than in other cases: for example, there is no requirement for a specially adapted property. What is required is simply three bedroomed accommodation within 45 minutes of the Chelsea & Westminster Hospital.

As I have noted above, there is a paucity of evidence addressing the steps that it has taken specifically in relation to the Claimant. Most importantly, the Defendant has entirely failed to address why it is now said to be impossible to comply with a mandatory order when it had agreed with the Ombudsman in March 2025 that it would provide suitable temporary accommodation within a month. The Defendant has been on notice of the possession proceedings throughout and as long ago as 30 April 2024 stated that the housing officer had been asked to request temporary accommodation “immediately” after a possession order was made. I accept Mr Nabi’s submission that the failure to address the Ombudsman’s decision is a significant lacuna in the Defendant’s evidence.

In my judgment there is insufficient evidence before me to conclude that the Defendant has taken all reasonable steps to fulfil its duty to the Claimant under s.193(2) of the 1996 Act. As such the Defendant has not established that it would be impossible to comply with a mandatory order.

I do not accept the Claimant’s argument that I should make a mandatory order that suitable accommodation should be provided within 14 days of the order having been made. Equally I do not accept the Defendant’s argument that the mandatory order should require suitable accommodation being provided within twelve weeks of the order having been made. As I have noted above, each case turns on its own facts, and it is only of limited assistance to look at the period of times allowed in other cases for compliance with a mandatory order.

In this case a compelling factor is that in March 2025 the Defendant agreed that it would provide suitable temporary accommodation within one month of the Ombudsman’s final decision. If the Defendant was prepared to agree that with the Ombudsman at that stage, I accept the Claimant’s argument that the mandatory order should require compliance within one month of the order having been made.

Having regard to the foregoing, I have concluded that it is appropriate to grant the following relief:

A declaration that the Defendant has been in breach of its statutory duty under s.193(2) of the 1996 Act from 15 May 2025; and

A mandatory order requiring the Defendant to provide the Claimant with suitable temporary accommodation within 45 minutes of the Chelsea and Westminster Hospital no later than one month from the date of the order giving effect to this judgment.

Disposal and costs

Following the circulation of this judgment in draft, the parties were able to agree an order save in respect of one issue. The parties agreed that an order for the payment of costs on account should be made and that, in the absence of a schedule of costs from the Claimant, the sum to be paid should be ascertained by reference to a schedule to be provided by the Claimant's solicitors in due course. The disagreement relates to the percentage of the costs in the schedule to be paid.

The Claimant has argued that I should order 60% on account of costs, whilst the Defendant has argued that the appropriate percentage should be 50%.

CPR r 44.2(8) provides: “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”  The relevant authorities were reviewed in Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), (Christopher Clarke LJ), where the judge concluded that what is “a reasonable sum on account of costs” will have to be an estimate dependent on the circumstances, most particularly that there has been no detailed assessment and therefore an element of uncertainty. The judge explained ([23] and [24]) that a reasonable sum would often be one that was an estimate of the likely level of recovery, subject to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad. In determining whether to order any payment and its amount, account needs to be taken of all relevant factors.

The Defendant accepts that in many cases a court will order an amount in the region of 60%, the percentage for which the Claimant contends. However, the Defendant submits that in many cases a schedule of costs will be before the court, and so the court is able to make an order by reference to that schedule after hearing the parties' submissions on the schedule. In this case the order is for the payment of a sum which is not yet ascertained, but which is to be ascertained by reference to a sum to be specified by the Claimant's solicitors in due course. The Defendant will have no opportunity to make submissions in relation to the reasonableness or proportionality of the costs claimed but will be required to pay the relevant sum regardless of whether there are good points to be made in relation to that reasonableness or proportionality.

The Claimant has not addressed that argument save that he asserts that “a schedule of costs is being prepared, but in any event 60% after receipt of the schedule is a reasonable figure to award on account.”

I accept the Defendant’s argument and conclude that the absence of a schedule of costs is a particularly relevant factor in assessing the appropriate percentage. In the exercise of my discretion, I will order the Defendant to pay 50% the Claimant’s costs on account under CPR r 44.2 (8) within 14 days of being provided with a schedule of costs.