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

The legal framework

There was no material dispute as to the legal framework.

Section 193 (2) of the 1996 Act provides:

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.”

That duty exists until it is brought an end by one of the prescribed routes set out in section 193 of the Act.

Section 193 is located in Part VII of the 1996 Act. This is concerned with those “who face the immediate problem of homelessness”: Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506 [15] per Baroness Hale. Part VII contains a graduated series of provisions which impose a range of obligations on a local housing authority to secure temporary accommodation for an applicant. The main housing duty under section 193 (2) of the 1996 Act is the “highest” of the Part VII duties. Part VI of the 1996 Act, by contrast, is concerned with the allocation of permanent accommodation and provides no guarantee of the same.

Under section 206 of the 1996 Act, a local housing authority can only discharge its functions under Part VII in the following ways:

by securing that suitable accommodation provided by them is available for the applicant;

by securing that the applicant obtains suitable accommodation from some other person; or,

by giving the applicant such advice and assistance as will secure that suitable accommodation is available from some other person.

Both parties agreed that the s.193(2) duty is “an immediate, non-deferrable, unqualified duty to secure that suitable accommodation is available for occupation” (R (Elkundi and others) v Birmingham CC [2022] EWCA Civ 601; [2022] QB 604 at [108] per Lewis LJ). Thus, suitable accommodation is to be available from the time when the duty is owed. Although Lord Sales JSC reserved “his opinion whether that way of putting it is exactly right” in (R (Imam) v London Borough of Croydon [2023] UKSC 45; [2025] A.C. 335 (“Imam”) at [38], both parties agreed that I was bound by the formulation in Elkundi.

In Imam Lord Sales analysed the correct approach to the exercise of the court’s discretion regarding relief in cases where there was a breach of s.193(2) of the Act. The key points of his judgment can be summarised as follows (relevant paragraph numbers in the judgment added for reference):

The starting point is that the local authority is subject to a public law duty imposed by Parliament by statute which is not qualified in any relevant way by reference to the resources available to the local authority. [39]

When it is established that there has been a breach of such a duty, it is not for a court to modify or moderate its substance by routinely declining to grant relief to compel performance of it on the grounds of absence of sufficient resources. [40]

However, remedies in public law are discretionary [41].

Where a remedy is discretionary, it is incumbent on a court to exercise its discretion in accordance with principle and to avoid arbitrariness.  Where a breach of the law is established, the ordinary position is that a remedy should be granted. A court should proceed cautiously in exercising its discretion to refuse to make an order and should take care to ensure that it does so only where that course is clearly justified. But different types of order are available, and it may be that due enforcement of the law can be sufficiently vindicated by some order other than a mandatory order. [43]

The limitation on issuing a mandatory order with which it is impossible to comply is well established. However, this gives rise to the questions of what qualifies as impossibility of performance in the present context and what relevance resources have to that. [49]

The onus is on the authority to explain to the court why a mandatory order should not be made to ensure that it complies with its duty. In order to provide the court with reasons to justify the exercise of its discretion not to make such an order, the authority has to provide a detailed explanation of the situation in which it finds itself and why this would make it impossible to comply with an order. [53]

The authority has to show that it has taken all reasonable steps to perform its duty. Since it is the court which has to be satisfied that it is not appropriate to grant a mandatory order, the question whether the authority has taken all reasonable steps is an objective one for the court to determine, not a matter of application of the test of reasonableness or rationality in the Wednesbury sense from the perspective of the authority itself. [54].

A public authority which has limited resources is obliged to use them to meet statutory duties. There was a distinction between the discretion as to whether to make properties available for the purposes of allocation under an authority’s Part VI scheme and the duty under Part VII of the 1996 Act to provide suitable accommodation. [57].