November 29th, 2023 by James Goudie KC

The central issue before the Supreme Court is R (Imam) v London Borough of Croydon (2023) UKSC 45, in which Judgment was given on 28 November 2023, was whether, and, if so, in what way, a local authority’s lack of financial or other resources should be taken into consideration when a Court is deciding whether to grant a Mandatory Order against the authority in order to enforce its undoubted statutory duty (paragraph 37) towards a homeless individual under Section 193(2) of the Housing Act 1996.

Lord Sales explains that Croydon Council is subject to a public law duty which is immediate, non-deferrable, and not qualified by reference to available resources or otherwise (paragraphs 38 and 39).

However, remedies in public law are discretionary (paragraphs 40-53 inclusive).

A Mandatory Order should be granted only when that course is properly justified and compliance is not impossible.  A number of factors must be taken into account.

Where a local housing authority like Croydon is in breach of its Section 193(2) duty the onus is on the authority to explain to the Court in detail why a Mandatory Order should not be made to comply with its duty (paragraph 55).  Priority should be given to duties towards the homeless under Part 7 of the 1996 Act over discretionary allocation under Part 6 (paragraphs 56-59 inclusive).  A Court is not entitled to absolve an authority in any general way from complying with its duty by reason of unparticularised claims that the resources available to it are insufficient (paragraphs 59-60).

The Supreme Court gives guidance in relation to the exercise of a Court’s discretion in this kind of case (paragraphs 61-71 inclusive).  Lord Sales says (at paragraph 63):

“… if a Court makes a mandatory order which has the practical effect of requiring an authority to divert funding from allocation already made in its annual budget, it would unduly disrupt that balancing exercise carried out by the local authority as regards the funding for the due performance of its different functions.  The Court cannot know with any confidence whether its order will cut across the performance of other statutory duties to which the authority is subject.  The making of a mandatory order gives the statutory duty which it reflects super-added force, which means that the authority has to give priority to complying with it, but in circumstances where the authority might be struggling to accommodate and perform a range of statutory duties. This may have an unduly distorting effect upon the overall balance already struck by the authority in its previous budgeting process in an attempt to reconcile the demands upon it.  It is difficult to know whether by requiring, through the making of a mandatory order, an authority to give priority – after setting its overall budgeting allocations – to one out of the many statutory duties and functions imposed upon it, the carrying out of the authority’s other duties and functions will be unduly compromised.”

Lord Sales adds that, unlike in the field of financial insolvency procedures, there is no process for imposing a moratorium on claims with a view to ensuring that they are all accommodated fairly and equally on a pari passu basis.  The authority is the clearing house for all the claims made upon it.

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