Homelessness – R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC

May 9th, 2022

In joined cases (2022) EWCA Civ 601, R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC the principal issue in the Birmingham case was the nature of the duty owed by local authorities (LHAs to homeless persons, under Section 193(2) of the Housing Act 1966 (the 1966 Act), which provides that a LHA shall secure that accommodation is available for the applicant; and the sole issue in the second case concerned the circumstances in which a Court may, in the exercise of its discretion refuse a mandatory order to enforce a duty owed under Section 193(2).

Lewis LJ, delivering the leading Judgment, set out the legislative framework: from paras 5-11, allocation of housing accommodation, under Part VI of the 1996 Act; and paras 12-16, the duties imposed by Part VII of the 1996 Act, the provisions in relation to homelessness, including the interim duty to accommodate in cases of apparent need, the meaning of homelessness, and the Section 193 duty.

Lewis LJ said, at para 76, that Section 193 applies when certain criteria are satisfied, and, at para 77, that Section 193(2) defines the content of the duty. He said, at paras 77 and 81, that the duty, once owed, is an obligation on the LHA to ensure that accommodation is available.  The duty is immediate, arising when the duty is owed. It is non-deferrable and unqualified.  It is not to secure that accommodation will become available within a reasonable period of time. However, he continued, at para 82, that the duty, to secure suitable accommodation is available, does not mean that permanent accommodation, suitable for long term occupation, must be provided immediately, once the duty is owed. Different accommodation may be provided at different times. What is suitable may change, or evolve, over time, depending on all the circumstances. What is suitable will depend on a number of factors.

From para 84, Lewis LJ reviewed the case law.

At para 107 he approved the interpretation of Section 193(2) by Arden LJ and the majority of the Court of Appeal, in Aweys (2008) 1 WLR 2305.

Underhill LJ and Peter Jackson LJ agreed.

The duty being “immediate”, unqualified and non-deferrable” does not impose an impossible burden on local authorities. The requirement of suitability is liable to be effected by a variety of factors.  The requirements of suitability in the longer term may be substantially more demanding than in the short term, when the LHA is responding to an immediate situation of homelessness: para 155.

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