Blog post by Connor Johnston of the Garden Court Chambers Housing Team.
The Claimant, RI, was accommodated with her children by the Defendant, Croydon LBC, under the main housing duty in s193(2) Housing Act 1996. Since October 2014 she had been living in the same temporary accommodation: a three bedroom terraced house with two floors.
RI was a wheelchair user and the property was partially adapted to meet her needs, with a lift to allow her to travel between the ground and upper floor, and a wet room on the ground floor. However, there remained a number of issues with the property. In particular, RI could not access the toilet (which was downstairs) readily enough during the night which had led to her having accidents, the kitchen cupboards were too high for RI to access, the windows were too high for her to open, the bathroom was not fully adapted, the lift occupied most of the living room and RI’s bedroom restricting the available space, and there was not sufficient space for RI to move in and out of all three bedrooms.
Following representations to this effect from RI’s solicitors, Croydon accepted that the property was unsuitable in June 2015. This acceptance was premised on the lack of an upstairs toilet which was contrary to the requirements specified in an assessment that had been conducted by the Defendant the previous year.
There followed a protracted period of correspondence, with some limited action on the part of Croydon to secure suitable accommodation. By January 2020 no suitable accommodation had yet been provided and judicial review proceedings were issued.
Matthew Gullick QC, sitting as a Deputy High Court Judge, refused to grant a mandatory order requiring Croydon to secure suitable accommodation, notwithstanding Croydon’s acceptance that it was in breach of the statutory duty under s193(2) Housing Act 1996. In reaching his decision he took into account: the fact that there were a number of ‘positive features’ in relation to RI’s accommodation; the lack of evidence about the impact of the unsuitable conditions on her; that the Defendant was doing ‘what it reasonably can’ to secure suitable accommodation; the Defendant’s limited resources and the fact it was facing an overspend of £67mn that financial year; and that there were other applicants also waiting for suitable accommodation under Pt 7 and that the court was not in a position to weigh their claims against RI’s.
However, the court found, Croydon had erred in law by failing to consider RI’s requests to give her increased priority for an allocation of social housing under Pt 6 Housing Act 1996. The claim for judicial review was allowed on this ground and a declaration made to this effect.
The Judgment is available here.
This judgment has attracted a degree of discussion and criticism online and I understand that the Claimant is seeking to appeal. There are a number of aspects of the Judge’s approach which might be open to question. But the main issue as I see it is the threshold he applied in deciding whether to grant relief. Relying on comments from Lord Hope and Baroness Hale in Birmingham City Council v Ali & Others  UKHL 36,  1 WLR 1506 at  and  respectively, he concluded that it would not be appropriate to grant a mandatory order requiring Croydon to provide accommodation as the evidence submitted on behalf of RI did not establish that her situation was 'intolerable' or that it had reached the point where 'enough is enough'. See [81(i)] of the judgment. Having found that it did not reach this threshold, he then went on to weigh other factors – such as Croydon’s budgetary problems – in the balance against RI.
However, the comments of Lord Hope and Baroness Hale (as the Judge in this case acknowledged) were made in a different context, in a case where the issue before the court was whether accommodation which was not reasonable to continue to occupy in the long term could still be regarded as suitable in the shorter term. They were not directed to the question of whether the court should grant relief in circumstances where it has been accepted that the accommodation is not suitable and that the local authority is in breach of duty.
In that latter situation the threshold applied by the courts has generally entailed asking whether the granting of relief would involve asking the local authority to do the impossible. See R v London Borough of Newham, ex parte Begum (1999) 32 HLR 808 per Collins J at pp815-816; Codona v Mid-Bedfordshire District Council  EWCA Civ 925,  HLR 1 at  per Auld LJ; Birmingham City Council v Aweys & Others  EWCA Civ 48,  1 WLR 3205 at  per Arden LJ; and R (of M) v London Borough of Newham  EWHC 327 (Admin),  PTSR 1077 at  per Linden J.
This is a very different question which focusses first on what the local authority has been doing, and will be able to do in future, rather than focussing first on the degree of prejudice suffered by the applicant (which will already have been factored into the underlying decision that the property is not suitable). The two approaches may involve similar considerations but lead to very different conclusion.
Hopefully an appeal will lead to some clarity on this issue. For my part, the question of whether relief would require the local authority to do the impossible would seem to be the more principled approach. It is difficult to see why a public body which is acting unlawfully, and which – in practical and legal terms – is in a position to remedy that illegality, should not be required to do so.