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Elkundi & Ors, R (On the Application Of) v Birmingham City Countil [2021] EWHC 1024 (Admin)

This case concerned four claimants who applied to Birmingham City Council for accommodation under the homelessness provisions contained in Part VII of the Housing Act 1996.

One issue Mrs Justice Steyn (hereafter Steyn J) ruled on was what the nature of the main housing duty under s193(2) was.  The homeless duty under s193(2) of the Housing Act 1996 states that unless the authority refer the application to another local housing authority, they shall secure that accommodation is available for occupation by the applicant.  Steyn J commented that this duty is “unqualified, immediate and non-deferrable”.

In addition, Steyn J was asked to decide on the lawfulness of the council’s actions according to the individual circumstances of each claimant but also to rule on whether the council operated an unlawful system for the performance of its duty under section 193(2) of the Act.  The judge said Birmingham had acted on the basis that an applicant owed the main housing duty could be left in unsuitable accommodation while the council took what it judged a reasonable time to secure suitable accommodation and do this without it breaching section 193(2): “In my judgment, this misunderstanding of the nature of the duty has resulted in the council operating an unlawful system for the performance of its duty under section 193(2).”

Steyn J said: “While I recognise the grave difficulties the council faces in finding accommodation for the homeless, putting applicants who are owed the section 193(2) duty, and who are in unsuitable accommodation, on a waiting list for temporary accommodation is not a lawful means of fulfilling the unqualified and immediate duty to secure suitable accommodation for their occupation.”

Even if the queue were based on when the applicant made a homeless application, rather than the date of joining, “the system would still operate irrationally” she said.  This was because those whose changed circumstance suddenly made their accommodation unsuitable could through longer residence be higher up the list than a family in greater need.

The judge said the system would remain irrational even if she was wrong and the council could leave people in unsuitable accommodation for a ‘reasonable period’, as no thought went into deciding what period was reasonable in individual cases.  She noted: “The placement in the queue takes no account of the fact that time spent in unsuitable accommodation may be worse in some cases than in others.”

Steyn J granted a declaration that the duty under section 193(2) to secure suitable accommodation for an applicant to whom the duty is owed “is unqualified, immediate and non-deferrable” and that Birmingham’s waiting list system was unlawful.

It is understood Birmingham City Council intend to appeal the judgment.

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