Supreme Court sets High Threshold for Local Authorities to Avoid Mandatory Order to Comply with Main Housing Duty

Tom McHale

Judgment was handed down on 28 November 2023 by the Supreme Court in an important case regarding the main housing duty. The decision provides helpful guidance on the factors the courts will take into account when deciding whether to order a local authority to provide suitable accommodation to those owed the main housing duty.

The main housing duty is a duty that is owed to people who make a homeless application and are found to be eligible for assistance, homeless, in priority need and not intentionally homeless. Under the main housing duty, local housing authorities must ensure that suitable accommodation is provided. This accommodation could be social or ‘council’ housing or, if it meets certain criteria, accommodation in the private rented sector. If the accommodation is in the private rented sector, then it must be long-term accommodation – a tenancy of at least one year.

A local housing authority can also provide applicants with temporary accommodation whilst it looks for more long-term accommodation. In the recent case of Imam, R (on the application of) v London Borough of Croydon (2023) UKSC 45, the Supreme Court considered the conditions that a court should take into account when deciding whether to make a mandatory order to make the local authority to provide suitable accommodation under the main housing duty. A mandatory order is an order from the court that requires a certain action to be performed.

The Supreme Court upheld the findings of the Court of Appeal, that where the main housing duty is owed there is “an immediate, non-deferrable, unqualified duty to secure that suitable accommodation is available.”  (Please see our previous post on the 4 May 2022 Court of Appeal case of (R) Elkundi v Birmingham City Council and (R) Imam v London Borough of Croydon [2022] EWCA Civ 601 for further details of a local authority’s duty to provide suitable accommodation to individuals owed a main housing duty.)

In Ms Imam’s case she was owed the main housing duty by the London Borough of Croydon. She had been moved to a property that Croydon accepted was unsuitable following a suitability review. Ms Iman was not moved to a suitable property after this decision however and in 2021, more than five years after Croydon decided her property was unsuitable, she challenged this decision in the Courts.

Croydon defended the claim in the Administrative Court, stating that it had no suitable housing available, that it faced severe budgetary pressures,  and that it would therefore be unfair to make a mandatory order. Croydon were successful in the High Court. Ms Imam then appealed the decision to the Court of Appeal. The Court of Appeal found that simply citing a lack of resources was not reason enough to avoid granting a mandatory order, and that a local authority would need to provide detailed evidence of their budgetary limitations to succeed. Croydon appealed this decision to the Supreme Court.

The Supreme Court dismissed Croydon’s appeal. The Supreme Court confirmed that there is a very high threshold for a local authority to argue that they cannot comply with the main housing duty due to lack of funds. If a local authority seeks to rely on a lack of resources it will need to show that it is virtually impossible to provide suitable housing and will need to provide detailed evidence to back this up.

The decision also sets out five factors that a court may take into account when deciding whether to make a mandatory order requiring a local authority to provide suitable accommodation. They are as follows:

1. Whether a local authority has considered using its general contingency fund to find suitable accommodation for the Claimant and if not, why not.
2. Whether the local authority has received sufficient notice of the problem in relation to non-performance of its duty. If a local authority has not taken action for an extended period of time, then it will be likely that a court will make a mandatory order.
3. The impact on the Claimant. The more serious the negative impact of the local authority failing to provide suitable accommodation, the more likely it is the court will make a mandatory order.
4. The steps the local authority are taking to resolve the situation. If there is no indication the local authority are taking action then the court will be more likely to make a mandatory order.
5. The need to ensure that a situation is not created that is unfair to others.

The judgment helpfully clarifies that local authorities cannot simply refuse to provide suitable accommodation to individuals owed the main housing duty by citing a lack of resources, and that very detailed evidence would need to be provided if a local authority were to cite this as a reason for a court not to make a mandatory order. The judgment also provides useful guidance to potential claimants who may wish to seek a mandatory order against a local authority.