Lack of resources is not reason enough to avoid housing duty, Supreme Court rules

The decision follows several appeals in the courts by the council and resident.

It concerns the approach a court should take when granting a mandatory order after a council landlord fails in its duty under the Housing Act 1996 to ensure that suitable housing is available to a person who is eligible for assistance. 

Croydon’s position was that it should not be handed an order because of “severe budgetary constraints and limits to the stock of properties available”. It said that “at the very least” it should be given a period of grace to allow it to find a suitable property out of its limited resources, according to the ruling. 

The woman, a mother of three who is disabled and uses a wheelchair, applied for homelessness assistance to Croydon Council in 2014, which placed her in unsuitable temporary accommodation. 

The resident said that cupboards and windows were too high for her to use and the bathroom had not been fully adapted. She could not access her children’s bedrooms and there was no upstairs toilet for her to use at night, which meant she suffered accidents that were “humiliating and distressing”. 

According to the Supreme Court ruling, the council assessed that it was “not cost-effective” to adapt the property to make it suitable for her needs. 

After remaining stuck in the property for six years, the resident brought a judicial review against the council in 2020 over its failure to move her. 

She wanted a mandatory order from the court to force the council to find suitable accommodation, as well as damages for breaching the Equality Act 2010. She also sought an order requiring the council to reassess her priority on its housing register.

The High Court allowed part of the latter, but the deputy judge dismissed the first two grounds. 

The Court of Appeal granted permission to appeal on the first ground, the mandatory order for suitable accommodation. 

It ruled that Croydon should not be ordered to provide new accommodation for the resident if it was “not reasonably possible” for it to do so.

However, contrary to the view of the deputy judge, the Court of Appeal held that a “bald appeal to budgetary constraints as had been made” as an explanation for Croydon’s non-compliance with its duty was “not a sufficient justification to permit the court to decline to grant a mandatory order to require it to provide suitable accommodation”.

Judges held that a mandatory order may not be acceptable if the council had taken “all reasonable steps” to perform its duty. 

In this case, the council should be expected to demonstrate what steps it has taken and what the difficulties are, and it is “unlikely to be sufficient to refer generally to the demand for housing or the shortage of accommodation”. 

Following this ruling, Croydon Council appealed to the Supreme Court.

However, judges unanimously dismissed the appeal. They also dismissed the resident’s submission that the court should make a mandatory order even if it emerges that the council has no appropriate housing available. 

No order was made, but the case will be remitted to the High Court for fresh evidence from both parties. 

In March, housing charity Crisis was granted permission to intervene on behalf of the resident in the case. 

Giles Peaker, a partner at Anthony Gold, who along with Justin Bates, Harriet Wakeman and Barney McCay acted for Crisis, told Inside Housing: “If Croydon had been successful in their appeal, it would have given local authorities a general excuse to not carry out their duty to secure suitable accommodation under Section 193 [of the] Housing Act 1996, where the full housing duty is owed to the homeless applicant. 

“A bare assertion that the authority did not have the resources to comply would have been enough to defeat any attempt to enforce the duty by the homeless person, potentially leaving them in unsuitable accommodation for a very long time. 

“Happily, the Supreme Court did not accept that, restating the position that a local authority is presumed by the court to have the resources to fulfil its statutory obligations. 

“While it may be a factor for the court in deciding to make a mandatory order to consider whether it would disrupt a council’s budget allocations, a council would have to evidence that, and show that there were no discretionary or contingency funds that could be used. 

“Any delay by the council – six years in this case – would also be relevant, as would the impact of the breach on the individual owed the duty.

“A general pleading of lack of resources by the council, which is often made, will not be enough to avoid the ‘immediate and unqualified duty’.”

A spokesperson for Croydon Council said: “We fully accept the findings of the judgement and apologise for the impact the situation has had on our resident. We are continuing to make every effort to secure alternative suitable accommodation as quickly as possible.

“Like other London boroughs, Croydon faces huge demand for homes, particularly where residents have complex needs. 

“Given the shortage of suitable housing in London, this often means a difficult balance between the needs of our residents who are homeless and our current tenants who need alternative accommodation.

“We recognise that Croydon’s housing service in recent years has not been good enough. While it will take time, we have introduced a detailed housing improvement plan to transform the service we provide our communities.”