City council fails in appeal over declaration it breached obligations owed under main housing duty

Lord Justice Singh and Lord Justice Holgate heard the appeal against the decision of HHJ Rawlings that it breached its obligations to the claimant/respondent under s.193(2) of the Housing Act 1996.

Singh and Hogate LJs said they first had to consider whether the case had become academic.

They decided to hear the case only because there was an appeal against a declaration and would have held it academic if the only remedy granted had been the mandatory order.

The claimant had challenged Birmingham’s decision on her application for accommodation and HHJ Rawlings made a declaration that Birmingham was in breach of a duty to secure accommodation and a mandatory order requiring Birmingham to secure suitable accommodation for the claimant and her household by 18 December 2025.

HHJ Rawlings though allowed Birmingham to appeal over whether the issue should have been dealt in a review and then appeal to the county court, and whether the duty would come to an end when the claimant left the premises provided and went elsewhere.

Appeal judges heard that the claimant has mild learning difficulties, is asthmatic and has various other physical and mental conditions.

Her brother is paralysed from the waist down and restricted to a wheelchair and is doubly incontinent.

The claimant applied to Birmingham in 2022 for assistance with accommodation for both of them and the council accepted it owed the duty in s.193(2) of the Housing Act 1996.

They were initially housed in bed and breakfast accommodation, but in 2023 Birmingham said it no longer owed her the duty as the claimant did not have a ‘local connection’.

After a series of disputes over the suitability of accommodation they remained in hotels and in April 2025 issued a claim for judicial review, which sought a declaration that Birmingham had breached its duty owed under s.193(2) of the HA 1996 and interim and final mandatory orders for Birmingham to secure suitable accommodation for them.

The claimant later decided she and her brother did not need to live together and agreed to discharge the mandatory order.

The judges said they had been persuaded Birmingham’s appeal had not become entirely academic because the council said the declaration should not have been made.

They examined six grounds, the first two of which concerned Birmingham’s case that the dispute should have been sent to review and then the county court rather than judicial review.

Criticising the council’s approach, the appeal judges said Birmingham did not raise this until far too late and made only an assertion that it was for it to decide on suitability.

The judges said: “In all the circumstances, it was unreasonable for [Birmingham] to object to the claim being determined on the basis that judicial review is a remedy of last resort, by raising the matter for the first time at the very last moment when the case had reached trial in the High Court.

“In these highly unusual circumstances, the judge rejected the alternative remedy objection and exercised the court's discretion to continue with the judicial review proceedings. We can see no error in that discretionary decision.”

Turning to grounds concerning whether the judge failed to apply public law principles, they concluded he did not fall into error and no breach of public law occurred.

They said the only reasonable view Birmingham could have come to about a property offered to the claimant was that it was unsuitable.

Two grounds concerned the construction of s.193(6)(d) of the Housing Act 1996

The judges held if the relevant accommodation was not ‘suitable’, the authority's duty under s.193(2) did not come to an end if the applicant ceased to occupy that accommodation as their only or principal home.

Birmingham submitted this was wrong as the duty would come to an end if the occupant left the authority’s area.

“We are not impressed by this submission,” the judges said. “First, a person who moves away from an authority's area is unlikely to want to enforce any duty under s.193(2) against that authority. Second, the grant of mandatory relief by the court is discretionary.”

They also rejected a ground that argued the judge misunderstood a letter Birmingham sent regarding the suitability of accommodation.

Singh and Holgate LJs concluded: “No possible objection could be taken to that reading of the letter, which plainly relied upon the need for adaptations to render the property accessible and therefore suitable for a wheelchair user. “

With all grounds rejected they dismissed Birmingham’s appeal, and Lord Justice Phillips agreed.

Mark Smulian