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Social Housing Speed Read – Allocation and homelessness obligations

The recent Judgment of R (Elkundi) v Birmingham and R (Imam) v Croydon [2022] EWCA Civ 601 from the Court of Appeal concerns allocation and homelessness obligations of housing providers.

s.193 Housing Act 1993 applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are satisfied that he has not become homeless intentionally.

Under subsection 2 of the 1993 act, unless the housing authority refer the application to another local housing authority (the definition of which is found in s. 198 of the 1993 act), they shall secure that accommodation is available for occupation by the applicant.

In Elkundi itself, the issue was whether, having found that accommodation was unsuitable, the local authority then had a ‘reasonable period’ to secure alternative accommodation, or whether this duty was immediate. The High Court preferred the latter interpretation, holding that the duty under s.193 was immediate, non-deferrable and unqualified.

What did the Court of Appeal decide?

On appeal, the Court of Appeal held that, regarding the wording in s.193, “Shall” means ‘must’. “Secure” means that the housing authority is responsible for ensuring that accommodation ‘is available for occupation’. “Is available” means that suitable accommodation is to be available from the time when the duty is owed, that is from the time when the local housing authority is satisfied that the person meets the criteria so that the duty is owed to him.

The natural reading of this interpretation is that, from the moment a housing authority determines that a duty is owed, the obligation on the housing authority is to ensure that accommodation is available for that person. In that sense, the duty is immediate, arising when the duty is owed. It is non-deferrable and unqualified. For this reason, s.193 does not provide a “reasonable period” for accommodation to become available.

However, the duty to secure that suitable accommodation is available does not mean that permanent accommodation suitable for long term occupation must be provided ‘immediately’ once the duty is owed. The decision as to ‘suitability’ concerns the time when the duty arises and its nature.

Suitability was held to be a flexible concept. In assessing flexibility various factors can be assessed including:

  • The nature of the accommodation; the length of time that the homeless person has been in the accommodation; and his and his family’s needs.
  • The lack of alternative accommodation was also held to be a factor affecting what is suitable in the short or medium term, as may the fact that the housing authority has limited resources available to secure accommodation.

The Court also made it clear that their ruling was not meant to provide an exhaustive list.

Different accommodation may be provided at different times to ensure that the duty is being performed. There may be stages on the way to the offer of secure accommodation under Part VI, or an assured tenancy in the private sector. What is suitable may, therefore, evolve or change over time depending on all the circumstances. However, once accommodation was unsuitable, other suitable accommodation must be provided.

Housing providers should be aware over the rigidity with which s.193 will be imposed following Elkundi, and should ensure that, should they become aware that accommodation is unsuitable – but do not refer the application to another local authority – high priority is given to finding and providing suitable accommodation.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact Melanie Dirom or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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