R (on the application of Imam) v London Borough of Croydon

Facts

The claimant, who is disabled, was owed the main housing duty under section 193 of the Housing Act 1996. Croydon provided accommodation which, on review, it accepted was unsuitable for her needs, but she remained there for a prolonged period. The council, which was in serious financial difficulty, argued that it lacked the resources to provide suitable accommodation and that the court should not order it to do so.

History

The High Court declined to make a mandatory order and the Court of Appeal dismissed her appeal.

Issue

Whether, and to what extent, a court deciding whether to grant a mandatory order to enforce the section 193 duty may take into account the local authority's resources and its other demands, and how the court's discretion as to remedy should be exercised.

Held

Appeal allowed. The section 193 duty is an absolute duty to secure suitable accommodation, unaffected by resources. The court has a discretion as to remedy, but the courts below had approached it wrongly; the question of relief was remitted to the High Court.

Ratio

• Where a public authority is in breach of an unqualified statutory duty, its limited resources do not qualify the duty; the court retains a discretion as to remedy, but it should ordinarily enforce the duty and should withhold a mandatory order only where the authority shows, by evidence of what it has done and why it cannot comply, that there is good reason not to make one.

The judgments

Key reasoning

• The statutory scheme distinguishes between duties qualified by resources and duties that are not; section 193 is in the latter category, so the content of the duty cannot be diluted by the council's financial position.
• The court's discretion as to remedy exists but is not a means of allowing an authority to remain in continuing breach of an absolute duty.
• The court is not well placed to reallocate a council's budget, but it is for the authority to show, with evidence, the steps it has taken and why compliance is not achievable, rather than for the claimant to prove that it could comply.
• Relevant factors include the time the breach has lasted, the efforts made by the authority, the impact on the claimant and the position of others to whom the duty is owed.

Where it fits in the module

Imam belongs to the debate about remedies in judicial review and the relationship between rights, duties and resources. It contrasts with cases such as R v Gloucestershire CC, ex p Barry, where resources were relevant to the content of a duty, and illustrates how the courts police the boundary between their constitutional role and allocative decisions properly left to local authorities. It also shows how remedial discretion can either reinforce or hollow out legal duties.

Criticisms

• Ordering an under-resourced authority to house one claimant suitably may simply move scarce resources away from other applicants, which the court acknowledged but cannot fully assess.
• The decision leaves uncertain how much evidence an authority must produce before a mandatory order will be refused, which invites repeated satellite litigation.
• Treating the duty as absolute while preserving remedial discretion risks creating rights that are enforceable in principle but not in practice.
• The case highlights, but cannot solve, the problem of Parliament imposing unqualified duties without funding to meet them.