In a December 2023 decision, the UK Supreme Court sought to clarify how courts should use their remedial discretion to make mandatory orders against local authorities. In doing so, the Court arguably made the right to be provided with housing (in the form of suitable accommodation) a justiciable right for certain categories of homeless persons.

In 2019, the UN Special Rapporteur on extreme poverty expressed concern over the UK government’s ongoing budget cuts, noting that in England, “homelessness rose 60 per cent between 2011 and 2017 and rough sleeping rose 165 per cent from 2010 to 2018. … Almost 600 people died homeless in England and Wales in 2017 alone, a 24 per cent increase in the past five years.” Little has been achieved since, as recent data observed a 14% increase in homelessness in England between December 2022 and 2023.

It was only a matter of time before someone would approach the courts for relief. Under the Housing Act 1996, Ms Imam — a wheelchair user and mother of three who is not intentionally homeless — was accepted by the local authority (the London Borough of Croydon) as a person owed priority in the provision of housing. Consequently, under section 193(2), she was owed a duty by Croydon to “secure that accommodation is available for occupation” which she sought to enforce through a mandatory order [8].

Croydon accepted it had breached their public law duty to Ms Imam [7]. But, the award of public law remedies being discretionary, Croydon argued that a mandatory order was not appropriate; “acute budgetary pressures, very high demand for housing in the Borough and a limited pool of properties available to meet this demand” made it impossible to fulfil such an order [12].

The issue was “whether, and if so in what way, limits on the resources of a local housing authority should affect the exercise of a court’s discretion as to the remedy to be granted when the authority is in breach of its duty under section 193(2)”? [2]

Rights, duties, and enforcement

Framing the duty under section 193(2), the Court gave content to the “correlative right” [36]. Thus, section 193(2) contains an immediate and non-deferrable housing right, duties of which are unqualified by resource constraints [37]. Moreover, the right is programmatic and “directed towards achieving an end result” within a reasonable time [38].

As to enforcing the right, the Court held that to avoid a mandatory order against it, the onus rests on the authority to provide a detailed explanation of its situation and why compliance would be impossible [53]. Whether the authority has shown “that it has taken all reasonable steps to perform its duty” [54] was to be measured objectively, not against the deferential standard of Wednesbury unreasonableness.

For the Court, because section 193(2) created a binding duty, Croydon was obliged to prioritise using whatever resources were available to them to meet these duties [56]. After all, “where Parliament imposes a statutory duty on a public authority to provide a specific benefit or service, it does so on the footing that the authority must be taken to have the resources available to comply with that duty. It is not for the court … to dilute a clear statutory duty by reference to its own view of the resources available” [59].

Finally, the Court named five factors that will guide the deployment of its remedial discretion to issue mandatory orders. These included the existence of a pool of funds for general contingencies; the authority’s knowledge of the breach; the impact on the individual’s right; the progress made to satisfy the right; and considerations of fairness [66-70].

A welcome result

From a human rights perspective, Imam is an important result in at least three respects. First, though the Supreme Court’s housing jurisprudence has affirmed the negative duty not to be arbitrarily evicted by authorities (see Pinnock), Imam solidifies the positive duty on authorities to provide housing in the circumstances of section 193(2) of the Housing Act.

Secondly, the approach to enforcement appears highly democratic. There must be a strong, specific evidentiary basis to support a claim of impossibility — mere generalities will not suffice [57]. This enhances transparency and accountability.

Finally, the Court did not invoke the Human Rights Act 1998 (HRA) in reaching its decision. Thus, the justiciable and programmatic right to be positively provided with housing is not vulnerable to the HRA’s possible repeal.

Want to learn more?:

• Read: Financialisation of Housing: Balancing Commercial Interests with Human Rights
• Read: Provoking Debate: The UN Special Rapporteur and the Right to Housing in the UK
• Read: Thubakgale: Bringing Home the Right to Adequate Housing Against a Recalcitrant Municipality