Birmingham City Council v Aweys & Ors

Factual and Procedural Background

This case concerns the duties of a local housing authority, referred to here as the Council, to secure suitable accommodation for homeless persons, including those who are "roofless" (street homeless) and those who are "homeless at home" due to overcrowding. Several families were found to be homeless because their current accommodation was unreasonably overcrowded, yet the Council's policy was to prioritize street homeless persons for temporary accommodation while leaving the homeless at home in unsuitable housing. The Council was declared in breach of its duty by Collins J, who found their allocation policy unlawful. The appeal was brought with permission, raising issues of general importance to housing authorities.

Legal Issues Presented

1. Whether a local housing authority can lawfully discharge its duty under section 193(2) of the Housing Act 1996 by leaving homeless families ("homeless at home") in accommodation that is unreasonably overcrowded while seeking permanent accommodation.
2. Whether the Council's allocation scheme, which gives preference to street homeless persons over homeless at home, is lawful under Part 6 of the Housing Act 1996.

Arguments of the Parties

Appellant's Arguments

• The Council argued that the Housing Act 1996 does not impose a duty to provide temporary accommodation between accepting the full duty and securing permanent accommodation.
• They contended there is no statutory obligation to find temporary accommodation pending permanent housing, and that the duty is discharged only by finding suitable permanent accommodation.
• Reliance was placed on Lord Hoffmann’s speech in Reg. v Brent L.B.C., Ex Parte Awua to argue that accommodation can be suitable for a temporary period even if overcrowded.
• The Council submitted that their duty under section 193(2) is continuing and that a reasonable time must be allowed to secure accommodation, warning that immediate relocation requirements would have significant financial consequences.
• They defended the allocation scheme’s differentiation between street homeless and homeless at home on grounds including financial considerations and policy discretion.

Respondents' Arguments

• The respondents argued that the statutory scheme treats a person as homeless if it is unreasonable for them to continue to occupy their current accommodation, and thus leaving them in unsuitable housing breaches the authority’s duty.
• They submitted that the duty under section 193(2) requires the authority to take positive steps to secure alternative accommodation and does not permit leaving applicants where they are, even temporarily.
• It was contended that the allocation scheme unlawfully prioritizes street homeless over homeless at home despite both groups being owed the same duty.
• They emphasized the internal consistency and symmetry of Part 7 of the Housing Act 1996, including the deeming provisions and the definition of homelessness.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the statutory framework under Part 7 of the Housing Act 1996, which establishes a duty on local housing authorities to secure suitable accommodation for persons who are homeless, eligible for assistance, in priority need, and not intentionally homeless. The statutory definition of homelessness includes a deeming provision that excludes accommodation from being treated as such if it is unreasonable for the person to continue to occupy it.

The court analyzed the fact that the appellants were deemed homeless because their current accommodation was overcrowded and unreasonable to occupy. The Council’s policy of leaving these "homeless at home" families in their existing accommodation pending permanent rehousing was found to be inconsistent with the statutory duty, as the existing accommodation did not qualify as "available accommodation" under the Act.

The court rejected the Council’s reliance on Lord Hoffmann’s speech in Awua, distinguishing that case on the basis that the temporary accommodation there was reasonable for occupation, whereas here the accommodation was unreasonably overcrowded and thus did not constitute accommodation for statutory purposes.

The court held that the duty under section 193(2) arises immediately once the authority is satisfied the applicant is homeless, eligible, and in priority need. The duty is to secure accommodation, not merely to wait while the applicant remains in unsuitable housing. Leaving the homeless at home in unsuitable accommodation, even temporarily, is a breach of duty.

Regarding the allocation scheme, the court found the Council’s differentiation between street homeless placed in temporary accommodation (Band A) and homeless at home (Band B) to be unlawful. The homeless at home are in unsuitable accommodation and thus entitled to at least equal priority. The scheme’s distinction was irrational and incompatible with the statutory scheme.

The court acknowledged the practical difficulties faced by local authorities but emphasized that any amelioration of the duty must come from the legislature, not the courts.

Lady Justice Arden provided additional interpretative observations, emphasizing the wide scope and humane purpose of the legislation and rejecting any implied qualification allowing local authorities to delay securing accommodation beyond an immediate duty.

Holding and Implications

The court UPHELD the declarations that the local housing authority was in breach of its duty under section 193(2) of the Housing Act 1996 by leaving homeless at home families in overcrowded and unsuitable accommodation while seeking permanent housing. The court further held that the Council’s allocation scheme was unlawful in giving preference to street homeless over homeless at home.

The direct effect of this decision is that local housing authorities must provide suitable accommodation to all unintentionally homeless persons in priority need without leaving those homeless at home in unsuitable housing, even temporarily. The decision does not establish any new precedent beyond the interpretation and application of the existing statutory scheme but clarifies the immediate and continuing nature of the housing duty and the requirement for equal treatment within allocation schemes.