Aweys & Ors, R (on the application of) v Birmingham City Council

Factual and Procedural Background

This opinion concerns seven claims brought against a local housing authority (the Defendant) relating to its handling of homelessness applications by various claimants. Each claimant was accepted by the Defendant as homeless, in priority need, and not intentionally homeless, thereby triggering the full statutory duty under Part VII of the Housing Act 1996. The claimants contend that the Defendant acted unlawfully in applying its housing allocation policy, maintained under Part VI of the same Act, to their homelessness cases. They argue that the allocation policy is irrational and unlawful in its application to homeless persons, and in one claim, the Defendant’s "Home Options" scheme was also challenged as unlawful. The claims were consolidated for hearing due to their common legal issues.

The Defendant is the largest local authority in the country, with a significant housing shortage and high demand, including thousands awaiting housing and transfers. The Defendant’s policy includes attempts to keep families in their current accommodation, even when overcrowded or otherwise unsuitable, pending availability of permanent accommodation. Several claimants have large families requiring accommodation with more than three bedrooms, which is scarce in the area.

Some claimants also raised breaches of Article 8 of the European Convention on Human Rights, relating to respect for private and family life, but it was accepted that this did not add protection to their judicial review claims, though it might support claims for damages under the Human Rights Act 1998.

Legal Issues Presented

1. Whether the Defendant’s application of its housing allocation policy to homeless applicants complies with the statutory duties under Part VII of the Housing Act 1996.
2. Whether the Defendant’s “Home Options” scheme unlawfully delays or defers the consideration of homelessness applications contrary to the statutory duty.
3. Whether the Defendant has complied with its duty to provide suitable accommodation pending discharge of its statutory duties.
4. Whether the Defendant’s banding system, distinguishing between homeless persons in temporary accommodation (Band A) and those in other accommodation (Band B), is lawful and rational.
5. Whether claims based on alleged breaches of Article 8 ECHR can succeed in the context of homelessness and failure to provide suitable accommodation.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory framework under the Housing Act 1996 (Part VII) and related legislation, emphasizing the duties of local authorities to assess homelessness applications promptly and to provide suitable accommodation to those owed a duty. The court noted the distinction between "roofless" homelessness and "homeless at home" (where a person occupies accommodation but cannot reasonably be expected to continue there).

The court found that the Defendant had repeatedly failed to comply with its statutory duties. In particular, the Defendant’s allocation policy, which placed homeless persons in two different priority bands (A and B) depending on whether they were in temporary accommodation arranged by the Council or not, was irrational and unlawful. Those homeless "at home" were relegated to Band B despite occupying unsuitable accommodation, resulting in ongoing breaches of statutory duty.

The court held that the Defendant’s policy to discharge its duty only by providing settled accommodation under Part VI was legitimate in principle but must be accompanied by the provision of suitable temporary accommodation in the interim. The Defendant’s failure to do so amounted to unlawful conduct.

The "Home Options" scheme was found to be unlawful to the extent that it deferred the Defendant’s statutory duty to consider homelessness applications promptly under s.184.

Regarding Article 8 ECHR claims, the court recognized that while homelessness alone does not found a claim, the particular circumstances of the claimants, including overcrowding, disrepair, and disability, might satisfy the high threshold for a breach of Article 8. The court declined to strike out these claims, leaving them to be assessed in full evidential proceedings.

The court acknowledged the practical difficulties faced by the Defendant due to severe housing shortages but emphasized that these difficulties do not excuse breaches of statutory duties. The court referred to relevant case law to balance the councils’ discretion with the requirement to act lawfully and reasonably.

Holding and Implications

The court GRANTED PERMISSION for all claims to proceed to substantive hearing and found that the Defendant had breached its statutory duties under Part VII of the Housing Act 1996 by:

• Failing to provide suitable accommodation pending discharge of its duty.
• Applying an unlawful and irrational housing allocation policy that discriminated between homeless persons based on their current accommodation status.
• Using the Home Options scheme unlawfully to defer statutory homelessness duties.

The court held that the Defendant’s approach was incapable of complying with the law and must be amended to ensure homeless persons are provided with suitable accommodation promptly, whether temporary or settled.

Regarding Article 8 claims, the court held that these claims were not bound to fail and should proceed to full consideration, recognizing the possibility of damages claims in exceptional circumstances.

The decision directly affects the parties by requiring the Defendant to reconsider its policies and practices to comply with statutory and human rights duties. No new precedent was established beyond the application and clarification of existing statutory and case law principles.