Mandatory Orders and the enforcement of public law duties: R (Imam) v Croydon LBC

Mandatory Orders and the enforcement of public law duties: R (Imam) v Croydon LBC

By Gabriel Tan

In public law, the imposition of a duty on a public body means that the body must act in a particular way, or secure a particular outcome. Where these duties are not fulfilled, the most direct and effective public law remedy is to ask the court for a mandatory order- a judicial remedy compelling the public body to fulfil its duties.

However, the imposition of duties can sometimes give rise to difficult obligations for public authorities to fulfil, which leaves courts reticent to enforce these duties by way of mandatory order. Indeed, the issue of public law remedies is of wider contemporary importance, given the Government’s recent announcement of a further consultation in light of the findings by the Independent Review on Administrative Law including several proposals on their operation.

A recent case where the issue of public law remedies- specifically, mandatory orders- was at the forefront is R (Imam) v Croydon LBC [2021] EWHC 739 (Admin) (“Imam”). Imam was a claim for judicial review against the Defendant’s failure to provide suitable accommodation for the Claimant, a wheelchair user who is disabled within the meaning of s.6 of the Equality Act 2010, pursuant to its duty under s.193(2) of the Housing Act 1996. Section 193(2) provides:

“[Where s.193 applies], unless the authority refer the application to another local housing authority (see s.198), they shall secure that [suitable]accommodation is available for occupation by the applicant.” (emphasis added)

The Defendant admitted that it was in sustained breach of this duty, and the main ground of the Claimant’s challenge concerned whether a mandatory order should be made requiring the Defendant to provide suitable accommodation for her.

Matthew Gullick QC, sitting as Deputy Judge of the High Court (“the Judge”), declined the grant of mandatory relief. In doing so, he held that the principles elucidated by Lady Hale in Birmingham City Council v Ali & others [2009] UKHL 36 (“Ali”) regarding the anterior question of whether the s.193(2) duty had been breached at all, applied equally to the question of appropriate relief where the local authority was found to be in breach of that duty (Imam at [76]). Whilst the judgment in Imam sets out a list of supporting reasons for declining mandatory relief (Imam at [81]), the decision essentially turned on the interpretation and application of the decision of the House of Lords in Ali. This post argues that this aspect of the decision is wrong in principle, and has the exact effect of what the Judge sought to avoid- “strip[ping] the duty under s.193(2) of its force and render[ing] it a ‘best endeavours’ duty”.

The decision in Ali and the Judge’s reasons for applying it

In Ali, Lady Hale (with whose opinion the other members of the Appellate Committee agreed) observed that in deciding whether the s.193(2) duty was breached, “it would be wrong to ignore” the pressures faced by local authorities, especially in areas where there are a “very limited number of satisfactory properties for large families and those with disabilities” (Ali at [50]). In other words, she made it clear that budgetary constraints and the limited number of suitable properties for disabled persons i.e. the practical realities of situations which local authorities find themselves in, were matters that should be taken into account when considering if the s.193(2) duty had been breached (henceforth referred to as “the Ali principles”). The Judge in Imam decided that these principles equally applied to the determination of appropriate relief to be granted where a local authority is in breach (Imam at [76]).

The Judge further relied on the judgment of Linden J in  R (M) v Newham LBC [2020] EWHC 327 (Admin) (“M v Newham”), which similarly considered the question of relief where there had been a breach of the s.193(2) duty. In deciding that mandatory relief should be granted, Linden J applied the Ali principles to find that the situation of the claimant in M v Newham had reached the point of being “intolerable” and hence deserving of mandatory relief.

The Ali principles should not apply in determining appropriate relief for breach of the s.193(2) duty

This post makes two arguments against the application of the Ali principles to the question of relief where a breach of the s.193(2) duty has been found.

First, it is an application which renders nugatory the concept of public law duty as imposed by s.193(2). It is important to grasp exactly what the duty being imposed is. As Arden LJ (as she then was) observed in Birmingham CC v Aweys & others [2008] EWCA Civ 48 at [62] (“Aweys”) (this was one of the CA decisions appealed to the HL in Ali):

“The core duty in s.193(2) is not qualified by any expression defining the time within which the duty is to be performed. Moreover, the duty is not qualified by some such word as “forthwith”. Equally, it is not watered down by some such words as “as soon as possible”. Nor is the duty expressed in terms of best endeavours or taking reasonable steps.”

The s.193(2) duty is as straightforward a public law duty as it comes. In simple terms, it requires a public authority to fulfil the duty, no ifs, no buts. Notwithstanding this, the House of Lords decision in Ali, which took into accountthe pressures faced by public authorities in determining whether the s.193(2) duty had been breached, is very arguably justifiable on grounds of practicality. However, the combined effect of applying the Ali principles to both the question of breach and relief- which is the result of Imam– is to strip the s.193(2) duty of any force.

As much as the courts are keen to ensure that the pressures which public authorities face are taken into account in determining claims before it, the more principled stance- with the principle of the separation of powers in mind- is for the courts to faithfully enforce the strict duty set out in s.193(2). If the enforcement of  public law duties is constrained by economic considerations, this is something which must be confronted by Parliament and the Government through political solutions, which might include the amending of statutory duties in legislation or the greater devotion of resources to allow these duties to be fulfilled. It is not for the courts to interpret the clear s.193(2) duty out of existence as has been done in Imam.

Second, the correct test for whether to decline the grant of a mandatory order where the s.193(2) duty has been breached is, as counsel for the claimant in Imam had advanced, whether it requires the Defendant to “do the impossible” ([55]). This is set out by the Arden LJ in Aweys at [65]:

“Because the duty is expressed in terms of securing a result, and the context is homelessness, which of its nature requires some urgent action, I do not consider that there can properly be an implication into the statute that it is sufficient to comply with the duty imposed by s 193(2) within a reasonable time. However, I would not (at least without further argument) rule out the possibility that the court may decline to make a mandatory order against a local authority to perform its duty to secure accommodation for an applicant in a case where the local authority is placed in what is in effect an impossible situation.” (emphasis added)

Although the HL in Ali had overruled Aweys , the overruling was only in relation to the manner in which “the [s.193(2)] duty was expressed” in Aweys (Ali at [4], per Lord Hope), and nothing was said about the situation in which a mandatory order may be made or declined. In fact, Lady Hale in Ali had expressly said that she “would not be inclined to enter into debate about the criteria governing the grant of mandatory injunctions in homelessness cases”. With this in mind, the Judge in Imam’s decision that the Ali principles applied to the consideration of relief appears all the more erroneous.

The correct test to be applied, in the context of a public law duty as strict as s.193(2), is as suggested by Arden LJ in Aweys. Indeed, the reason why the claimant in Imam had not provided evidence to show that her living conditions were “intolerable”- evidence the Judge in Imam considered was required to grant mandatory relief- was precisely because the Defendant had conceded the breach of statutory duty (Imam at [81(i)]). To the extent that the Judge in Imam suggests that the Defendant would have been put in an “impossible situation” by a mandatory order, it is a characterisation that, with respect, does not withstand scrutiny. This is especially so, considering that the Claimant in Imam- a wheelchair user who is disabled- was living in a property with bathroom and bedroom on different floors, and had already been waiting for more than five years for suitable accommodation (Imam at [81(iv)]).

An alternative remedy: suspended mandatory orders

Returning to the Government’s consultation on public law remedies referred to at the beginning of this post, a proposal not contemplated but which might have had an effect on cases like Imam is the “suspended mandatory order”. This is a mandatory order which would be suspended pending the completion of a certain action or process, similar to the suspended quashing order proposed in the Government’s consultation.

Whilst judges are at liberty to grant mandatory orders stipulating generous periods for the fulfilment of a relevant act or duty, it is often the coercive effects of ordinary mandatory orders on public authorities which makes judges reticent about granting them. This is seen in Imam, where the Judge agreed with the Defendant that the “resources available [were] relevant to the question of whether mandatory relief should be granted”, and observed that “the court would either be requiring the Defendant to spend money… it does not have, or to reallocate money from the provision of other public services in order to provide accommodation to the Claimant” if a mandatory order were to be granted (Imam at [81(v)]). These constitute direct concerns which a mandatory order would have caused, including undue interference with public administration, and undue administrative burdens for the Defendant.

Beyond speculation as to how the decision in Imam might have differed if there had been additional options for relief, the suspension of mandatory orders is potentially a useful new tool for courts to possess in its own right. Indeed, it seems rather strange that the Government’s consultation has only proposed the suspension of quashing orders- without including mandatory orders- when the two are often used together (a quashing order to quash the unlawful decision, together with a mandatory order to redetermine). As a standalone remedy, the suspended mandatory order would be of most relevance in the exact type of situation of the Defendant in Imam: where the public authority is subject to a strict or important duty, but is unable to fulfil it due to economic constraints. It needs no saying but the continued inability (or failure) of local authorities to fulfil their s.193(2) duty is by no means a situation limited to the Defendant in Imam.

Conclusion

Housing practitioners and those familiar with the housing scene will know how disastrous the provision of social housing, especially where the suitability of housing for disabled persons is concerned, has been for many years. To some, the stunning revelation in Imam-that some applicants to the Defendant who were in priority Band 1 (the highest priority) had been waiting for a suitable property for more than 15 years- would come as no surprise (Imam at [22(x)]. Provision of social housing is, quite clearly, a longstanding problem.

Whilst this post has suggested that Imam is flawed in its own right, the decision does provide food for thought on some of the proposed changes to judicial review remedies suggested in the Government’s recent consultation. If the Government is to introduce suspended quashing orders, the failure to consider suspended mandatory orders in tandem would represent a self-created lacuna.  

Returning to Imam and the issue of enforcement of the s.193(2) duty, it is not a problem for the court’s fixing, but a reality that Parliament and the Government must face up to. It is not for the court to interpret the s.193(2) duty out of existence and help politicians solve a political issue with judicial solutions.

Gabriel Tan is an LPC LLM student at BPP University (Holborn) and a Durham LLB graduate and is interested in all issues relating to public law and human rights.