Imam challenges?

Last week, I floated the idea that there must be scope in Wales for Imam– style challenges under the homelessness provisions.  I will explain what that means in a moment but I have to admit to having floated that idea with a little diffidence; so, I was heartened when a kind reader wrote to me and agreed with me.  I also said that I would write up the decision in R(Griffiths-Fowell) v Birmingham CC [2026] EWCA Civ 920, on this point.  As It happens, having re-read it today, I’m not sure it is as helpful as I originally thought on the Imam point.  What it establishes is that, absent exceptional circumstances, the normal course to challenge decisions that are subject to the requirement of review is to pursue a review, and then appeal to the County Court; and that accommodation provided in satisfaction, or partial satisfaction, of the accommodation duty is to be suitable.  Both points are pretty obvious to me, at least.  In that case, the judge had made an Imam-style order, viz that the authority was in breach of duty and a mandatory injunction requiring it to provide suitable accommodation to the applicant.

Such an order results in a situation where the authority has not complied with its obligation to provide suitable accommodation.  Commonly, an authority will (say) offer accommodation to an applicant, which the applicant is forced to accept, and then find that the offer is not suitable.  Having found that the applicant is not living in suitable accommodation, they are effectively in breach of duty from that point.  In certain circumstances – for example, where the applicant’s needs are for a particular type of accommodation which is not easy to find and not readily available – the authority might say that the duty is impossible to fulfil.  That was what the authority said in Imam v Croydon LBC [2023] UKSC 45.  The remedy in judicial review is discretionary.  Croydon’s argument was that, in these circumstances (even though they had been in breach of duty for over almost six years), the Court should not give a remedy.  The Supreme Court said that one needs to determine what qualifies as impossibility.  They made the following points:

1. The authority must show the Court that it has taken all reasonable steps to perform the duty.
2. In order to show that, the authority “… has to provide a detailed explanation of the situation in which it finds itself and why this would make it impossible to comply with an order”.
3. The court decides objectively whether the authority has taken all reasonable steps.
4. Simply because it has limited funds is not a sufficiently good reason to avoid the duty.  The authority must prioritise complying with its duties over other discretionary functions.  If the authority has a general contingency fund, it should explain why that cannot be used for this purpose.
5. Where the authority is on notice about the non-performance of its duty, but does not “react to that in good time”, that is a relevant factor; as is the extent of the impact on the applicant owed the duty.
6. A factor on the other side is if the authority is making attempts to rectify the situation – my experience here is that authorities are galvanised by judicial review proceedings (or their threat) and make offers which are simply not suitable and are withdrawn (see, for example, Bell v Lambeth LBC [2022] EWHC 2008).
7. Courts should be aware that they should not overstep the mark by giving applicants before them undue priority, but, for example, an authority can properly consider using one of its own properties that it would otherwise use to allocate accommodation on the waiting list to perform its duty to provide temporary accommodation to this applicant.

I think it is important to state these principles (or re-state them) because they may have an impact here in Wales; or, rather, they should do but they are not being used.  Perhaps my correspondent and I are wrong and authorities are complying with their duties at all times.  But, that may not be the case.  Local authorities in breach of their duty to provide suitable accommodation should be threatened with a mandatory order in these circumstances.  That may sound wrong-headed and against the spirit of co-operation which is part of the distinctiveness of the arrangements in Wales, but applicants in these cases are living in accommodation which is unsuitable.  It is our obligation to ensure that they have the benefit of the exercise of their rights.