Caroline Griffiths-Fowell, R (on the application of) v Birmingham City Council [2026] EWCA Civ 920

[2026] EWCA Civ 920Case No CA-2025-003050
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE RAWLINGS
AC-2025-BHM-000119
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2026
Before
LORD JUSTICE SINGHLORD JUSTICE PHILLIPSLORD JUSTICE HOLGATE
Between
THE KING (on the application of CAROLINE GRIFFITHS-FOWELL)Claimant/ Respondent
Between
BIRMINGHAM CITY COUNCILDefendant/Appellant
Jonathan Manning and Annabel Steele (instructed by Birmingham City Council) for AppellantZia Nabi and Joseph Markus (instructed by The Community Law Partnership) for RespondentHearing Hearing date: 25 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 17 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The appellant, Birmingham City Council (“BCC”) appeals against the decision of HHJ Rawlings, sitting as a judge of the High Court in the Administrative Court (“the judge”), dated 27 November 2025, in which he concluded that BCC had breached its obligations to the respondent, Caroline Griffiths-Fowell, under s.193(2) of the Housing Act 1996 (“the HA 1996”). The judge made two orders, one dated 21 November 2025 and the other dated 27 November 2025. One of the issues which arises on this appeal concerns the correct construction of the HA 1996, in particular s.193(6)(d).[2]The other substantive issues which arise from the grounds of appeal, some of which were the subject of a grant of permission by the judge himself and others which were permitted to proceed by Lewis LJ, concern whether the judge ought to have considered the claim for judicial review before him at all (in circumstances where it is submitted that there was a suitable alternative remedy available, by way of appeal to the County Court); and whether the judge erred in failing to applying principles of public law (it is submitted that he decided certain questions for himself as if he were sitting in an ordinary civil jurisdiction rather than in judicial review proceedings).[3]Before we address those substantive issues we shall have to consider whether this Court should entertain this appeal at all, since (on one view) it has become academic. As will become apparent, we have reached the conclusion that this Court should consider the substantive issues on this appeal but only because and in so far as there is an appeal against a declaration that was made by the judge. If the only remedy he had granted had been the mandatory order which he made, we would have reached the conclusion that the appeal had become academic (since the respondent does not invite this Court to maintain that mandatory order) and would have exercised our discretion to decline to decide the substantive issues raised. Since, however, there is an extant declaration in place, the grounds of appeal have not become academic and this Court must determine them.

Factual background

[4]The respondent has mild learning difficulties, is asthmatic and partially sighted. She is affected by ADHD, arthritis, diabetes, sciatica and deafness in one ear. She also has mental health issues involving anxiety, depression, suicidal ideation and self-harm.[5]The respondent’s brother, Ian Fowell, is paralysed from the waist down and restricted to a wheelchair. He is doubly incontinent. He suffers from curvature of the spine, and dislocation of both hips. He has the use of only one arm. He suffers from cerebral palsy, schizophrenia, bipolar disorder and type 2 diabetes. He also suffers anxiety and depression and is prone to self-harm.[6]The appellant is a local housing authority under the HA 1996 and owes duties to homeless persons under Part 7 of that Act.[7]On 30 August 2022 the respondent applied to BCC for assistance with accommodation. That application included the respondent’s brother as part of her household. On 24 November 2022 BCC accepted that it owed the duty in s.193(2) of the HA 1996 to the respondent to secure that accommodation is available for occupation by her and her brother (“the main housing duty”). It is common ground that to satisfy the duty in s.193(2) the accommodation, whether temporary or long term, had to be suitable for the respondent and her brother (s.206(1) of the HA 2026).[8]Initially BCC housed the respondent and her brother in bed and breakfast accommodation, but in 2023 BCC told the respondent that they no longer owed her a duty under s.193(2) because she did not have a “local connection” with Birmingham.[9]On 14 March 2024 the respondent and her brother issued a claim for judicial review against BCC challenging its refusal to make accommodation available for them. BCC then provided accommodation at a Travelodge Hotel.[10]However, on 27 March BCC stated again that the respondent did not have a local connection with Birmingham and that it would refer her case to Manchester City Council. On 2 April 2024 the respondent and her brother were required to leave the hotel. On an urgent application for interim relief in the judicial review proceedings, HHJ Rawlings, sitting as a judge of the High Court, made an order on 2 April 2024 requiring BCC immediately to secure suitable temporary accommodation for the respondent pending the outcome of the proceedings.[11]On 2 July 2024 BCC decided that they did owe a duty to the respondent under s.193(2) of the HA 1996 to provide accommodation. In addition, they retracted the referral to Manchester City Council.[12]BCC continued to accommodate the respondent and her brother in a hotel. In response to the respondent’s request for a review of the suitability of that accommodation, BCC decided on 16 July 2024 that it was unsuitable.[13]By letter dated 31 July 2024 BCC offered the respondent “interim temporary accommodation” in a 2-bedroom flat at 22, Langdon Walk, Birmingham. The letter stated that BCC had assessed the needs of the respondent and her brother and was satisfied that the accommodation was suitable and that it would be reasonable for her to accept it. The respondent and her brother moved in.[14]On 19 August 2024 the respondent requested a review of the suitability of the flat. On 14 October 2024 BCC decided to overturn the decision of 31 July 2024 on the basis that the flat was unsuitable for the respondent and her brother. The flat lacked adaptations to address the disabilities of the respondent’s brother. It did not meet the requirements which had been set by BCC’s own occupational therapist.[15]On 15 October 2024 the respondent’s solicitors sent a pre-action protocol letter requiring BCC immediately to provide suitable interim accommodation. There followed lengthy correspondence between the parties.[16]In the meantime the respondent and her brother continued to live at 22, Langdon Walk. On 26 February 2025 the respondent’s solicitors reminded BCC that Mr Fowell was unable to access the bathroom or toilet in the flat and that proceedings would be brought if a suitable offer of accommodation was not made.[17]In the absence of any offer of alternative accommodation, on 16 April 2025 the respondent issued a second claim for judicial review against BCC. The claim sought:(1) A declaration that BCC had breached its duty owed to the respondent under s.193(2) of the HA 1996;(2) An interim mandatory order requiring BCC immediately to secure suitable accommodation for the respondent and her brother; and(3) A final mandatory order requiring BCC to secure suitable accommodation for the respondent and her brother.[18]On 6 May 2025 BCC sent a formal offer of a maisonette at 7, Holden Close, Birmingham as temporary accommodation until long-term housing could be arranged. The letter said that it considered the dwelling to be suitable and that it would be reasonable for the respondent to accept it.[19]On 4 June 2025 the respondent and her brother moved to 7, Holden Close. On the same day the respondent’s solicitor wrote to BCC explaining why the property was unsuitable for them.[20]In a letter dated 4 June 2025 BCC accepted that the toilet was inaccessible for Mr Fowell and the stairlift was “unsuitable”. The bedrooms and bathroom were upstairs. The authority had placed a commode on the ground floor and a bed in the living room. It stated that a through lift would be installed, which at that time was estimated to take about 4 weeks.[21]At a contested hearing in the High Court on 25 June 2025 HHJ Williams granted permission to apply for judicial review and an interim mandatory order that BCC should secure suitable accommodation for the respondent and her brother by no later than 16 July 2025. BCC had not produced summary grounds of defence. In his judgment the judge expressly treated BCC’s letter of 4 June 2025 as an acceptance that 7, Holden Close was unsuitable [10] and [14]. He also recorded a statement on behalf of BCC at the hearing that it intended to carry out works to that property to make it suitable. However, no firm timescale or schedule of works had been produced [13].[22]BCC did not appeal against the interim mandatory injunction.[23]On 16 July 2025 BCC sent a letter to the respondent offering 22, Langdon Walk again as temporary accommodation until long-term housing could be arranged. The letter also said that the property was considered to be suitable for the respondent and her brother and that it would be reasonable for her to accept it, despite the fact that on 14 October 2024 the authority had issued a review decision saying that it was unsuitable. It has not been suggested that any adaptations had been carried out to the flat in the meantime.[24]On 17 July 2025 the respondent issued an application to commit BCC for contempt for failing to comply with the interim mandatory order made by HHJ Williams.[25]On 22 July 2025 BCC offered bed and breakfast accommodation at a hotel. This was said to be temporary accommodation until the works at 7, Holden Close were completed.[26]On the same day the respondent’s solicitor wrote to BCC to say that hotel accommodation would be unsuitable as had previously been the case. The solicitor queried whether the authority had carried out a proper assessment taking into account the requirements which had previously been identified by its occupational therapist.[27]In a letter dated 24 July 2025 BCC withdrew the offer of 22, Langdon Walk and described the hotel offered in its place as “emergency accommodation”. The letter also indicated that a works schedule for 7, Holden Close should be completed by the end of July 2025.[28]On 28 July 2025 the respondent’s solicitor wrote to BCC saying that the respondent had suffered a sudden decline in mental health and was unable to care for her brother. Mr Fowell had been admitted to hospital after self-harming. He returned to 7, Holden Close. Meanwhile, on 1 August 2025 the respondent signed an exclusive licence agreement with Windrush Alliance UK CIC to occupy Room 1, 48 Sycamore Road, Birmingham, which is supported accommodation. Her evidence in the High Court proceedings was that she went to occupy Room 1 for a few days’ respite while suffering from a breakdown in mental health and not as her only or principal home. In emails to BCC at the time the respondent’s solicitors explained that she needed to spend some time away from her brother while she was recovering from her breakdown.[29]On 22 September 2025 BCC sent a letter to the respondent stating that it had discharged its duty to make accommodation available to her under s.193(2) of the HA 1996, on the grounds that she had left “the temporary accommodation” provided for her at “7, Holden Close”. Thus, she had voluntarily ceased to occupy that property as her “principal home” and so, it was said, BCC’s duty to her had ceased pursuant to s.193(6)(d) of the HA 1996. The letter pointed out that the respondent had a right to a review of that decision under s.202 of the Act.[30]In a reply dated 24 September 2025 the respondent’s solicitors stated that their client had returned to 7, Holden Close after a few nights at 48, Sycamore Road. They also pointed out that the main adaptation works at 7, Holden Close had not been carried out and a timetable for their execution had still not been provided.[31]The substantive hearing took place on 8 October 2025 before HHJ Rawlings. On 21 November 2025 he handed down his judgment and granted a declaration that: “The defendant has been and remains in breach of the main housing duty under section 193(2) Housing Act 1996 owed to the respondent from 2 July 2024”.[32]In summary, the judge decided that:(1) The temporary accommodation at 7, Holden Close, 22, Langdon Walk and the hotel had not been suitable. Because of BCC’s failure to make suitable accommodation available for the respondent and her brother, BCC was in breach of its duty to the respondent under s.193(2) of the HA 1996;(2) BCC’s duty to the respondent under s.193(2) had not ceased by virtue of s.193(6)(d). The respondent had not voluntarily ceased to occupy as her only or principal home the accommodation at 7, Holden Close, made available for her occupation. The accommodation to which s.193(6)(d) refers must be “suitable”. The relevant property was unsuitable;(3) Judicial review was available to the respondent as a remedy notwithstanding the availability of review by BCC and an appeal to the County Court;(4) The interim mandatory order should be made final, applying the principles in R (Imam) v Croydon London Borough Council [2023] UKSC 45; [2025] AC 335.[33]On 27 November 2025, at a hearing dealing with consequential matters, the judge made a final order requiring BCC to secure suitable accommodation for the respondent and her household by no later than 18 December 2025. The judge also granted BCC permission to appeal to this Court on two grounds:(1) Whether it had been appropriate for him to exercise the court’s judicial review jurisdiction in relation to s.193(6)(d), given that alternative remedies had been available to the respondent under the HA 1996; and(2) Whether he had been correct to interpret s.193(6)(d) of the HA 1996 as requiring that the “accommodation made available” was “suitable”. The judge refused permission to appeal on other grounds.[34]On 16 January 2026 the respondent’s solicitor wrote to BCC as follows:
“We are writing to confirm changes to our client’s personal circumstances which affect the factual matrix in this case. After a period of enforced separation from her brother, our client no longer seeks accommodation where she and her brother, Ian Fowell, can live together. We are not instructed to apply to lift the stay on the mandatory order made by the Court of Appeal in respect of the order made by Rawlings J [sic], and are agreeable to the discharge of said order. In the circumstances, and as a result of the recent developments, it is our view that your client’s appeal to the Court of Appeal has become academic. We will be sending a copy of this letter to the Civil Appeals Office.”
BCC disagreed with the suggestion that the appeal was academic.[35]Meanwhile, BCC had applied to this court for permission to appeal on additional grounds. At a hearing on 29 January 2026 Lewis LJ granted permission to appeal on Grounds 3 to 6: (3) If the judge had been entitled to entertain judicial review proceedings in relation to the s.193(6)(d) issue, he erred in deciding the matter for himself rather than applying public law principles; (4) The judge erred in interpreting BCC’s letter of 4 June 2025 as having accepted that 7, Holden Close was “unsuitable”; (5) The respondent’s challenge to the suitability of the accommodation offered should have been dealt with by a review by BCC followed by an appeal to the county court under the HA 1996, not judicial review; (6) If, however, the judge had been entitled to entertain judicial review proceedings in relation to the suitability issue, he erred in deciding the matter for himself rather than applying public law principles. Lewis LJ refused BCC permission to appeal on grounds 7 and 8. His formal order was made on 25 February 2026.[36]The Appellant’s Notice seeks an order from this Court setting aside both the final mandatory order and the declaration granted by the judge (see [31] and [33] above).[37]Lewis LJ considered that the issue of whether the appeal is academic, and if so whether the court should exercise its discretion to entertain it, should be left to be addressed by the court hearing the appeal. He also continued the stay of the mandatory order which had been made by HHJ Rawlings.[38]On 6 March 2026 HHJ Rawlings directed that the committal proceedings brought by the respondent against BCC should be stayed pending the final determination of the appeal to this court.

Statutory framework

[39]Section 175 of the HA 1996 defines the circumstances in which a person is to be treated as homeless or threatened with homelessness. The key question is whether “he has no accommodation available for his occupation” which satisfies certain criteria.[40]By s.175(3): “A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”.[41]By s.176 accommodation is treated as “available for a person’s occupation” only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or who might reasonably be expected to do so. In this case, there was no issue about Mr Fowell being a person who normally resided with the respondent at the relevant times.[42]Section 183(1) provides that “the following provisions” of Part 7 apply where a person applies to a local housing authority for assistance in obtaining accommodation and the authority have reason to believe that he is or may be homeless or threatened with homelessness.[43]Where an authority has reason to believe that an applicant is homeless or threatened with homelessness, they are under a duty to make such enquires as are necessary to identify whether any duty under Part 7 is owed to that person (s.184(1)) or whether he has a local connection with the district of another local housing authority (s.184(2)). On completing their enquiries the authority must notify the applicant of their decision and, if adverse to his interests, give reasons (s.184(3)). They must also inform the applicant of the right to request a review (s.184(5)).[44]Section 189 defines those persons who are treated as having a “priority need for accommodation”. They include a person who is vulnerable as a result of physical disability, “or with whom such a person resides or might reasonably be expected to reside”.[45]Section 188 imposes on an authority an “interim duty to accommodate in case of apparent priority need”. Typically this duty may arise pending the authority’s decision as a result of their enquiries. If the authority has reason to believe that an applicant may be homeless, eligible for assistance (which refers to aspects of immigration status) and has a priority need, they must secure that accommodation is available for the applicant (s.188(1)). Section 188 goes on to define the circumstances in which the interim duty to accommodate comes to an end. They include the authority notifying the applicant of their decision as to what other duty (if any) they owe him or her under Part 7 (s.188(1ZB)).[46]Section 191 defines whether a person has become homeless intentionally. This is relevant for determining the nature of any duty which an authority may owe going beyond the interim duty under s.188. By s.191(1):
“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”
[47]Section 190 applies where a local housing authority are satisfied that an applicant is homeless (and eligible for assistance) and has a priority need, but he or she became homeless intentionally. In such a case by s.190(2):
“The authority must— (a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and (b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.” (a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and (b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.”
[48]Section 193 applies where a local housing authority are satisfied that an eligible, homeless applicant has a priority need, but are not satisfied that he or she became homeless intentionally. In such a case section 193(2) imposes the “main housing duty”:
“(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”
Under s.198 the authority may, among other things, refer the case of an applicant with a priority need, but who is not homeless intentionally, to another authority if neither the applicant, nor any person reasonably expected to live with him, has a local connection (defined in s.199) with the authority to which he made his application, but does have a local connection with that other authority.[49]Once the duty in s.193(2) arises it continues to apply to the authority until it ceases by virtue of any of the subsequent provisions of s.193.[50]By s.193(5) the duty ceases in the following circumstance:
“The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.”
[51]The present case is concerned with para.(d) in s.193(6):
“(6) The local housing authority shall cease to be subject to the duty under this section if the applicant— (a) ceases to be eligible for assistance, (b) becomes homeless intentionally from the accommodation made available for his occupation, (c) accepts an offer of accommodation under Part VI (allocation of housing), or (cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord, (d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.” (a) ceases to be eligible for assistance, (b) becomes homeless intentionally from the accommodation made available for his occupation, (c) accepts an offer of accommodation under Part VI (allocation of housing), or (cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord, (d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.”
[52]Section 205 introduces a group of sections which deal with the discharge of functions by local housing authorities and explains some of the shorthand used in the legislation: “The following sections have effect in relation to the discharge by a local housing authority of their functions under this Part to secure that accommodation is available for the occupation of a person— section 206 (general provisions), … (2) In sections 206 and 208 those functions are referred to as the authority’s ‘housing functions under this Part’. …” section 206 (general provisions),[53]Section 206(1) is of particular relevance to this appeal:
“(1) A local housing authority may discharge their housing functions under this Part only in the following ways— (a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.” (a) by securing that suitable accommodation provided by them is available, (b) by securing that he obtains suitable accommodation from some other person, or (c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”
[54]Section 202 gives an applicant the right to request a review by the housing authority of their decision if it appears in the list in subs.(1). Those decisions include:
“(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 189B to 193C and 195 … (duties to persons found to be homeless or threatened with homelessness),” and “(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193(7), …”
[55]A request for a review must be made within 21 days from the day on which the applicant was notified of the authority’s decision, unless the authority agree to an extension (s.202(3)). If a request is duly made, the authority is obliged to review their decision (s.202(4)). The authority must notify the applicant of their decision (s.203(3)) and must give reasons if they confirm the original decision on any issue against the interests of the applicant (s.203(4)).[56]Section 204(1) confers on an applicant who asked for a review under s.202 a right of appeal on a point of law: “(1) If an applicant who has requested a review under section 202—(a) is dissatisfied with the decision on the review, or(b) is not notified of the decision on the review within the time prescribed under section 203, he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.” (a) is dissatisfied with the decision on the review, or (b) is not notified of the decision on the review within the time prescribed under section 203,[57]An appeal under s.204 must be brought within 21 days of the applicant being notified of the decision on the review or the expiry of any time limit for the giving of such notification (s.204(2)), unless time for appealing is extended under s.204(2A).[58]The County Court’s powers on an appeal under s.204 are given by subs.(3):
“On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.”
[59]Section 204(4) gives a local housing authority power to secure that accommodation is available for an applicant to occupy pending the final determination of his appeal:
“Where the authority were under a duty under section 188, 190, 199A or 200 to secure that accommodation is available for the applicant’s occupation, … they may secure that accommodation is so available— (a) during the period for appealing under this section against the authority’s decision, and (b) if an appeal is brought, until the appeal (and any further appeal) is finally determined.” (a) during the period for appealing under this section against the authority’s decision, and (b) if an appeal is brought, until the appeal (and any further appeal) is finally determined.”
[60]In Ali v Westminster City Council [1999] 1 WLR 384 this Court held that, as matters then stood, the County Court had no jurisdiction to grant an injunction requiring a local housing authority to provide accommodation under s.204(4) pending an appeal. Any jurisdiction to grant such an injunction had to be located in statute law. The issue turned on s.38 of the County Courts Act 1984 and on whether it could be said that a homeless person had a pre-existing substantive right to accommodation to which the grant of an injunction might be ancillary. But there was no such right. The complaint simply related to a local authority’s refusal to exercise its power. There was no cause of action against that authority.[61]Section 11 of the Homelessness Act 2002 addressed this lacuna by inserting s.204A into the HA 1996. This created a new right of appeal against a decision by an authority not to exercise its power under s.204(4) to provide accommodation pending an appeal under s.204. Under s.204A(4) the County Court may order the authority to provide accommodation under that power.

Has the appeal become academic?

[62]In general this Court does not sit to hear appeals which have become academic. In R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 the House of Lords accepted that in cases involving a question of public law it had a discretion to hear an appeal even if the matter raised would not directly affect the rights and obligations of the parties themselves, if there was a good reason in the public interest for doing so (at pp.456H to 457A). This was agreed by counsel in the case (at p.456G). Earlier authorities were distinguished on the basis that they involved private law rights (p.456H). The House nevertheless refused to exercise its discretion in this case (p.457B). The key paragraphs of Lord Slynn’s are at pp.456G to 457B:
“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case. The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”
[63]In judicial review proceedings, the Court of Appeal has subsequently referred to Salem and exercised its discretion to hear an appeal on a point that has become academic. For example, the case of R (Dolan and others) v Secretary of State for Health and Social Care and another [2020] EWCA Civ 1605; [2021] 1 WLR 2326 concerned the lawfulness of Coronavirus lockdown restrictions. The Court held that the claim was academic because the regulations under challenge had been repealed (at para 39). The Court decided that the case was one in which the Court should nevertheless exercise its discretion to hear the appeal, because it was in the public interest to do so (at [41] to [42]).[64]The authorities establish that:(i) this Court will not ordinarily determine academic appeals;(ii) a discretion exists in public law cases; but(iii) that discretion is exercised sparingly, and generally only where a discrete issue of general importance arises which is unlikely to depend on the particular facts.[65]As we have mentioned above, in a letter dated 16 January 2026, solicitors acting for the respondent wrote to BCC to inform them of changes to her personal circumstances. They said that, after a period of enforced separation from her brother, she no longer seeks accommodation where they can live together. They were not instructed to apply to lift the stay on the mandatory order which had been made by Lewis LJ and were agreeable to the discharge of that order. In the circumstances, and as a result of the recent developments, they said that it was their view that BCC’s appeal to this Court had become academic.[66]It will be apparent that that letter only referred in terms to the mandatory order which had been made by the High Court. That order was sealed on 15 December 2025. However, an earlier order sealed on 21 November 2025 had included the following declaration, at [1], which for convenience we set out again:
“The defendant has been and remains in breach of the main housing duty under section 193 (2) Housing Act 1996 owed to the Claimant from 2 July 2024.”
[67]On behalf of BCC, it was submitted that this appeal has not become academic, for three main reasons:(1) There remains a dispute between the appellant and the respondent about whether a housing duty under s.193(2) remains in existence. The respondent has made clear that she still seeks performance of the duty in her own right, albeit that she no longer wishes to include her brother as a member of her household.(2) Given that the respondent continues to assert that a s.193(2) duty is owed to her, the question of suitability also remains live. There is nothing to prevent the respondent, perhaps on a further change of circumstances or even change of mind, from reasserting the need to live with her brother and therefore seeking to uphold the mandatory order made in her favour or a further mandatory order on the same basis as in these proceedings.(3) The outcome of this appeal is also relevant to the committal proceedings that are outstanding in the High Court. On 6 March 2026, at a case management conference in those proceedings, Judge Rawlings had stayed the committal application pending the outcome of the appeal because he considered that this Court’s views on the issues under appeal might well clarify the issues arising on the committal application. The respondent did not dispute that this was so.[68]If the only order that had been made in this case had been the mandatory order, we would not have been satisfied that it was appropriate for this Court to consider this appeal. We would then have considered that it had become academic. Although there are circumstances where, in a public law case, this Court has the discretion to consider an appeal even if it has become academic on its facts, this would not have been such a case where we would have taken that view. The reasons for this are as follows:(1) There is no pure issue of law, for example an issue of statutory interpretation, which could be cleanly separated from the particular facts of this case. There are no other cases in the pipeline which would inevitably have to be decided by this Court.(2) There has been a fundamental change in the material circumstances in which the mandatory order was made. The suggestion on behalf of the appellant, that the respondent might assert in the future that a mandatory order ought to be made in her favour, illustrates the fact that the appeal has become academic as things stand now. Those references are to hypothetical or contingent circumstances, which may or may not arise in the future. Any application would have to be considered at that stage on its merits and, if the case went to court, would have to be considered by a court at that stage in the light of the then circumstances. This reinforces our view that the appeal against the mandatory order has become academic and it would not be appropriate for this Court to consider an appeal if it were limited to that order.(3) The reference to the committal proceedings before the High Court does not persuade us otherwise. Those committal proceedings relate to a past event, namely the interim order made by Judge Williams and whether that was breached at the relevant time. Whatever happened to the order subsequently, that would be an issue which in principle could be decided by the High Court and would have to be decided by reference to past events. It would not be appropriate for this Court to trespass on the province of the High Court in relation to the merits of any such application for committal.[69]What has, however, persuaded us that this appeal has not become entirely academic is the existence of the declaration made by the High Court which we have set out above. Although the respondent, both in the letter written on her behalf on 16 January 2026 and at the hearing before this Court, conceded that she did not invite us to restore the mandatory order which had been made in her favour by the High Court, the respondent has not stated that she agrees to the discharge or setting aside of that declaration. The position therefore is that there is in place a declaration, which is binding on the parties, and which the appellant submits ought not to have been made and ought to be set aside by this Court on appeal. There is therefore a live dispute between the parties. In those circumstances, we have reached the conclusion that the appeal has not become academic, so far as it relates to the declaration made by the High Court, and this Court must determine the appeal on its substantive merits. This is not a question of discretion, which only arises if the court concludes that an appeal has become academic.[70]At the hearing before us, Mr Nabi sought to persuade us that the appellant had been refused permission by Lewis LJ to appeal on this ground, which related only to the declaration. He submitted that permission had been refused on ground 8, which was that the judge erred in law in holding that was in breach of its obligations under s.193(2) and the interim order of Judge Williams of 25 June 2025. We are not persuaded by that argument. We accept the submission made by Mr Manning that, in substance, the complaint about the declaration in this case is supported by all of the grounds of appeal, including the grounds on which permission has been granted. Accordingly, we intend to proceed to consider the substantive appeal on its merits.

Grounds 1 and 5: Adequate alternative remedy

[71]BCC submits that the judge should not have entertained an application for judicial review in relation to the issues under ground 1, whether its duty under s.193(2) had ceased by virtue of s.193(6)(d), and under ground 5, whether the accommodation offered under s.193(2) was suitable. Both issues could and should have been the subject of a request for a review by BCC under s.202, the first falling within s.202(1)(b) and the second within s.202(1)(f). If the respondent had been dissatisfied with the outcome of that review, her remedy would then have been to appeal to the County Court under s.204.[72]In R (Glencore Energy UK Limited) v Revenue and Customs Commissioners [2017] EWCA Civ 1716; [2017] 4 WLR 213 Sales LJ said at [55]-[56] that the suitable alternative remedy principle is based on the idea that judicial review is a remedy of last resort, to ensure that the rule of law is respected where no other procedure is available to achieve that objective. In considering what should be treated as a suitable alternative remedy, the court should have regard to the provision made by Parliament to cater for the usual range of cases in terms of procedure and relief. If Parliament has made it clear by legislation that in its view a particular type of procedure is appropriate to deal with a standard case, the court should be slow to intervene by way of judicial review, whether together with or instead of that statutory procedure.[73]The HA 1996 introduced the procedures in ss. 202 and 204 for review followed by appeal to the County Court. As Auld LJ observed in Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306 at p.314, the purpose of s.204 of the HA 1996 was to transfer the “main strain” of the High Court’s judicial review work in relation to homelessness cases under Part 7 of the Act to County Courts. As a result, it became generally inappropriate to bring a claim for judicial review where the more appropriate appeal route under s.204 is available. It was also considered that, as a matter of policy, challenges under Part 7 are better dealt with by local courts attuned to local circumstances (see Lord Woolf MR in R v Brighton and Hove Council, ex parte Nacion [1999] 31 HLR 1095 at p.1100).[74]Section 204(1) provides for an appeal to be made to the County Court on a point of law. That enables the County Court to review a relevant decision of a local housing authority on essentially the same public law principles, including irrationality, as are applied in judicial review (Edwards v Bairstow [1956] AC 14, at pp.35-36 and Nipa Begum at pp.312-3). In addition, the review decisions from which an appeal may be brought under s.204 are required to be reasoned (s.203(4)).[75]In R (Bano) v Waltham Forest London Borough Council [2025] EWCA Civ 92; [2025] 1 WLR 2557 Newey LJ reviewed the case law on the use of judicial review in Part 7 cases and summarised the position as follows:
“…it was clearly Parliament’s intention in enacting section 202 of the 1996 Act that challenges to decisions such as are identified in section 202(1) should be pursued by way of review and, if necessary, appeal to the county court, not through judicial review. It is also noteworthy that Parliament thought it appropriate to require a request for a review of a decision to be made within 21 days after its notification unless the local housing authority allowed a longer period.”
A claimant who has, or had had, an alternative remedy under s.204 of the HA 1996, must show exceptional circumstances to justify bringing a claim for judicial review.[76]The legislative policy that Part 7 challenges should be pursued under s.204 where that procedure is available helps to conserve the finite resources not only of the High Court but also the Court of Appeal. If a person pursues an appeal under s.204, any further appeal to the Court of Appeal will be subject to the second appeals test (see s.55(1) of the Access to Justice Act 1999 and CPR 52.7). In that event permission to appeal will not (usually) be granted unless the appeal, in addition to having a real prospect of success, raises an important point of principle or practice. On the other hand, if a person is allowed to bring a claim for judicial review instead of an appeal under s.204 to the County Court, any appeal to the Court of Appeal against the High Court’s decision will be a first appeal and the application for permission to appeal will be subject to the less demanding test in CPR 52.6.[77]Mr Nabi submitted on behalf of the respondent that there were exceptional circumstances in this case to justify pursuing a claim for judicial review because the County Court had no power under s.204A to grant an interim or final mandatory order requiring BCC to provide accommodation. However, his submissions failed to demonstrate to us that the County Court lacked such power pending a decision on an appeal under s.204.[78]The issue raised when the present claim for judicial review was commenced was the suitability of temporary accommodation provided by BCC under its duty under s.193(2) of the HA 1996. That could have been the subject of a request for a review under s.202 as to whether BCC was complying with its duty under s.193(2), whether the accommodation offered was suitable and whether it would have been reasonable for the respondent to accept it (s.202(1)(b) and (f) and see Ravichandran v Lewisham London Borough Council [2010] EWCA Civ 755; [2011] PTSR 117 at [35] and Bano at [50]). If BCC’s review decision had been adverse to the respondent, she could have appealed against it to the County Court under s.204(1). Given that BCC had initially been under a duty to accommodate the respondent under s.188 of the HA 1996 (i.e. before it accepted that it was subject to a duty under s.193(2)), it is at least arguable that BCC had a power under s.204(4) to provide accommodation pending an appeal under s.204(1). On that basis, the respondent could have appealed to the County Court under s.204A against any refusal by BCC to exercise that power and asked the court to make an order requiring the authority to secure that accommodation was made available for her pending the appeal. The scheme enacted by Parliament makes it clear that an applicant should use the dedicated procedure under s.204A where the local authority had power to provide accommodation under s.204(4).[79]Furthermore, BCC’s decision on 22 September 2025 that its s.193(2) duty had come to an end by virtue of s.193(6)(d) could also have been challenged by review (s.202(1)(b)) and a subsequent appeal under s.204(1). The powers in s.204(4) and s.204A would also have been engaged.[80]We do not, however, decide grounds 1 and 5 on the basis of [78]-[79] above as we did not have the benefit of argument on whether relief would have been available under s.204A. Nonetheless, we consider that those grounds fail in any event, even if an order could have been obtained under s204A, because the judge’s conclusion at the substantive hearing that there were exceptional circumstances to justify proceeding with the judicial review cannot be impugned on appeal.[81]Both parties ought to have raised the alternative remedy issue from the very outset of the claim for judicial review. Pursuant to the duty of candour, the respondent ought to have explained in her statement of facts and grounds why it was considered that no suitable alternative remedy was available under the HA 1996, if that was thought to be the case. The respondent was obliged to deal with that issue in order to assist the judge dealing with the application for permission to apply for judicial review.[82]In any event, if BCC wished to contend that there was a suitable alternative remedy available so that judicial review should not be entertained, it ought to have raised that point at the outset. But BCC failed to serve any summary grounds of defence where the point should have been pleaded if it was going to be raised. The transcript of the judgment given by HHJ Williams on 25 June 2025 suggests that he did not receive any assistance on this issue.[83]Once permission and the interim injunction were granted, the matter proceeded to the substantive hearing on 8 October 2025. BCC did file detailed grounds of resistance but they still failed to raise any issue about alternative remedy and the inappropriateness of judicial review. In fact BCC did not raise this matter until its skeleton for the substantive hearing, which was only filed one day beforehand, which was far too late. Moreover, the point should have been properly and fully set out. Even then, the skeleton argument simply asserted that:
“the suitability of the accommodation provided is a matter for the authority to determine subject to an appeal to the county court and not for this court”
. Counsel did not provide any legal analysis or cite authority. He did not address the relief that the County Court could or could not grant. BCC did not explain why it had not taken the point earlier, indeed from the outset.[84]There was an air of unreality about the stance taken by BCC the following day at the substantive hearing on 8 October 2025. By that stage permission had been granted, witness statements and other evidence filed, and skeleton arguments prepared along with substantial bundles. The parties had incurred considerable costs. The court had committed its resources to the hearing of the claim. BCC’s alternative remedy objection did not deprive the High Court of jurisdiction to entertain the application for judicial review. The court still had a residual discretion to proceed with the claim in exceptional circumstances. If the respondent had pursued the review and appeal route, the County Court would have applied public law principles to the resolution of the issues. In all the circumstances, it was unreasonable for BCC to object to the claim being determined on the basis that judicial review is a remedy of last resort, by raising the matter for the first time at the very last moment when the case had reached trial in the High Court.[85]In these highly unusual circumstances, the judge rejected the alternative remedy objection and exercised the court’s discretion to continue with the judicial review proceedings (see [83]). We can see no error in that discretionary decision.[86]For these reasons grounds 1 and 5 must be rejected.

Grounds 3 and 6: whether the judge failed to apply public law principles

[87]The second substantive issue on this appeal arises from the appellant’s grounds 3 and 6. Ground 3 is that the judge erred in law in that his decision (that the duty under s.193(2) had not been lawfully discharged and therefore continued) was made on the substantive merits based on his weighing up of written evidence before him. In judicial review proceedings, it is submitted, the judge ought to have considered this issue on a public law basis, i.e. whether the decision whether the duty had ceased was a decision that was open to the local authority on the evidence, rather than by the judge seeking to determine for himself the merits of the decision.[88]Similarly, ground 6 is that the issue of suitability is one for the authority and not for the court. The question for the court ought to have been whether no reasonable authority could have concluded that the accommodation secured was suitable, and not whether the judge himself was “satisfied” that it was suitable: contrast, for example, the judgment at [57], [60], [65] and [68].[89]Mr Manning reminds this Court that, even on an appeal on a point of law to the County Court provided by s.204 of the HA 1996, it is settled law that it is not for the court to make its own decision of fact on the question of suitability. Since even that court has to apply judicial review principles, the jurisdiction of the High Court in a case such as this cannot be any wider. Further, Mr Manning submits that the judge appears to have placed the burden on the local authority to satisfy him that the accommodation was suitable rather than, as he should have done, to place the burden on the respondent to satisfy him that the accommodation was unsuitable.[90]As has frequently been said by the appellate courts, it will always be possible to have expressed what is said in a judgment in a better way, especially with hindsight. A judgment should be read fairly and as a whole, in the context of the way in which the issues and evidence were presented before the court at first instance.[91]In the present case, Mr Manning does not criticise the judge’s summary of the issues before him, at [37] of his judgment. He derived those issues from consideration of both the claimant’s detailed statement of facts and grounds and the appellant’s detailed grounds of resistance, as supplemented by the witness statement of Ms Gill, that the duty which BCC owed to the respondent had been discharged by reason of the matters set out in its letter of 22 September 2025. The judge summarised the three issues before him as follows:(1) Whether BCC has been and remains in breach of the duty owed to the claimant under s.193(2) of the HA 1996;(2) If BCC is in breach of that duty, should the interim mandatory order be made final?(3) Should the claimant (now respondent) be granted declaratory or any other relief?[92]It is also important to bear in mind that at no time had summary grounds of resistance been filed in this case. The detailed grounds of resistance, which were drafted by junior counsel for BCC, were dated 31 July 2025 and post-dated the judgment granting the interim mandatory order on 25 June. It was accepted there at [35] to [51] that the respondent had to be provided with suitable accommodation pursuant to s.193(2) of the HA 1996 but the submission was that BCC had attempted to do so in circumstances where the supply of housing and resources were extremely scarce, in particular for accessible properties. The submission was also made that judicial review is discretionary and that the court should not enforce the duty to provide suitable housing where the local authority was taking all reasonable steps. Attention was drawn to the proposition in the Supreme Court decision in Imam, that a court should not make a mandatory order to require compliance with a statutory duty where compliance is impossible: see Imam at [48]. The point was made that BCC was in the course of commissioning and carrying out works at 7, Holden Close to remedy the defects and that these works would render the property suitable because they would remedy the defects identified and provide adaptations which were necessary for the respondent’s household’s specific complex needs.[93]In the skeleton argument for BCC before the High Court, which was in the name of Mr Manning, dated 7 October 2025, the point was made, at [12], that the difficulty of the situation in which the local authority found itself, including by reference to the diminishing pool of properties available to them, meant that it had complied with the duty in s.193(2) to the extent that it could do so and any further compliance must be regarded as “impossible” as explained by the Supreme Court in Imam.[94]Mr Manning also complains about the way in which the judge addressed the question of whether the respondent had voluntarily ceased to occupy 7, Holden Close as her only or principal home. In addressing that question, at [82] of his judgment, Mr Manning submits the judge simply said that he was “not … satisfied” that she had done so and set out his own reasons for that conclusion by reference to the evidence, as if it were a matter for him.[95]In our view, when one reads the judgment fairly and as a whole, and in the context of the way in which the issues and evidence had been presented to the judge, he was in substance applying principles of judicial review and not simply determining questions of fact for himself, as if he were sitting in an ordinary civil jurisdiction. In any event, if we were wrong about that, we would accept Mr Nabi’s alternative submission, that, if the judge had correctly directed himself by reference to judicial review principles, he would have reached the same conclusion in any event. This is because, as matter of substance, the judge was of the view that it was not reasonable to expect the respondent’s brother to endure the conditions at 7, Holden Close for as long as he had been required to. For that reason, that property was not suitable. Although it is important not to take any passage out of context and in isolation, this can be seen, for example, from the judgement at [56] and [57]:
“56. In principle, I accept that, even though 7 Holden Close was originally offered to the Claimant on 6 May 2025 as being suitable and reasonable for the Claimant to occupy, without any suggestion that adaptions would be carried out to render it suitable, nonetheless 7 Holden Close could become an offer of suitable accommodation, by the offer of the Defendant made on 4 June 2025 to carry out adaptions to the property and to provide interim measures which mitigated the unsuitability of the property, whilst those adaptions were being carried out. It follows however, from that conclusion, that 7 Holden Close was not suitable for the Claimant’s occupation at least until the offer to make adaptions and to put in place mitigating measures was made on 4 June 2025 (however this was the same day as the Claimant and Ian moved into 7 Holden Close). 57. In order for me to accept Mr Manning’s submission that 7 Holden Close was rendered suitable by the Defendant’s offer of 4 June, I would need to be satisfied that the temporary arrangements to provide for Ian’s hygiene, toilet and sleeping, whilst they clearly would not be ideal arrangements, were arrangements which it would be reasonable to expect Ian to endure during his period when the adaptions were being carried out.”
[96]In substance, therefore, what the judge was saying was that 7, Holden Close was not suitable for the respondent’s occupation until the adaptations and mitigation measures had been put in place. At [60], the judge explained why 7, Holden Close “is not now and never has been suitable accommodation…”. He came to this conclusion for the following reasons:
“60. In my judgment 7 Holden Close is not now and has never been suitable accommodation for the Claimant and Ian for the purposes of Section 206 of the HA 1996. I come to this conclusion for the following reasons: a) in my judgement the temporary arrangements to provide for Ian’s hygiene, toilet and sleeping, with the provision of a commode, a bed placed downstairs and a care package to assist him with personal hygiene/toileting, would not make the property suitable for a period of anything more than the 4 week period that the Defendant originally suggested that it would take to carry out the adaptations, given the significant inconvenience and indignity that Ian would suffer during that period; and b) it has taken far longer than the Defendant’s estimate of 4 weeks to complete the adjustments, particularly the through lift giving Ian access to the first floor. Whilst Mr Manning suggests that the Defendant has done its best, but has been let down by its suppliers, it was the Defendant itself which provided the original estimate of 4 weeks to carry out the adaptions. There is no evidence before me that the Defendant checked delivery times with its suppliers before providing that 4 week estimate. In any event it is now over 4 months since the Claimant and Ian moved into 7 Holden Close and since the Defendant estimated that it would take only 4 weeks to carry out the adaptions. Not only have the works still not been carried out, but there is also no definitive date for their completion. The period of time for which Ian would be expected to endure the temporary arrangements for his hygiene/toilet/sleeping is therefore well beyond, in my judgement, a reasonable period during which he could be expected to endure those temporary arrangements for.”
[97]Turning to Mr Manning’s criticism of [82] of the judgment, again it seems to us that this cannot be read in isolation. It must be read fairly and in the context of the rest of the judgment, in particular [79], where the judge said that “made available” under s.193(6)(d) means suitable accommodation made available to the applicant for housing in one of the three ways set out in section 206. He concluded that:
“If the accommodation is not ‘suitable’ then the duty does not cease because the housing applicant ceases to occupy the accommodation as their only or principal home.”
The question whether that was a correct interpretation of s.193(6)(d) is one that arises under the next set of grounds which this Court must consider on this appeal. For present purposes, what is significant is that, if the judge’s interpretation of the legislation was correct, the consequence was, if the accommodation was not suitable, then it could not be said that the respondent had ceased to occupy it as her only or principal home: that is the question which the judge was addressing at [82] of his judgment.[98]Everything therefore comes back to the question of whether the judge approached the question of the suitability of the accommodation at 7, Holden Close in the correct way. We have reached the conclusion that he did, as a matter of substance, apply judicial review principles, for the reasons we have set out above. In any event, as we have mentioned, we would accept Mr Nabi’s alternative submission that, even if the judge fell into error and did not apply judicial review principles, there was only one view which reasonably could have been arrived at, given the evidence and findings that the judge made. That view was that the local authority could not reasonably conclude that the property at 7, Holden Close was suitable for the respondent and her brother unless and until the remedial works had been put into place.[99]As Mr Nabi submitted to this court, it is important to appreciate that the judge was not assisted by having relevant evidence placed before him (at the right time) on behalf of BCC. In particular, he was not given a reasoned decision by the local authority as to why it took the view that the property at 7, Holden Close was suitable and at what point in time. An application was made on its behalf to file late evidence but that was refused by the judge: no appeal has been brought against that refusal. The judge therefore had to proceed on the basis of the relatively limited evidence that was before him. This included the letter from the local authority of 4 June 2025.[100]The material before the judge also included the judgment of Judge Williams when he had made the interim mandatory order on 25 June 2025. It was clear from that judgment that conditions were at that time intolerable and degrading, and the court rejected the suggestion that the local authority had acted reasonably. Further, the works had still not been completed by the date of the hearing before Judge Rawlings in October 2025. In particular, the works had not been completed by the deadline of 16 July, which had been set by Judge Williams. Against that background, Mr Nabi submits that it is significant that the local authority made an offer of accommodation: 22, Langdon Walk. He submits that it was implicit in that offer that 7, Holden Close was not suitable.[101]Furthermore, as Mr Nabi submits before this court, the judge was faced with a difficult task because many of the submissions before him focused on whether court should exercise its Imam jurisdiction. That jurisdiction is a discretionary one for the court itself to perform. We agree with Mr Nabi that the way in which the judge expressed his reasons is understandable given the nature and context of the issues as the parties had focused on them before him.[102]For those reasons we have reached the conclusion that the judge did not fall into error and, as a matter of substance, did apply judicial review principles. Even if that were wrong, we have reached the conclusion that there was only one reasonable view that the local authority could have come to upon the evidence and other material before the judge, namely that the property at 7 Holden Close was not suitable for the respondent and her brother to occupy. Accordingly, we would reject grounds 3 and 6 on this appeal.

Grounds 2 and 4: construction of s.193(6)(d) of the HA 1996

(d) of the HA 1996

[103]The judge held at [79] that under s.193(6)(d) of the HA 1996 an applicant only ceases to occupy “accommodation made available for his occupation” if the accommodation was “made available” to him by the local housing authority and was also “suitable” for him and those living with him. Accordingly, if the relevant accommodation was not “suitable”, the authority’s duty under s.193(2) did not come to an end by virtue of s.193(6)(d) if the applicant ceased to occupy that accommodation as his only or principal home.[104]Under ground 2 Mr Manning submitted for BCC that on a true construction s.193(6)(d) does not import a requirement that the accommodation “made available” was suitable. In this respect he contrasts s.193(6)(d) with s.193(5), which refers expressly to the suitability of the accommodation offered to an applicant.[105]In R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 Lord Hodge DPSC stated at [29]: “Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained…” (see also R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594 at [42].[106]Part 7 of the HA 1996 refers to accommodation which is “made available” to an applicant for his occupation in several places (see e.g. s.189B(7)(d) s.193(6)(b), s.195(8)(e), s.208(3) and (4)) as well as s.193(6)(d)). The phrase refers to the discharge of the authority’s obligations under Part 7 to secure that accommodation is available for occupation by the applicant as, for example, in s.193(2).[107]Section 206 interlocks with the obligations of local housing authorities to secure that accommodation is available for an applicant. An authority may only discharge their housing functions under Part 7 in one of three ways:(1) by securing that they provide suitable accommodation for an applicant;(2) by securing that he obtains suitable accommodation from some other person; or(3) by the authority giving advice and assistance to secure that suitable accommodation is available from some other person. Thus, an authority may only discharge its housing functions under Part 7 by securing that accommodation is made available to an applicant which is suitable. If the accommodation is unsuitable the relevant function, including any duty, is not discharged.[108]In Birmingham City Council v Ali [2009] UKHL 36; [2009] 1 WLR 1506 Baroness Hale stated at [18]:
“Whether the authority are securing interim accommodation under section 188(1) pending a decision, or securing accommodation after the decision has been made under section 190(2) or 193(2), they may provide the accommodation themselves or secure that it is provided by someone else. However, the accommodation secured has to be ‘suitable’: the 1996 Act, section 206(1).”
[109]Thus, read properly in context, s.193(6)(d) applies to a case where a person voluntarily ceases to occupy as his only or principal home accommodation which has been made available to him in accordance with s.206, that is accommodation which is “suitable” for him. But if that accommodation is not suitable then it has not been made available in accordance with s.206 and the duty under s.193(2) is not discharged by virtue of s.193(6)(d).[110]This reading of s.193(6)(d) accords with other provisions in s.193 for bringing the duty in s.193(2) to an end. By s.193(6)(b) the obligation ceases if an applicant becomes homeless intentionally from the accommodation “made available for his occupation”. In R (Best) v Oxford City Council [2009] EWHC 608 (Admin) Geraldine Andrews QC, sitting as a Deputy High Court judge, held that s.193(6)(b) cannot be relied upon where the accommodation said to have been “made available” is not suitable ([23] and [119]). Mr Manning accepted that that is correct. We also agree with that conclusion. But in our judgment, there is no basis for interpreting s.193(6)(d) differently. Section 206(1) applies in both cases. The rationale is that the obligation in s.193(2) does not cease, and it is not discharged, where the local housing authority has failed to comply with it.[111]For the purposes of s.193(6)(b) a person does not become homeless intentionally through ceasing to occupy accommodation available for him if it would not have been reasonable for him to continue to occupy that property (s.191(1)). The interpretation of s.193(6)(b) adopted in Best is consistent with that test for intentional homelessness. BCC’s interpretation of s.196(3)(d) is inconsistent with the purpose of s.206 and with s.196(3)(b). It would allow a local housing authority to escape its duty under s.193(2), and leave an applicant without a remedy, by offering him unsuitable accommodation which he then vacates because of that unsuitability, although that would not bring the duty to an end under s.193(6)(b).[112]The interpretation of s.193(6)(d) which the judge accepted is also consistent with other parts of s.193. Under s.193(5) the duty in s.193(2) comes to an end where an applicant refuses an offer of accommodation which the authority considers to be suitable and therefore he does not go into occupation of the property. Any issue about suitability can be resolved through the review and appeal procedures. Similarly, s.193(7) and (7AA) also bring the duty in s.193(2) to an end where an applicant refuses an offer of certain other types of accommodation, subject to the resolution of any issue as to suitability. Under s.193(6)(c) and (cc) and s.193(7AA) the main housing duty ceases where an application accepts an offer of accommodation under Part 6 of the HA 1996 or certain accommodation in the private sector. The applicant has ceased to be homeless by accepting an offer of accommodation which, it may reasonably be supposed, the applicant considers suitable.[113]Mr Manning submitted that this interpretation of s.193(6)(d) would have unreasonable consequences which Parliament could not have intended. An applicant could choose to leave accommodation which BCC had “made available” to him in Birmingham and move to Manchester. But, if in those circumstances that accommodation had been unsuitable, the duty under s.193(2) would not come to an end. We are not impressed by this submission. First, a person who moves away from an authority’s area is unlikely to want to enforce any duty under s.193(2) against that authority. Second, the grant of mandatory relief by the court is discretionary. An attempt by a person living in a different area to enforce a duty under s.193(2) which arose in an area which he has left may well be treated as abusive, so that relief is refused. Third, the concerns raised in [111] have far greater significance.[114]For these reasons we reject ground 2 of the appeal.[115]Under ground 4 Mr Manning submitted that the judge erred at [52] by interpreting BCC’s letter of 4 June 2025 as having accepted that 7, Holden Close was unsuitable for the respondent and her brother.[116]It is to be noted that [52] of the judgment formed only part of the judge’s reasoning on the issue whether 7, Holden Close had been suitable accommodation for the respondent and her brother ([47] to [60]). That reasoning, which did not depend upon the letter of 4 June 2025, has been considered under ground 3.[117]At [52] the judge acknowledged that the letter of 4 June 2025 did not explicitly accept that the property was unsuitable. Nevertheless, it did state that the downstairs toilet was too narrow to be accessible by Mr Fowell in his wheelchair and the stairlift was “unsuitable”. The judge then went on to refer to the commode and bed on the ground floor which had been provided by the authority and the proposal to install a lift to enable access to be gained to all facilities. The judge then said that the letter did accept that 7, Holden Close was not suitable for occupation, in particular by a wheelchair user, in the condition in which it was on 4 June 2025. No possible objection could be taken to that reading of the letter, which plainly relied upon the need for adaptations to render the property accessible and therefore suitable for a wheelchair user.[118]Ground 4 must therefore be rejected.

Conclusion

[119]For the reasons we have given, we would dismiss BCC’s appeal.

Lord Justice Phillips:

[120]I agree.