The applicant was the tenant of a property which she occupied with four children. Her income consisted of housing benefit, income support, child tax credits and child benefit. The housing benefit she received did not meet the rent due and she fell into rent arrears, as a result of which she was given notice to quit by her landlord. She subsequently applied to the local housing authority for accommodation as a homeless person under Part VII of the Housing Act 1996. The housing authority rejected her application on the ground that she had become homeless intentionally, finding that she had lost her previous accommodation as a result of her deliberate act in failing to pay the rent and that it would have been reasonable for her to continue to occupy the accommodation for the purposes of section 191(1). In particular, the housing authority found that the accommodation had been “affordable” for the applicant within article 2 of the Homelessness (Suitability of Accommodation) Order 1996, read with statutory guidance issued by the Secretary of State, in that there was enough flexibility in her overall household income to meet the shortfall in rent. The authority’s decision was confirmed on review. The applicant’s appeals were dismissed by the judge and the Court of Appeal respectively.
On the applicant’s further appeal—
Held, appeal allowed. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 required the local authority to take into account all sources of income including social security benefits but also required a comparison with the applicant’s reasonable living expenses. Assessment of what was reasonable required an objective assessment and could not depend on the subjective view of the case officer. The Secretary of State’s guidance, at the relevant time, recommended that accommodation should be regarded as unaffordable if the applicant’s residual income after paying rent would be less than the level of income support. Even if that recommendation in respect of income support were not interpreted as extending to benefits for children, the lack of a specific reference did not make the level of those benefits irrelevant. If comparison with the relevant benefit levels were material to the assessment of the applicant, it was difficult to see why it should be any less material in assessing what was reasonable by way of living expenses in relation to other members of the household. The review officer had asked the wrong question in considering whether there was sufficient flexibility in the claimant’s income to meet the shortfall between her rent and housing benefit. The correct question was to consider the claimant’s reasonable living expenses, having regard to both her needs and the needs of the children, including the promotion of their welfare. Applying that test, the claimant’s residual income after paying rent had been below the subsistence level of welfare benefits considered appropriate for the household. Consequently, the previous accommodation had not been affordable for the claimant, it had, therefore, not been reasonable for her to continue to occupy that accommodation and, accordingly, she was not intentionally homeless (paras 34–37).
Per curiam. There is an unfortunate lack of consistency among housing authorities in the treatment of “affordability”, and a shortage of reliable objective guidance on reasonable levels of living expenditure. It is to be hoped that steps will be taken to give clearer guidance to authorities in the future (para 41).
James Stark and Tom Royston (instructed by Community Law Partnership, Birmingham) for the applicant.
Jonathan Manning and Brooke Lyne (instructed by Legal and Democratic Services, Birmingham City Council) for the local authority.
Martin Westgate QC, Shu Shin Luh and Connor Johnston (instructed by Freshfields Bruckhaus Deringer llp) for Shelter and Child Poverty Action Group, intervening.