The UK Supreme Court has found a decision by Birmingham City Council that a mother was ‘intentionally homeless’ to be unlawful.
The appellant, Ms Samuels, was an assured shorthold tenant in Birmingham, where she lived with four children. In July 2011, having fallen into rent arrears, she was given notice to leave. She applied to the Birmingham City Council to be treated as homeless under Part VII of the Housing Act 1996. The Council decided that she was intentionally homeless, on the grounds that the rental accommodation was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent. That decision was ultimately confirmed on review by the council, the County Court and the Court of Appeal. She appealed to the Supreme Court.
Part VII of the 1996 Act states that the relevant authority, in this instance Birmingham City Council, is under a full duty to secure accommodation to a person found homeless, if certain conditions have been satisfied. Under Section 193(1), one of the necessary conditions is that they are not satisfied that the person “became homeless intentionally”. The satisfaction of this condition depends on whether the deliberate actions or inaction of the person resulted in the cessation of occupation of accommodation which was available for her occupation and “which it would have been reasonable for [her] to continue to occupy”.
In determining whether it would be reasonable for a person to continue to occupy accommodation, the Council is obliged to consider whether that accommodation is affordable under Article 2 of the Homelessness (Suitability of Accommodation) Order 1996. That includes consideration of the financial resources available to that person, including “social security benefits”, and consideration of the person’s “other reasonable living expenses”.
The local authority is also required to have regard to guidance provided by the Secretary of State within the Homelessness Code of Guidance for Local Authorities (‘the Code’) of 2006. Paragraph 17.40 of the Code states:
"In considering an applicant’s residual income after meeting the costs of the accommodation, the Secretary of State recommends that housing authorities regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the level of income support or income-based jobseekers allowance that is applicable in respect of the applicant, or would be applicable if he or she was entitled to claim such benefit. […]"
Lord Carnwath, delivering a unanimous judgement in the Supreme Court, held that the central issue was whether the council adopted the correct approach in determining that the accommodation was “affordable” for the purposes of the 1996 Order. He noted that the Order necessitates an objective assessment of sources of income, not simply the subjective view of the case officer.
Lord Carnwath also held that an assessment of the cost of an accommodation in comparison to an applicant’s residual income under the 2006 Code of Guidance, could include an assessment of income support comprising of benefits in respect of children, in particular child tax credit. He noted that although benefits received in respect of children are not mentioned in paragraph 17.40 of the 2006 Code, they could be material in assessing the income and expenditure levels of the applicant and other members of the household. However, the guidance makes clear that the amount of an applicable benefit will vary “according to the circumstances and composition of the applicant’s household”.
The approach adopted by the review officer in Ms Samuel’s case had involved a question of whether there was sufficient “flexibility” in her income to enable her to cope with the shortfall between her rent and her housing benefit. However, Lord Carnwath held that the question ought to have been “what her reasonable living expenses were (other than rent), to be determined having regard to both her needs and those of the children.” He noted that the total monthly expenses shown in the schedule provided by Ms Samuel’s solicitors (£1,234.99) was well within the amount regarded as appropriate in relation to her welfare benefits (£1,349.33) and could not be regarded as unreasonable.
Lord Carnwath concluded that he found it difficult to see on what basis the finding of intentional homelessness could be properly upheld. Thus, the appeal was allowed, the decision of the Council was quashed and the matter was remitted to the Council for reconsideration.
Click here for the decision in Samuels v Birmingham City Council.