The claimant lone parent was a housing association tenant who lived with her seven children. She was in receipt of welfare benefits but failed to pay her rent and was evicted. She applied to the local housing authority for accommodation in respect of its duty under section 193(2) of the Housing Act 1996 ("the 1996 Act") to secure accommodation for her as a person who was unintentionally homeless, eligible for assistance and had a priority need. The local authority, taking account of 2019 guidance issued by the Association of Housing Advice Services ("AHAS"), determined that she had become homeless intentionally, in that whilst accruing rent arrears she had sufficient income to pay her rent and her household's reasonable living expenses. The claimant objected to the use of the AHAS guidance figures as lacking objectivity because the AHAS members came from contracted and statutory housing services. The judge allowed the claimant’s appeal, determining that the claimant had not become intentionally homeless and that the local authority was subject to the duty under section 193(2), on the grounds that the decision on reasonable living expenses was unlawful, the reliance on the AHAS guidance was irrational, that there had been a failure to refer to the benefit cap and that the decision that the rent was affordable was therefore irrational. The local authority appealed on the grounds that it was entitled to have regard to the AHAS guidance and was not required to have regard to the benefit cap when considering expenses.
AHAS was a non-statutory body which conducted and published research to assist advisers and decision-makers in the sphere of housing, and its guidance was stated to be aimed to give caseworkers an objective mechanism to determine how much households could reasonably be able to pay towards their housing by providing an evidence base of a reasonable minimum cost of living. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 ("the 1996 Order") identified matters which a local authority should take into account in determining whether it would have been, reasonable for a person to continue to occupy accommodation, including whether or not the accommodation was affordable for that person and, in particular, (a) the financial resources available to that person, (b) the costs in respect of the accommodation and (d) that person's other reasonable living expenses. The local authority was required by section 182 of the 1996 Act to have regard to the Homelessness Code of Guidance ("the 2018 Code") issued in 2018 by the Secretary of State which provided that consideration had to be given to whether the claimant could afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials.
On the local authority’s appeal—
Held, appeal allowed. (1) A local housing authority should determine whether the rent was one that a claimant could afford. That depended on the claimant's available income and their "reasonable" living expenses. Various different levels of expense could fairly be described as "reasonable", however the 1996 Order and the 2018 Code in combination prescribed a specific approach of assessing the income that a claimant would require to meet essential needs aside from housing costs, or of assessing the "reasonable living costs" of an individual or household as the sum they reasonably need to provide the necessities of life to a minimum standard. The stated purposes and aims of the AHAS guidance were consistent with that approach, and the judge was therefore wrong to treat the AHAS guidance as legally irrelevant on the footing that the statutory provisions called for an assessment of reasonableness by reference to "the average cost of food and other items" and not "reasonable minimum costs". In deciding what an individual applicant reasonably required to meet essential needs, evidence of the "reasonable minimum cost" of meeting such needs was precisely the kind of evidence to which a local authority could properly have regard. The judge was also mistaken when he said that the question was whether the claimant's living expenses were “reasonable". The question was what the claimant reasonably required to meet the essential needs of her family. The judge was also wrong to say that the test for the cost of a mobile phone was not whether it was a need but whether it was a reasonable expense. The local authority were entitled to take account of the AHAS guidance as a reliable and objective source of evidence to which it could have regard when calculating reasonable living expenses as part of the affordability assessment in the claimant’s case (paras 47–49, 50–54).
(2) In respect of the benefit cap, in the circumstances of the claimant’s case it was not irrational or unlawful for the local authority to make it’s decision without explicitly comparing its own figures with the maximum amount of benefit available to the claimant. As the local authority’s assessment was not unlawful the judge’s order would be set aside and substituted with an order dismissing the claimant’s appeal to the County Court (paras 58, 71, 72, 73).
Nicholas Grundy QC and Victoria Osler (instructed by South London Legal Partnership) for the local authority.
Adrian Marshall Williams (instructed by Burke Niazi Solicitors) for the claimant.