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Judges allow appeal by council over affordability and non-payment of rent

It was not unlawful for a Royal Borough of Kingston Upon Thames reviewing officer to conclude that an applicant was intentionally homeless because her previous rent had been affordable but had not been paid.

That ruling has come in Baptie v The Royal Borough of Kingston Upon Thames [2022] EWCA Civ 888, a Court of Appeal case in which Lord Justice Warby rejected claims that the council had acted wrongly.

He noted that a homeless person can be intentionally homeless if they were evicted for non-payment of a rent which was affordable, with affordability dependent on whether they could have met both their rent and reasonable living expenses.

Kingston assessed the latter by reference to figures in guidance issued by the Association of Housing Advice Services (AHAS).

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The respondent is a lone parent who used to live with her seven children in Chessington as a tenant of London & Quadrant Housing Association.

After eviction for rent arrears she lived in caravan before applying to Kingston for accommodation.

The judge said that under s 190(1) and (2) of the Housing Act 1996 if an applicant is deemed intentionally homeless the council need only provide accommodation for as long as it considers gives a reasonable opportunity of securing accommodation and give advice and assistance, rather than accommodate the applicant.

“The reviewing officer's reasoning was, in essence, that the rent due to the housing association had been affordable for [the respondent], but she had failed to claim tax credits to which she was entitled and spent an unreasonable amount on living expenses,” Warby LJ said.

The respondent appealed to the County Court, where HHJ Hellmann allowed her appeal on the basis that the decision on reasonable living expenses was unlawful.

HHJ Hellmann held that the reviewing officer's reliance on the AHAS guidance was irrational, that she had failed to refer to the benefit cap, which would have "provided a valuable sanity check", and that the decision that the rent was affordable was therefore irrational.

His decision meant that the respondent was deemed homeless unintentionally and that Kingston was subject to the duty under s193(2) of the 1996 Act.

The council then appealed maintaining the reviewer was entitled to have regard to the AHAS guidance, was not required to have regard to the benefit cap when considering expenses, and that HHJ Hellmann had been wrong to interfere with Kingston’s decision.

Warby LJ said there were four main issues to decide: did the reviewer err in law by treating the AHAS guidance as relevant objective guidance as to reasonable living expenses; did the reviewer err in law by failing to treat the benefit cap as a 'sanity check' and/or by failing to treat the standard allowances for Universal Credit as relevant objective guidance as to reasonable living expenses, without regard to the benefit cap; if the reviewer did not make any of the above errors, has the respondent identified any other good and sufficient basis on which to interfere with the reviewer's multifactorial assessment; if the reviewer did err in law, was the judge right to reverse her decision, rather than remit the matter for a fresh decision?

The 2018 Homelessness Code of Guidance identifies the reviewer’s task as "assessing the income that an applicant will require to meet essential needs aside from housing costs” and Warby LJ said the stated purposes and aims of the AHAS guidance “are consistent with this way of putting the matter”.

HHJ Hellmann had been wrong to treat the AHAS guidance as legally irrelevant on the footing that the statutory provisions call for an assessment of reasonableness by reference to "the average cost of food and other items" and not "reasonable minimum costs".

Warby LJ said: “In deciding what an individual applicant reasonably requires to meet essential needs, evidence of the ‘reasonable minimum cost’ of meeting such needs is precisely the kind of evidence to which a reviewing officer can properly have regard.”

He said HHJ Hellmann was also mistaken to say the question was "whether the appellant's living expenses were reasonable".

The question should have been what the respondent reasonably required to meet the essential needs of the family.

Warby LJ said it was not legally wrong for the reviewer to take account of the AHAS guidance, which “purports to be objective and on its face relies on evidence of prices at which relevant goods are offered for sale by mainstream supermarkets”.

The reviewing officer had been well aware of the maximum level of benefits available to the respondent and the capped benefits figure including rent (£1,916.67 a month) was higher than the officer's assessment of her reasonable monthly living expenses plus rent (£1,903.79) so any error would have been immaterial, Warby LJ said.

Lady Justice Asplin and Lord Justice Peter Jackson agreed with Warby LJ’s judgment.

Mark Smulian

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