Birmingham City Council v Michael Balog
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Briggs LJ,Sullivan LJ |
| Judgment Date | 12 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1582 |
| Date | 12 December 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2013/0740 |
[2013] EWCA Civ 1582
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
MISS RECORDER McNEILL QC
BM20270A
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Kitchin
and
Lord Justice Briggs
Case No: B5/2013/0740
Christopher Baker and John McCafferty (instructed by Birmingham Legal Services) for the Appellant
Zia Nabi (instructed by The Community Law Partnership) for the Respondent
Introduction
This is an appeal against a decision of Miss Recorder McNeill QC given on 4 March 2013 in the Birmingham County Court. It is brought with the permission of Lewison LJ. The Recorder had before her an appeal by Mr Michael Balog under s.204 of the Housing Act 1996 ("the 1996 Act") against a review decision of the Birmingham City Council ("the council") upholding its original decision that Mr Balog was intentionally homeless within the meaning of s.191 of the 1996 Act.
A person cannot become homeless intentionally unless he has ceased to occupy accommodation which it would have been reasonable for him to continue to occupy. In assessing reasonableness, one of the factors which a council must take into account is affordability. The critical issues in this appeal are first, whether the council took into account adequately or at all the relevant statutory guidance; second, whether the council provided adequate reasons in relation to affordability; and third, whether the council's decision was irrational.
The Recorder allowed the appeal on the basis of the first issue. She found that the council had failed to have regard to the relevant statutory guidance and that this amounted to a procedural failure which vitiated its decision. However, she was not satisfied that the council had failed to provide adequate reasons or that its decision was irrational.
The council now appeals against this decision, and contends that the Recorder's conclusion on the first issue was wrong and elevated form over substance. Mr Balog responds that the Recorder came to the right conclusion on the first issue but that she should have found in his favour on the second and third issues too. He has therefore raised these by way of respondent's notice.
The background
Mr Balog is 37 years old and from early in 2010 lived with his wife and two children in a flat in Godwin Road, Margate ("the property") under an assured shorthold tenancy.
In April 2012 Mr Balog vacated the property and, with his family, moved into his mother's home in Birmingham. Shortly afterwards his mother asked him to leave.
In May 2012 Mr Balog approached the council for housing assistance under Part 7 of the 1996 Act. He made the application on two grounds: first, the tenancy of the property had come to an end and he had been told that he had to vacate it; and second, it was not reasonable for him to continue to occupy the property because it was in a very poor state of repair.
The council thereupon provided Mr Balog with temporary accommodation while it began to make enquiries. It approached Green Knight Lettings, the letting agents for the property, and also the Environmental Health Department of Thanet District Council, the local authority for the area in which the property is situated. These enquiries suggested that Mr Balog had not been asked to leave the property as he claimed and further, that the issue of the state of repair of the property had been raised over a year before and that a good deal of remedial work had been carried out over the following months. Any deficiencies which remained did not render the property uninhabitable and, moreover, were likely to be addressed in the near future.
By letter dated 15 June 2012, the council notified Mr Balog of its decision as it was bound to do under s.184 of the 1996 Act. That letter explained that its enquiries suggested that any outstanding repairs were of a minor nature and that Mr Balog had never been asked to leave. Further, the rental account showed that he was now £715.94 in arrears. The letter continued that the council considered that he had not acted in good faith and that he had become homeless intentionally.
On 27 June 2012 Shelter wrote to the council explaining that Mr Balog had approached it asking for advice and assistance in connection with his homelessness application. It requested a review under s.202 of the 1996 Act on the basis that Mr Balog had been told by his landlord that his tenancy would not be renewed. By further communication dated 6 September 2012, Shelter amplified the grounds upon which the review was sought. It explained that Mr Balog's daughter suffered from asthma and that the state of the property was adversely affecting her health; that the property was badly in need of repair; that Mr Balog's neighbours were guilty of anti-social behaviour; and that Mr Balog had experienced thefts. It also asserted once again that Mr Balog had been told that his tenancy would not be renewed. As for the arrears, the letter explained that Mr Balog thought that his housing benefit was covering the rent, and that he did not appreciate that there was any shortfall, still less a shortfall for which he was responsible. In neither letter did Shelter suggest that the property was not affordable.
In early October 2012 Mr Balog attended a meeting with a council officer at which a breakdown of Mr Balog's income and expenditure was produced for the periods for which he was unemployed. This showed his income comprised child benefit, tax credit and jobseekers' allowance and amounted to £920 per month. His expenditure included sums spent on water rates, gas, electricity, housekeeping, TV licence, telephone and school meals and amounted to £946.18 per month, leaving a monthly deficit of £26.18.
On 9 October 2012 an independent Review Officer employed by the council wrote to Mr Balog informing him that he considered that there had been an irregularity or deficiency in the original decision because it had failed to consider the issue of affordability. He continued that he was nevertheless minded to uphold that decision for reasons which he then set out. He invited Mr Balog to comment upon those reasons if he wished to do so. Mr Balog did not, however, respond to that invitation and by letter of 12 October 2012, Shelter wrote to confirm it was no longer assisting Mr Balog with his application.
On 29 October 2012 the council issued its review decision. The Review Officer set out the various matters to which he had had regard, including the 1996 Act, the statutory guidance, the original application, the various submissions made on Mr Balog's behalf by Shelter and the information provided by Thanet District Council and Green Knight Lettings. He then addressed in detail the specific grounds upon which Mr Balog had relied. He also considered affordability in these terms:
"You have provided an income and expenditure form for the period you were resident at the property. The form suggests that your income was £920 per month, and that your outgoings were £946.18 per month. You have not included housing benefit as income on the form and similarly not included your rent on the form as an outgoing. The figures provided suggest you have a deficit of £26.18 per month. I note that you have been employed during periods of the tenancy, and you have provided wage slips confirming your income. The wage slips you have provided correlate with periods when your housing benefit was reduced and you would have been required to pay a top up amount. I am satisfied that benefit services would have calculated your income and entitlement correct for this period, and that you would have been awarded the correct entitlement for housing benefit when considering your income. I am of the opinion that you could have afforded the rent during periods of employment, as your income increased by approximately £300 per month, and you were required to pay £180 towards your rent. I am satisfied during this period the rent was affordable. When your employment stopped, housing benefit covered your rent and I am therefore satisfied the rent was affordable for this period of your tenancy.
I note that there may have been a period you were required to pay £41.72 towards your rent whilst you were unemployed. I have considered your income and expenditure form for this period and considered if you could have reduced possible outgoings to ensure the top up amount could have been paid. I note that you have attributed £693 per month to housekeeping. Whilst I acknowledge you would have had essential housekeeping outgoings such as food shopping, I am satisfied £693 is a large amount for your family size and could have been reasonably reduced by more cost affecting [sic] shopping. I am satisfied that you could have reduced your outgoings by the stated £26.18 deficit and by a further £41.72 to ensure your rent was paid. I do not consider you would have had to sacrifice essential amenities to do so, and I am satisfied that you could have reasonably performed this task in your household. Accordingly, having considered your monthly outgoings, I am satisfied that the rent was affordable and it was reasonable for you to remain for this reason."
In summary, the Review Officer considered that Mr Balog could afford to pay the rental shortfall despite being unemployed and that the property was therefore affordable.
Legal framework
The extent of the duty owed by a housing authority to homeless persons who are in priority need depends upon whether they became...
To continue reading
Request your trial
-
Terryann Samuels v Birmingham City Council
...to refer expressly to individual passages in the guidance concerning the matters considered. As Kitchin LJ put the point in Balog v Birmingham City Council [2013] EWCA Civ 158, [2014] HLR 14, at paragraph 48: "In my judgment review officers are not obliged to identify each and every paragr......
-
R Sara Hillsden v Epping Forest District Council
...In cases where an issue of this kind arises, I consider that the decision of the Court of Appeal in Balog v Birmingham City Council [2014] HLR 14 may be viewed as an illustration of the Court's resistance to microscopic and forensic analyses of the decisions of public authorities, particula......
-
Terryann Samuels v Birmingham City Council
...officer to have regard to paragraph 17.40 of the Code of Guidance. The Judge rejected this submission (para 54). He referred to Balog v Birmingham City Council [2013] EWCA Civ 1582; [2014] HLR 14, in which a similar submission had been rejected by the Court of Appeal. He accepted counsel'......
-
Ms Khadra Farah v The Mayor & Burgesses of the London Borough of Hillingdon
...or provide an over-detailed set of reasons for reaching their financial conclusions. Cases like Birmingham City Council v Balog [2013] EWCA Civ 1582 show that this is not necessary. But, as in all cases, the level of detail necessary will usually depend upon the issue to be decided and the ......