Suleman Patel v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Sir Nicholas Patten,Arnold LJ,Lewison LJ |
| Judgment Date | 21 June 2021 |
| Neutral Citation | [2021] EWCA Civ 897 |
| Date | 21 June 2021 |
| Docket Number | Case No: B5/2020/1651 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 897
Lord Justice Lewison
Lord Justice Arnold
and
Sir Nicholas Patten
Case No: B5/2020/1651
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Saunders
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward J. Fitzpatrick and Matthew Ahluwalia (instructed by Hackney Community Law Centre) for the Appellant
Emma Godfrey (instructed by London Borough of Hackney) for the Respondent
Hearing dates: 26 May 2021
Approved Judgment
The appellant, Mr Suleman Patel, challenges a review decision by the London borough of Hackney (“the Council”) dated 2 August 2019 that he had become homeless intentionally and was not therefore owed more than the limited housing duty prescribed by s.190 (2) of the Housing Act 1996 (“HA 1996”).
In October 2008 Mr Patel was granted a tenancy of privately owned accommodation comprising Flat 9, 28 Upper Clapton Road, London E5 (“the flat”). He lived there with his wife and children until June 2018 when he was evicted under an outright order for possession based on rent arrears totalling £7,920, which had risen to £11,400 by the date of eviction. Shortly before the warrant for possession was executed on 25 June he made a homelessness application to the Council and was placed in interim accommodation pending a s.184 determination of his application.
Mr Patel completed a Homelessness Affordability and Accommodation Suitability Questionnaire together with an expenditure form in which he stated that he was in receipt of welfare benefits totalling some £302 per week (including housing benefit of £63) and that he earned £100 per week working as a self-employed taxi driver and a further £80 per week from work for his local mosque. He estimated his expenses to be £1405 per month including rent and car insurance plus a further £129 per week which was made up of sundry expenses including household shopping, fuel and telephone charges.
Section 184(1) HA 1996 provides:
“ If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.”
The Council issued its s.184 decision on 2nd May 2019 finding that although Mr Patel was eligible for assistance, homeless and in priority need, he had become homeless intentionally because of his failure to pay the rent due. The consequence of this was that the full housing duty imposed on the Council by s.193 HA 1996 to secure that accommodation is available for occupation by the applicant does not apply (see s.193 (1)(a)(ii)) and the Council's duty is confined to securing that accommodation is available for his occupation for such period as the Council considers will give him a reasonable opportunity of securing accommodation for his occupation and to the giving of advice and assistance: see s.190 (1), (2) HA 1996.
The definition of intentional homelessness is contained in s.191 HA 1996. This provides:
“(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.”
It is not in dispute that a failure to pay rent leading to eviction may amount to intentional homelessness within the meaning of s.191(1). But the Secretary of State both by regulation and in the 2018 Homelessness Code of Guidance for Local Authorities (“the 2018 Code”) has provided further guidance on what will constitute intentional homelessness in the case of someone whose failure to pay the rent is the result of financial difficulties at the relevant time.
Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 (SI 1996/3204) (“the Order”) provides:
“ Matters to be taken into account
In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation and in determining whether accommodation is suitable for a person there shall be taken into account whether or not the accommodation is affordable for that person and, in particular, the following matters:
(a) the financial resources available to that person including, but not limited to:
(i) salary, fees and other remuneration;
(ii) social security benefits;
(iii) payments due under a court order for the making of periodical payments to a spouse or a former spouse, or to, or for the benefit of, a child;
(iv) payments of child support maintenance due under the Child Support Act 1991;
(v) pensions;
(vi) contributions to the costs in respect of the accommodation which are or were made or which might reasonably be expected to be, or have been, made by other members of his or her household;
(vii) financial assistance towards the cost in respect of the accommodation, including loans, provided by a local authority, voluntary organisation or other body;
(viii) benefits derived from a policy of insurance;
(ix) savings and other capital sums;
(b) the costs in respect of accommodation, including but not limited to:
(i) payments of or by way of, rent …
(c) payments that the person is required to make under a court order …
(d) that person's other reasonable living expenses.”
[Emphasis Added]
An assessment of whether accommodation was affordable for the applicant and whether it would have been reasonable for him to continue to occupy it for the purposes of s. 191 (1) HA 1996 therefore requires an investigation into the cost of the accommodation measured against the net income and other financial resources of an applicant after deducting any charges or payment of the kind specified under article 2 of the Order. That assessment is historical in nature in the sense that it is concerned to establish the circumstances in which the applicant came to give up possession of the accommodation and whether his failure to pay the rent was due to his personal financial circumstances having regard to what he was also required to spend in order to maintain and support himself and his family. In the present case it is common ground that the Council's assessment of affordability was directed to the period leading up to the family's eviction in June 2018. Much of the argument on this appeal has focused on what is meant by “other reasonable living expenses” in article 2 of the Order. There is no further guidance in the legislation as to how this should be interpreted and applied but the 2018 Code does have something to say about it.
Paragraph 9.18 (in the section dealing with intentional homelessness) sets out the broad principle that:
“ An applicant's actions would not amount to intentional homelessness where they have lost their home, or were obliged to sell it, because of rent or mortgage arrears resulting from significant financial difficulties, and the applicant was genuinely unable to keep up the rent or mortgage payments even after claiming benefits, and no further financial help was available”.
Again this does not suggest what type or level of general expenditure should be taken into account in making a calculation of affordability but this issue is addressed in paragraphs 17.45 and 17.46. Paragraph 17.45 does no more than set out the terms of article 2 of the Order but paragraph 17.46 states:
“ Housing authorities will need to consider whether the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to their circumstances. Housing costs should not be regarded as affordable if the applicant would be left with a residual income that is insufficient to meet these essential needs. Housing authorities may be guided by Universal Credit standard allowances when assessing the income that an applicant will require to meet essential needs aside from housing costs, but should ensure that the wishes, needs and circumstances of the applicant and their household are taken into account. The wider context of the applicant's particular circumstances should be considered when considering their household expenditure especially when these are higher than might be expected. For example, an applicant with a disabled child may have higher travel costs to ensure that the child is able to access additional support or education that they require and so this should be taken into account when assessing their essential needs, and the income that they have available for accommodation costs”. (emphasis added)
The guidance contained in the 2018 Code is not of course statutory and does not displace the provisions of HA 1996 or of article 2 of the Order. But local housing authorities are required by s. 182 HA 1996 to have regard to such guidance when exercising their statutory functions in relation to homelessness and paragraph 17.46 of the guidance was obviously intended to provide some directions as to how the issue of affordability should be addressed in terms of what the applicant should be able to provide for himself and his family out of his available income and other financial resources whilst still continuing to...
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