Taryn Baptie v The Royal Borough of Kingston Upon Thames
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 2022 |
| Neutral Citation | [2022] EWCA Civ 888 |
| Docket Number | Case No: CA-2021-001567 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 888
Lord Justice Peter Jackson
Lady Justice Asplin
and
Lord Justice Warby
Case No: CA-2021-001567
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HHJ Hellman
Case No: G40CL350
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Grundy QC and Victoria Osler (instructed by South London Legal Partnership) for the Appellant
Adrian Marshall Williams (instructed by Burke Niazi Solicitors) for the Respondent
Hearing date: 25 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 30 June 2022
Introduction
When a homeless person applies to a local housing authority (“LHA”) for accommodation one thing the LHA needs to decide is whether the applicant has become homeless intentionally. That may be the case if the applicant was evicted from their “last settled accommodation” for non-payment of rent which was “affordable” for them. Affordability depends on whether the applicant would have been able both to pay the rent and meet their “reasonable living expenses”. In this case the LHA decided that both could have been done. The question raised by this appeal is whether that affordability decision was unlawful because it was based on an irrational approach to the assessment of the applicant's reasonable living expenses.
A nutshell summary
Ms Taryn Baptie is a lone parent who used to live with her seven children in Chessington, Kingston-upon-Thames, as a tenant of London and Quadrant Housing Association. She failed to pay the rent and the family was evicted. Having spent some time living in a caravan belonging to a friend Ms Baptie applied to her LHA, the Royal Borough of Kingston-upon-Thames (“the Council”), for accommodation.
Section 193(2) of the Housing Act 1996 (“the 1996 Act”) imposes a duty on an LHA to secure that accommodation is available for occupation by an applicant where the LHA is satisfied she is homeless, eligible for assistance, and has a priority need, and not satisfied that she became homeless intentionally. If the applicant did become homeless intentionally the LHA's duties are the less onerous ones identified in s 190(1) and (2) of the 1996 Act: to secure that accommodation is available to the applicant for such period as it considers will give her a reasonable opportunity of securing accommodation and to give advice and assistance.
The Council was satisfied, and it has been common ground throughout, that Ms Baptie was homeless, eligible, and had a priority need. But the Council decided that she had become homeless intentionally. That decision was confirmed by a reviewing officer on a statutory review. It was common ground that the Chessington address was the “last settled accommodation”. The reviewing officer's reasoning was, in essence, that the rent due to the Housing Association had been affordable for Ms Baptie, but she had failed to claim tax credits to which she was entitled and spent an unreasonable amount on living expenses. On the second point, the officer relied in part on figures contained in guidance issued by the Association of Housing Advice Services (“AHAS”).
Ms Baptie appealed to the County Court. HHJ Hellmann (“the Judge”) dismissed Ms Baptie's challenge to the relevant findings about her income, but allowed the appeal on the basis that the decision on reasonable living expenses was unlawful. The Judge 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. He varied the decision to one that Ms Baptie did not become homeless intentionally and that the Council was subject to the duty under s 193(2).
The Council now brings this second appeal with the permission of Arnold LJ, maintaining that 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 the Judge was wrong to interfere with her multifactorial decision. The Council asks us to reverse the decision of the Judge and to substitute an order upholding the decision of the reviewing officer. Ms Baptie invites us to uphold the decision of the Judge and puts forward additional reasons for doing so. These include an assertion that the assessment of an applicant's reasonable living expenses must take account of current Universal Credit allowances without regard to the benefit cap.
The legal and policy framework
Intentional homelessness is defined by s 191(1) of the 1996 Act:
“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”.
Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 (“the 1996 Order”) identifies matters which an LHA must take into account “in determining whether it … would have been, reasonable for a person to continue to occupy accommodation”. These include:
“… 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; …
…
(b) the costs in respect of the accommodation, including, but not limited to, (i) payments of, or by way of, rent; …
…
(d) that person's other reasonable living expenses.”
Article 2 requires the LHA to take into account all sources of income, including all forms of benefit, and to compare these with the applicant's rent and her reasonable living expenses; a decision as to what is “reasonable” requires an objective assessment, having regard to the needs of the applicant and her children, and cannot depend on the subjective view of the case officer: Samuels v Birmingham City Council [2019] UKSC 98, [2019] PTSR 1229 (“ Samuels”).
Section 182 of the 1996 Act provides that in the exercise of its functions relating to homelessness an LHA “must have regard” to such guidance as may from time to time be given by the Secretary of State. Such guidance has been set out in a Homelessness Code of Guidance. A version issued in 2006 (“the 2006 Code”) was considered by the Supreme Court in Samuels. It said (at Paragraph 17.40, emphasis added):
“In considering an applicant's residual income after meeting the costs of the accommodation the Secretary of State recommends that authorities should 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 jobseeker's allowance that is applicable in respect of the applicant … A current tariff of applicable amounts in respect of such benefits should be available within the authority's housing benefit section.”
The 2006 Code went on:
“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.”
In Samuels the Supreme Court identified the levels of income support and income-based jobseeker's allowance as objective guidance on the issue of an applicant's reasonable living expenses, having regard to her needs and those of her children. The reviewing officer in that case, making his decision in 2013, had not considered the applicable benefit levels, nor any other guidance. The Supreme Court held that his decision was unlawful. At [36] Lord Carnwath (with whom the other members of the court agreed) said this:
“The amount shown in the schedule [of living expenses] provided by [Ms Samuels'] solicitors (£1,234·99) was well within the amount regarded as appropriate by way of welfare benefits (£1,349·33). In the absence of any other source of objective guidance on this issue, it is difficult to see by what standard that level of expenses could be regarded as other than reasonable.”
The Welfare Reform Act 2012 (“the 2012 Act”) provided that the weekly-paid benefits referred to in the 2006 Code (income support and income-based jobseeker's allowance) should no longer be available to new claimants and introduced “Universal Credit” payable monthly. Universal Credit calculations include a “standard allowance” for all claimants and additional “elements” for those who have children, or need help with rent, and other categories of claimant. Section 96 of the 2012 Act provided for a cap on welfare benefits. This was £26,000 a year for a single person resident in Greater London. Section 8 of the Welfare Reform and Work Act 2016 (“the 2016 Act”) amended the 2012 Act, reducing the relevant benefit cap to £23,000. Section 11 of the 2016 Act froze certain benefits at 2016 levels for each of the four following tax years. These included Universal Credit.
In 2018, the Secretary of State issued a new version of the Homelessness Code of Guidance (“the 2018 Code”). This version does not contain the recommendation or other text quoted at [10] above. It does contain the words quoted at [11] above but it continues differently (at para 17.46) as follows:-
“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...
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