Terryann Samuels v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Floyd,Lord Justice Sales |
| Judgment Date | 27 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1051 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2014/2185 |
| Date | 27 October 2015 |
[2015] EWCA Civ 1051
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
His Honour Judge Worster
Case No. BM 30213A
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Floyd
and
Lord Justice Sales
Case No: B5/2014/2185
James Stark (instructed by Community Law Partnership) for the Appellant
Jonathan Manning and Emily Orme (instructed by Birmingham City Council Legal and Democratic Services) for the Respondent
Hearing date: 6 October 2015
The appellant was formerly an assured shorthold tenant of 18 Dagger Lane, West Bromwich, Birmingham. Her contractual rent was £700 a month, towards which she received housing benefit of £548.51 a month, leaving a shortfall of £151.49 payable by her. She fell into rent arrears, as a result of which she was given notice by her landlord to leave the property in July 201She subsequently made two applications to Birmingham City Council ("the council") for assistance under the homelessness provisions of the Housing Act 1996 ("the 1996 Act"). The first application was made in June 2012, the second in July 2013. In each case the council decided that she was intentionally homeless, on the ground that the accommodation at Dagger Lane had been reasonable for her to continue to occupy and had, in particular, been affordable, and that the loss of the accommodation was the result of her deliberate act in failing to pay the rent. The decision in respect of the first application is not directly in issue but the application is relevant for the information which came into the council's possession in the course of it. The decision in respect of the second application was the subject of an appeal to the County Court. The appeal was dismissed by order of His Honour Judge Worster, sitting in the County Court at Birmingham. A further appeal is now brought against the judge's order, with permission granted by Patten LJ.
The appeal to this court focuses on the finding in the review decision that the accommodation at Dagger Lane was affordable. The grounds of appeal are, in summary, that (1) there was a failure to have regard to relevant considerations, (2) the judge was wrong to take into account an email from the decision-maker relating to one aspect of the reasoning in the decision, and (3) the decision was inadequately reasoned.
The legal framework
It is not necessary to go into the homelessness provisions of the 1996 Act in any detail. The full housing duty under section 193 arises in respect of a person where the local housing authority are satisfied that various conditions are met in relation to that person and "are not satisfied that he became homeless intentionally". By section 191(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".
Section 177(3) empowers the Secretary of State by order to specify matters to be taken into account or disregarded in determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 ("the 1996 Order"), made in the exercise of that power, provides in material part as follows:
" 2. 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 … 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;
…
(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."
Section 182(1) requires a local housing authority, in the exercise of its functions relating to homelessness, to have regard to such guidance as may from time to time be given by the Secretary of State. The relevant guidance is contained in the Homelessness Code of Guidance for Local Authorities ("the Code Guidance"). Paragraph 17.39 of the guidance sets out article 2 of the 1996 Order, with additional italicised comments. It states inter alia that account must be taken of:
"(a) the financial resources available to him or her (i.e. all forms of income), including, but not limited to:
i) salary, fees and other remuneration (from such sources as investments, grants, pensions, tax credits etc.);
ii) social security benefits (such as housing benefit, income support, income-based Jobseekers Allowances or Council Tax benefit etc.)…."
Paragraph 17.40 reads:
"In considering an applicant's residual income after meeting the costs of the accommodation, the Secretary of State recommends that housing authorities 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 jobseekers allowance that is applicable in respect of the applicant, or would be applicable if he or she was entitled to claim such benefit. This amount will vary from case to case, according to the circumstances and composition of the applicant's household. A current tariff of applicable amounts in respect of such benefits should be available within the authority's housing benefit section. 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 …."
As to the statutory decision-making sequence, section 184 of the 1996 Act governs the housing authority's initial decision, section 202 confers a right to request a review, and section 204 confers a right of appeal to the County Court against the review decision.
The facts
The appellant was the tenant of 18 Dagger Lane between November 2010 and July 2011. During that period her household consisted of herself and four children. Two of the children were her own: Jada (born on 19 January 2004) and Jade (born on 23 January 2006). The other two were her niece and nephew, called Kyra and Kyron, who were her sister's children.
The landlord gave the appellant notice to leave 18 Dagger Lane because she was in arrears of rent. She left there in July 2011. It is unnecessary to consider where she then moved to, or the circumstances that led her subsequently to apply to the council for assistance under the homelessness provisions of the 1996 Act, because it was found as a fact and is not in dispute that 18 Dagger Lane was her last settled accommodation, from which she was deemed to be homeless.
When the appellant left 18 Dagger Lane, Kyra and Kyron did not accompany her to her next accommodation but went to live with her mother. Thereafter the appellant gave birth to two further children of her own: Jayiah (born on 25 August 2011) and Jaden (born on 26 April 2013). So the number of children in her household went down at first to two, then up to three and eventually back to four.
In June 2012 the appellant made her first homelessness application to the council. She has difficulty reading and writing but the application was made with the assistance of a support worker from a charitable organisation known as ANAWIM. The application form referred directly only to the three children in her household at the time of the application. In addition to the application form, however, various documents and information were provided by her or on her behalf. They included:
i) An amended child tax credits award from HM Revenue & Customs, dated 28 March 2012, identifying four qualifying children (Jada, Jade, Kyra and Kyron) in the period 6 April 2011 to 20 July 2011, which covered the latter part of the appellant's stay at 18 Dagger Lane.
ii) A completed income and expenditure form: (a) Under income, the form listed "Tax credits £756", "Income Support £268", and "Child Benefit £240". The figures for tax credits and income support were in fact the weekly figures multiplied by four, not precise monthly figures. The figure for child benefit was the monthly figure for four children. (b) The first item under expenditure was rent £151.49, which was the balance of monthly rent at 18 Dagger Lane after receipt of housing benefit. The other items were food/household items £150, electricity £40, gas £50, school meals £20, travel costs & maintenance £60, telephone £20, and daughter's gymnastics £40.
In the course of a follow-up telephone enquiry by a council officer, the appellant confirmed that when she resided at 18 Dagger Lane she was in receipt of child tax credits of £189 a week (i.e. £819 a month), income support of £67 a week (i.e. £290.33 a month) and child benefit of £240 a month. She also confirmed that the expenditure figures that had been provided were correct.
In the statement in support of her application the appellant said that she had been unable to meet the shortfall in rent. In a section 184 decision dated 9 August 2012, however, the council concluded that her accommodation had been affordable and that she was intentionally homeless. That decision was upheld on review, by letter dated 25 March 2013. The review decision was not challenged.
The appellant had been provided with temporary accommodation...
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Terryann Samuels v Birmingham City Council
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