Terryann Samuels v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lady Hale,Lady Black,Lord Lloyd-Jones,Lord Kitchin |
| Judgment Date | 12 June 2019 |
| Neutral Citation | [2019] UKSC 28 |
| Court | Supreme Court |
| Date | 12 June 2019 |
[2019] UKSC 28
Lady Hale, President
Lord Carnwath
Lady Black
Lord Lloyd-Jones
Lord Kitchin
Appellant
James Stark
Tom Royston
(Instructed by Community Law Partnership)
Respondent
Jonathan Manning
Brooke Lyne
(Instructed by Birmingham City Council Legal and Democratic Services)
Interveners (Shelter and The Child Poverty Action Group)
Martin Westgate QC
Shu Shin Luh
Connor Johnston
(Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 31 January 2019
( with whom Lady Hale, Lady Black, Lord Lloyd-Jones and Lord Kitchin agree)
The appellant, Ms Samuels, was an assured shorthold tenant of 18 Dagger Lane, West Bromwich, Birmingham, where she lived with four children. In July 2011, having fallen into rent arrears, she was given notice to leave. She later applied to the respondent council as homeless under Part VII of the Housing Act 1996. But it was decided that she was intentionally homeless, on the ground that the accommodation at Dagger Lane was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent. That decision was ultimately confirmed on review by the council in a letter dated 11 December 2013.
The central issue in this appeal is whether the council adopted the correct approach in determining that the accommodation was “affordable” for those purposes. Ms Samuels's appeal to the County Court against the council's decision was dismissed by H H Judge Worster on 10 June 2014, and her further appeal was dismissed by the Court of Appeal (Richards, Floyd, and Sales LJJ) [2016] PTSR 558 on 27 October 2015. She appeals to this court with permission granted by the court on 19 February 2018. (The notice of appeal recorded that the very substantial delay in bringing the case to this court was caused by funding problems, related to the refusal of legal aid, and the need to proceed by way of conditional fee agreement. Legal Aid was reinstated after permission to appeal had been granted by this court. We were told that in the meantime she and her family have been living in temporary accommodation provided by the council.)
The relevant statutory provisions are in Part VII of the 1996 Act. The authority becomes under a full duty to secure accommodation to a person found homeless, if they find certain conditions satisfied, one of which is that they are not satisfied that she “became homeless intentionally” (section 193(1)). That in turn depends on whether she deliberately did or failed to do anything in consequence of which she ceased to occupy accommodation which was available for her occupation and “which it would have been reasonable for [her] to continue to occupy” (section 191(1)). The initial decision is made under section 184 of the 1996 Act; section 202 confers a right to request a review by the authority itself; section 204 confers a right of appeal to the County Court on a point of law.
Section 177(3) enables the Secretary of State by order to specify matters to be taken into account or disregarded in determining the question under section 191(1). The Homelessness (Suitability of Accommodation) Order 1996 (SI 1996/3204) (“the 1996 Order”), made in the exercise of that power, provided:
“ 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 the authority to have regard to guidance given by the Secretary of State. The relevant guidance at the time was the Homelessness Code of Guidance for Local Authorities (“the Code”). It was issued in 2006, replacing earlier versions dated 1999 and 2002. Paragraph 17.39 of the Code set out article 2 of the 1996 Order, with additional italicised comments. It stated inter alia that account must be taken of:
“(a) the financial resources available to him or her ( ie 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) …”
On the expenses side, the reference to rent was expanded: “payments of, or by way of, rent ( including rent default/property damage deposits)”. There were no italicised additions to the reference to “that person's other reasonable living expenses”.
Paragraph 17.40 read:
“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 …” (Emphasis added)
As will be seen, an important issue in the appeal is whether the reference to use of income support as a guide is to be treated as extending also to benefits in respect of children, in particular child tax credit. It is helpful in this context to refer to Humphreys v Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545, where Lady Hale explained the change. Having noted that income support was “a means-tested benefit … at the officially prescribed subsistence level”, she described the introduction of child tax credit (CTC):
“Child tax credit and working tax credit were introduced by the Tax Credits Act 2002. Child tax credit replaced the separate systems for taking account of children's needs in the tax and benefits systems. Previously, people in work (or otherwise liable to pay income tax) might claim the children's tax credit to set off against their income. This was administered by the tax authorities. People out of work (or otherwise claiming means-tested benefits) might claim additions to their income support or income-based jobseeker's allowance to meet their children's needs. This was administered by the benefits authorities. Under the new system, a single tax credit is payable in respect of each child, irrespective of whether the claimant is in or out of work, and is administered by Her Majesty's Revenue and Customs. Child tax credit is like income support and jobseeker's allowance, in that it is a benefit rather than a disregard and it is means-tested, so that the higher one's income the less the benefit, until eventually it tapers out altogether.” (paras 3–4)
For the purpose of comparing her income and expenditure at the relevant time, the evidence provided to the authority, and recorded by the county court judge (paras 15ff), presented a somewhat confusing picture, not assisted by the varying estimates presented by or on behalf of Ms Samuels. On the income side, at the time that she left 18 Dagger Lane Ms Samuels was dependent entirely on social security benefits, amounting in total to a monthly income of £1,897.84, made up of:
i) housing benefit (£548.51)
ii) income support (£290.33);
iii) child tax credit (£819.00);
iv) child benefit (£240.00).
Excluding housing benefit, therefore, the total available for other living expenses was £1,349.33.
On the expenses side, her rent was £700 per month, leaving a shortfall compared to her housing benefit taken alone of £151.49. Her estimates of her non-housing expenses had varied in the course of her exchanges with the council. Her initial estimate had been only £380 per month (including £150 “food/household items”). By the time of the review decision, a revised schedule had been submitted by her solicitors on 1 November 2013, giving a total estimate of £1,234.99, consisting of:
i) £750 food/household items;
ii) £80 electricity;
iii) £100 gas;
iv) £50 clothes;
v) £43.33 TV licence;
vi) £43.33 school meals;
vii) £108.33 travel;
viii) £20 telephone;
ix) £40 daughter's gymnastics.
No supporting information was provided. The accompanying letter said:
“It is impossible for our client, who as you are aware has learning difficulties to remember precise details, we are confident that these figures are reasonably accurate.”
It will be seen that, on an overall view (including housing benefit and rent), her monthly income amounted to £1,897.84 entirely from benefits, and her expenses amounted to £1,934.99, giving a shortfall of about £37 per month.
According to the authority's inquiries of her landlords, she also had arrears of rent of £1,600, although she claimed it was only one month's rent (£700). This difference was left unresolved by the judge (para 23).
Although these figures were accepted as common ground in the lower courts, Ms Garnham for the...
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