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Court of Appeal considers affordability of accommodation in appeal concerning intentional homelessness

Thursday 1 July 2021

Edward Fitzpatrick and Matthew Ahluwalia, both of the Garden Court Chambers Housing Team, acted for the Appellant, instructed by Kevin Long of Hackney Community Law Centre.

Blog post by Matthew Ahluwalia.

Patel v Hackney [2021] EWCA Civ 897

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Leading judgment was given by Sir Nicholas Patten. Handed down on 21st June 2021. Rightsnet summary here.

Facts

Mr Patel and his family were evicted from their private rented accommodation, following a possession order made due to rent arrears. Shortly before the warrant for eviction was executed, Mr Patel made a homeless application.

After initially accommodating the family in section 188 accommodation, Mr Patel was found to be intentionally homeless. The family was therefore owed the more limited duty under section 190 Housing Act 1996. It was found that the failure to pay the rent was the cause of the accommodation no longer being available. However, in the section 184 decision letter, the decision-maker asserted that Mr Patel had underestimated the family’s expenditure, and added an additional figure of £32 per week to reflect payments for ‘white goods’. It was nevertheless decided that the accommodation had been affordable.

Mr Patel, unrepresented at this point, sought a review of that decision. Hackney issued a ‘minded to’ letter indicating that the original decision was likely to be upheld. Mr Patel submitted further representations in response, arguing that while it had been the original decision-maker who had added the figure for white goods, he nevertheless adopted the amount put forward. Mr Patel submitted that the white goods were an essential expense as the family had needed to replace their washing machine and fridge, purchasing second-hand units at their own expense.

At review stage, the section 184 decision was upheld. The review officer disregarded the expenditure submitted for white goods, stating that ‘I do not believe this to be an essential expense’ and that ‘I believe that there is sufficient flexibility in your weekly expenditure to cater for such eventualities.’ On the reviewing officer’s calculations, the family’s income exceeded their expenditure by just over £3, and it was thus decided that the accommodation was affordable.

In Mr Patel’s appeal, particular reliance was placed on the finding of Lord Carnwath in Samuels: that an assessment of what living expenses were reasonable requires to be carried out objectively, and cannot depend simply on the subjective view of the case officer. Accordingly, summarily dismissing ‘white goods’ as ‘non-essential’, so the argument went, was contrary to the Supreme Court’s guidance.

It was also argued that there appeared to be a tension or lack of consistency between paras. 17.45 and 17.46 in the Homelessness Code of Guidance, where reference is made in para. 17.45 to ‘reasonable’ living expenses (as per Article 2 of the Homelessness (Suitability of Accommodation) Order 1996) and to ‘essential’ expenses in para. 17.46. 

The county court dismissed the appeal at first instance and Mr Patel appealed to the Court of Appeal.

Outcome and comment

The Court of Appeal dismissed the appeal. It was held that, on the facts and evidence, a finding that there was ‘sufficient flexibility’ in the family budget was one that was open to the reviewing officer. The court also considered that, rather than any apparent tension or inconsistency, para. 17.46 of the Code added ‘no more than an elaboration’ of what level of expenditure it should be reasonable to take into account.

On affordability generally (at para. 13) the Court held:

“It seems to me that paragraph 17.46 is no more than an elaboration of what level of expenditure it should be reasonable to take into account in deciding whether the accommodation was affordable. The statutory criterion of reasonable living expenses directs an enquiry into the needs of the particular applicant and his family and imposes an objective standard for determining whether any expenditure relied on to prove that the accommodation was unaffordable should be taken into account. Loss of accommodation through the non-payment of rent requires an explanation that must satisfy a test of reasonableness. This cannot be satisfied simply by reference to how the applicant has chosen to spend the money available to him at the relevant time. The statutory test requires the local housing authority to determine what in the particular case was a reasonable level of expenditure and the guidance in the Code suggests that this should be measured by what the applicant requires in order to provide as a minimum standard the basic essentials of life.”

This case is another illustration of the lack of consistency in assessing affordability by local authorities when considering homelessness applications – precisely what was deprecated by the Supreme Court in Samuels (see e.g. para. 41 of Samuels).

Another take could be that the outcome of this case very much turned on its facts – as indeed will others looking at affordability. The relatively high level of rent arrears, combined with the somewhat unspecific figures given for white goods, is unlikely to have helped the appellant in this case.

Importantly the Court of Appeal did suggest (at para. 33) that expenditure for white goods could be considered a necessary and reasonable living expense, albeit more likely an occasional one as opposed to a regular outgoing.

For homeless applicants, practitioners and advisers, it will always assist to evidence such expenditure as much as possible.

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