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Reasonable to continue to occupy: intentional homelessness

This content applies to England

Information on when accommodation is reasonable to continue to occupy .

If the applicant's accommodation is, or was, not 'reasonable to continue to occupy' then there can be no finding of intentionality.

The test of whether accommodation is or was reasonable to continue to occupy is the same as in the definition of homelessness, and in determining whether accommodation offered in discharge of the local authority's homelessness duties is suitable. The same case law will apply in all three contexts. Guidance on whether accommodation is reasonable to continue to occupy may also be found in more than one chapter of the Homelessness Code of Guidance.

Factors to consider

Reasonableness to continue to occupy can be looked at in two contexts:

  • the physical condition of the property
  • the personal circumstances of the applicant.

The authority might also consider factors such as overcrowding, type of accommodation, harassment and security of tenure. There may be a range of other personal and/or legal issues that the authority needs to address when considering the issue, such as lack of employment opportunities in the area of the accommodation that the applicant has left.[1]

Affordability

The authority must consider affordability.[2] Its assessment of whether accommodation is or was affordable needs to take account of:[3]

  • the financial resources of the applicant such as wages, benefits and any savings
  • all the costs of accommodation
  • maintenance payments (in respect of ex-family members) and
  • other reasonable living expenses.

Where an applicant has rent arrears, an authority must consider the matters that caused her/him to not pay, not merely the fact that the rent was not paid.[4]

Where benefits form part of an applicant's financial resources, these may be considered as a whole along with any other income. Just because a certain benefit is intended for meeting housing costs, this does not mean that an applicant should not use other benefits, such as child benefit, to make up a rent shortfall.[5]

It is important for an applicant to prepare a detailed statement of income and expenditure to support an argument that a property was unaffordable. The authority will need to identify precisely which items of expenditure it believes could be reduced or eliminated and give a sufficiently detailed explanation where it is rejecting the applicant's view on her/his necessary expenditure.[6] However, the authority does not need to set out arithmetical calculations or itemised quantifications of the applicant's various expenses in its decision letter.[7]

The courts have held that it cannot be reasonable to expect someone to continue to occupy accommodation when they cannot meet their financial obligations without depriving themselves of essentials such as food, clothing, heat, transport and so forth.[8]

Deception over eligibility

When assessing a homeless application from an applicant who had lost her previous accommodation because of deception to the local authority over her immigration status, the authority erred in finding her intentionally homeless; the applicant's immigration status was such that she had not been eligible for housing assistance and, once her deception was discovered, it was not reasonable for her to continue to occupy such accommodation.[9]

Occupation reasonable over time

The House of Lords has held that the phrase 'reasonable to continue to occupy' means that occupation is to be looked at over time. As such it is possible an applicant can be statutorily homeless and it could be reasonable for her/him to remain where s/he is for the short, or even medium term, while the local authority takes steps to secure other accommodation.

However an applicant cannot be found intentionally homeless for losing or leaving accommodation that is not 'reasonable to continue to occupy' or where the local authority has already found her/him to be homeless because it is not reasonable to continue to occupy that accommodation.[10]

Time of consideration

In determining whether an applicant became homeless intentionally, the local housing authority must:[11]

  • firstly assess if s/he deliberately did or failed to do anything which caused her/him to lose accommodation that it was reasonable for her/him to continue to occupy at the time s/he left, and
  • secondly, at the time of its decision (or review decision if applicable), assess if that deliberate act or omission is still the cause of her/his homelessness.

A later intervening event constituting an involuntary cause of homelessness can be regarded as superseding and breaking the chain of causation from the applicant's earlier deliberate conduct by the time of the authority's decision. In the case considered by the Supreme Court the applicant had voluntarily left a single persons' hostel when pregnant, however she had given birth to a child at the time of the authority's decision into her homelessness application, which meant that she would undeniably have been evicted from the hostel by that time. As such the applicant was not intentionally homeless.[12]

Violence

If the applicant has experienced violence or threats of violence from any person, her/his accommodation will not be reasonable to continue to occupy if it is probable that continued occupation is likely to lead to further violence (with effect from 31 March 2013, there is a new cross-government definition of 'domestic violence and abuse' - see the Definition of domestic violence page from more on this). The local authority cannot find an applicant intentionally homeless for not applying for an injunction in order to remain at home, if it would have been unreasonable for the applicant to continue living at home.[13]

An authority must give particular care to decisions where violence and abuse are alleged.[13]

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] Bowen v Lambeth LBC [1999] Lambeth County Court, Legal Action, December 1999.

[2] Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204; paras 6.28, 17.44 and 17.45 Homelessness Code of Guidance, MHCLG, Feb 2018; Odunsi v Brent LBC [1999] Willesden CC, Legal Action August 1999; Carthew v Exeter CC [2012] EWCA 1913.

[3] para 6.28, 17.44 and 17.45 Homelessness Code of Guidance, MHCLG, Feb 2018.

[4] R v Wandsworth LBC, ex parte Hawthorne [1995] 1 WLR 31, (1995) 27 HLR 59, CA.

[5] Samuels v Birmingham CC [2015] EWCA Civ 1051.

[6] R (on the application of Farah) v Hillingdon LBC [2014] EWCA 359.

[7] Bernard v Enfield LBC [2001] EWCA Civ 1831, CA.

[8] R v Hillingdon LBC, ex parte Tinn (1988) 20 HLR 305, QBD; para 17.45 Homelessness Code of Guidance, MHCLG, Feb 2018.

[9] Chishimba v Kensington RLBC [2013] EWCA Civ 786.

[10] Birmingham CC v Ali and others: Moran v Manchester CC [2009] UKHL 36.

[11] Haile v Waltham Forest LBC [2015] UKSC 34.

[12] Haile v Waltham Forest LBC [2015] UKSC 34; para 9.14 Homelessness Code of Guidance, MHCLG, Feb 2018.

[13] Bond v Leicester CC [2001] EWCA Civ 1544; paras 21.20, 21.29 and 21.30 Homelessness Code of Guidance, MHCLG, Feb 2018.

[14] para 9.22 Homelessness Code of Guidance, MHCLG, Feb 2018;

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