Local authorities can use set minimum expenditure figures to decide if a homeless applicant is intentionally homeless.
Homelessness case law summary
Summary
The local authority, Royal Borough of Kingston upon Thames, found Ms Baptie was intentionally homeless as she had been evicted from accommodation which was reasonable for her to occupy.
The authority used figures produced by the Association of Housing Advice Services (AHAS) to decide if her accommodation was reasonable.
The Court of Appeal held an authority can use fixed minimum expenditure figures, including the AHAS figures, to decide if an applicant is intentionally homeless.
The court held that when assessing reasonable living expenses, authorities do not always need to use universal credit standard allowances or the benefit cap as a guide.
This decision considered the 2018 Homelessness Code of Guidance and is a departure from previous case law on the 2006 Code.
Background
Ms Baptie, a single parent with seven children, was evicted due to rent arrears of nearly £19,000. The family made a homeless application to Kingston upon Thames in 2019.
The council found that Ms Baptie became homeless intentionally from her accommodation because she had failed to pay her rent or to reapply for discretionary housing payments.
Internal review
Ms Baptie requested a review of the decision. The review upheld the original decision, ruling that Ms Baptie had enough income to pay both her rent and living expenses.
The reviewing officer found Ms Baptie had failed to claim tax credits and spent an unreasonable amount on living expenses. The decision referred to 2019 guidance on spending figures by the Association of Housing Advice Services (AHAS).
County Court appeal
Ms Baptie appealed to the County Court, which ruled in her favour.
The judge noted the AHAS figures used by the reviewing officer were intended to be evidence of “reasonable minimal costs” rather than objectively reasonable costs.
The judge also referred to Samuels v Birmingham City Council, where the court emphasised the need to consider benefit levels when assessing reasonable expenses and affordability. The judge noted the Kingston upon Thames review decision did not mention that Ms Baptie was subject to the benefit cap, which would have "provided a valuable sanity check" on the figure the reviewing officer proposed.
Kingston upon Thames appealed to the Court of Appeal.
The court's decision
The Court of Appeal considered whether the decision was unlawful ‘because it was based on an irrational approach to the assessment of the applicant's reasonable living expenses.’
The court allowed the local authority's appeal, set aside the County Court order, and substituted an order dismissing Ms Baptie’s appeal.
Departure from previous case law
In Samuels, the Supreme Court held that income support and income based JSA were a starting point to assess a person’s reasonable living expenses. Miss Samuel’s expenses other than rent were below this amount and were assessed to be reasonable.
This decision was based on the 2006 Homelessness Code of Guidance, which said, “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”.
In 2018, the Code of Guidance was updated. The 2018 code says “Housing authorities may be guided by universal credit standard allowances when assessing the income that an applicant will require to meet essential needs aside from housing costs…”
The Court of Appeal found that the wording of the updated Code meant the use of universal credit standard allowances to assess reasonable living expenses was not ‘legally mandatory in all cases’.
Applying the benefit cap
The Court of Appeal did not agree that the officer was required to use the benefit cap to check whether Ms Baptie’s living expenses were reasonable. The judge noted that the capped benefit figure was actually higher than the reviewing officer’s assessment of reasonable living expenses, and so any error was immaterial.
The court found that on the facts of the case:
"it was not irrational or unlawful for the officer to reach a conclusion without explicitly comparing her own figures with the maximum amount of benefit available to the Baptie family."
Using AHAS figures
The Court of Appeal found that the County Court was wrong to conclude that the AHAS guidance was irrelevant.
The court held that a local authority must ‘determine whether the rent is one that the applicant could afford...this depends on the applicant's available income and her "reasonable" living expenses.’ The judge considered that using the AHAS guidance was consistent with this, citing the approach of the court in Patel v London Borough of Hackney.
Comment
In this case, the Court of Appeal downgraded the importance of Samuels in light of the revised 2018 Code of Guidance.
Local authorities can use minimum expenditure figures, such as those produced by AHAS to assess whether a person’s costs are reasonable. Authorities are not obligated to explicitly reference the benefit cap or universal credit standard allowances to assess reasonable living expenses.
AHAS no longer produces figures for determining reasonable expenses, but under this decision equivalent fixed sums could be take into account.