Intentionally homeless from accommodation that was reasonable to continue to occupy

An applicant will not be intentionally homeless if they cease to occupy accommodation that is not reasonable to continue to occupy.[1]

The definition used is the same as when assessing whether a person is homeless because of accommodation being not reasonable to continue to occupy.

Relevant factors can include both:

• 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.[2]

Local authorities are specifically required to consider whether the accommodation was affordable for the applicant.[3]

When assessing whether accommodation is reasonable for the applicant to occupy, the local authority must also consider whether it was reasonable for other members of the applicant's household to remain in occupation.[4]

Accommodation will not be reasonable to occupy if it is probable that remaining there will lead to domestic abuse or other violence directed against the applicant, or someone who lives with or might reasonably be expected to live with them.[5]

The authority must consider affordability when assessing whether an applicant is homeless intentionally.[6]

Its assessment of whether accommodation is or was affordable needs to take account of:[7]

• 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

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 etc.[8]

Where benefits form part of an applicant's financial resources, authorities should compare them to the applicant's reasonable living expenses and consider whether the applicant can afford to make up shortfalls between housing benefits and rent without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to their circumstances.

An authority is entitled to take into account guidance on minimum expenditure figures when it calculates an applicant's reasonable expenditure. It does not have to compare its figures with the maximum amount of welfare benefits the applicant is entitled to.[9]

Where an applicant has rent arrears, an authority must consider the matters that caused them to not pay, not merely the fact that the rent was not paid.[10]

Applicants should prepare a detailed statement of income and expenditure to support an argument that a property was unaffordable. The authority must 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 their necessary expenditure.[11]

The authority does not need to set out arithmetical calculations or itemised quantifications of the applicant's various expenses in its decision letter.[12]

The local authority can carry out re-calculations of income and expenditure during its enquiries or during a review. These must be evidence-based and have regard for the points raised by the applicant.[13]

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.[14]

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 them to remain where they are 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 them to be homeless because it is not reasonable to continue to occupy that accommodation.[15]

In determining whether an applicant became homeless intentionally, the local housing authority must:[16]

• firstly assess if they deliberately did or failed to do anything which caused them to lose accommodation that it was reasonable for them to continue to occupy at the time they 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 their 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 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.[17]

If the applicant has experienced domestic abuse, violence or threats of violence from any person, their accommodation is not reasonable to continue to occupy if it is probable that continued occupation is likely to lead to further violence or abuse.

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.[18]

An authority must give particular care to decisions where violence and abuse are alleged.[19]

When assessing the probability of violence or domestic abuse, the local authority may consider the relevant timescales. In one case, where the applicant, who had been previously subjected to domestic violence, did not indicate she had to leave her accommodation because of domestic violence and sought a payment arrangement with the landlord in order to be able to continue to reside at the property, the Court of Appeal held that the reviewing officer had correctly assessed the probability of violence, taking into account the fact that there was no evidence of violence since non-molestation orders had been issued, and had been entitled to uphold the original intentionality decision.[20]

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