R (Best) v Oxford City Council [2009] EWHC 608 (Admin), [2009] All ER (D) 252, noted on this week’s Garden Court Housing Law Bulletin, but not yet on BAILII. 

This is a judicial review that essentially turned on whether a local housing authority has a duty to provide a homeless applicant with rent-free accommodation where that applicant is on income support, but cannot access housing benefit.

A potted history – A, B,  C, 1, 2, 3…

Ms Best, who has two young children, has a fairly eventful history with Oxford City Council.  Prior to that she lived in Property 1, which, along with her three siblings she inherited a share in.  She also bought Property 2, which on the Council’s evidence was purchased a year before Property 1 was sold.  She first made a homelessness application in 2004 following the break up of her relationship with the children’s father Mr C, whom she shared Property 2 with.  There is evidence of domestic violence and threats to kill made by Mr C, who was later made the subject of several non-molestation orders.  The Council accommodated her in Property 3 from March 2004 through to October 2005 when she was evicted over rent arrears, although Property 2 was sold for £168,000 in  December 2004.  She then went to live with her mother (Property 4, but don’t worry, this one doesn’t come up again), although the Council accepted that arrangement was unsuitable due to overcrowding.

A fresh homelessness application in 2007 was met with a finding of intentional homelessness due to Ms Best’s failure to pay rent for Property 3, although the Council continued to accommodate Ms Best and her children (in Property 5).  That decision was upheld on a s. 202 review, but Ms Best’s further appeal to the County Court was withdrawn in September 2007 when Oxford agreed to carry out a fresh review.  The new s. 202 review as completed in December 2007 and again found that Ms Best had made herself intentionally homeless, although this time because of the sale of Property 1.  Ms Best launched another County Court appeal which led to the Council accepting in February 2008 that they owed her the full s. 193 duty (for reasons that are not entirely clear to me).  However, just ten days after this the Council informed Ms Best that unless she paid the rent arrears on Property 5, which were over £10,000, within 14 days they would apply for a warrant of eviction.  Her solicitor replied that the s. 193 duty had not been fulfilled as the accommodation was unaffordable and therefore unsuitable.

On 8th April 2008 Ms Best was evicted from property 5, with total rent arrears of over £11,000.  Oxford issued a decision letter on 17th April (referred to as ‘Decision A’) stating that Ms Best had made herself intentionally homeless through non payment of rent for Property 5 and her failure to provide information requested to assess her Housing Benefit claim.  A requested s. 202 review was completed on 25th July 2008, which confirmed a finding of intentionality (referred to as ‘Decision B’), on the grounds that her ability to pay rent was not wholly dependent on the receipt of HB.

A County Court appeal was launched against Decision B, but that was adjourned pending the outcome of the judicial review case.

Since her eviction Oxford has accommodated Ms Best at yet another property, Property 6.  The Council’s evidence was that no rent had been paid for Property 6 and there were arrears of over £6,000 by 31st December 2008.  Still with me?  Good.

The Judicial Review Claim

Ms Best initially sought judicial review of Oxford in two ways:

• There was an ongoing failure by the Council to provide suitable accommodation, i.e. either rent free or at a peppercorn rent;
• Decision A was either Wednesbury unreasonable or based on an error in law.

Oxford, not unreasonably, complained that Decision A had been superseded by Decision B.  Although Decision B came after Ms Best was granted permission to bring the claim against Decision A, the Council had invited her to amend her claim to reflect the fact that Decision A had now been superseded.  This was not done until the second day of the hearing when counsel for Ms Best amended the claim to include a challenge to Decision B on the same grounds as Decision A and with the added bonus that the later decision did not address the risk of violence from Mr C.  Some might say that this was as a surprising approach to take.

Affordability

Counsel for Ms Best submitted that Oxford had erred in taking into account her conduct prior to 19th February 2008 (the date when they accepted a full housing duty towards her) as evidence that she had made herself intentionally homeless after that date.  The reasoning behind this was that Oxford knew that Ms Best had previously been refused Housing Benefit.  In accepting a full duty towards her the Council were accepting that she had not become homeless intentionally despite her historic failure to obtain HB.  Therefore, Oxford could not use a failure to get HB as a justification for a finding of intentional homelessness where she had not paid rent on accommodation that she could only afford with HB.

The judge, Geraldine Andrews QC, said:

64. It seems to me as a matter of logic and common sense that if the local authority are not satisfied that someone has made themselves intentionally homeless in the light of behaviour of which they are aware at the date of the s.193 decision, they cannot use the same historic behaviour to justify a subsequent finding that the person has become intentionally homeless and brought their duty under s.193 to an end. So, for example, if the Council accepted that they were under a s.193 duty to house Ms Best in February 2008, despite the fact that she had already amassed substantial arrears of rent on the property in which she was being accommodated on a temporary basis pursuant to s.188(3), they could not lawfully treat her failure to pay the rent before 19th February 2008 as a “deliberate act” for the purposes of s.193(6) if they then decided to house her in the same property pursuant to their duty under s.193.

65. However, that would not preclude them from relying on her failure to pay the rent after 19th February 2008, provided, of course, that the accommodation provided to her was “suitable”, which would involve a decision that she could afford to pay the rent on or after 19th February. In making that decision (on affordability) the Council would be entitled and indeed obliged to look at all relevant information about the resources then available to her, as [the Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204] makes clear. That inquiry might involve consideration of assets that she was already known to possess, including savings and insurance policies.

While Geraldine Andrews QC did accept that there would be circumstances where a local housing authority would need to provide a homeless applicant with property for no rent or a greatly reduced rent, she went on to say that the finding of Decision B in the present case was that Housing Benefit was not the only way in which Ms Best could afford to pay the rent for Property 5.  The real issue in the case then became whether the Council were entitled to reach the view that Ms Best was able to afford this rent from 19th February 2008 onwards, despite the fact that she was in receipt of Income Support, but not HB.

In the judge’s conclusion this was a view that the Council was reasonably entitled to reach.  There was considerable doubt about what had happened to the proceeds of sale of both Properties 1 and 2.  Ms Best had been caught out lying on one of her Housing Benefit claim forms when she had incorrectly stated that she was not doing any work.  She had not supplied much of the financial information asked for, but that which she did supply showed a pattern of expenditure that the decision maker responsible for Decision B concluded was not consistent with the behaviour of an impecunious person worried about money.  He came to the further conclusion that Ms Best had been dishonest, was not acting in good faith, that the reason for her failure to provide information was to conceal evidence of assets available to her, and that in all probability her capital assets were over £16,000.

At [104] Geraldine Andrews QC said that the decision maker “came up with an explanation for Ms Best’s behaviour that is not just within the range of those that would be open to a reasonable review officer to find, but which is probably the most likely explanation.”  The conclusion that she was concealing the existence of resources that would be sufficient to pay her rent was neither Wednesbury unreasonable or based on any error of law.

Domestic violence

The second part of the challenge to Decision B was that it did not deal with the risk of violence from Mr C, although the request for a s. 202 review of Decision A had not raised this issue.  It was accepted, eventually, that Ms Best and her children required a property in Oxford to meet the children’s schooling needs.  Geraldine Andrews QC said:

114. It is relevant that Ms Best did not suggest at any point prior to the making of Decision A or Decision B that [Property 5] was unsuitable because of its location, or that any other feature about it made her more vulnerable to the risk of violence from [Mr C] than any other accommodation in Oxford. Her sole complaint about [Property 5] was that she could not afford to pay the rent there.

115. Looking at the evidence in the round, there was no reason to suppose, on the balance of probabilities, that [Property 5] was unsuitable because it exposed the family to any greater risk of violence than any other property in Oxford.

Decision A and the ‘ongoing failure’

Decision A was flawed, but it had been superseded by Decision B, which was not.  There was therefore no need to quash Decision A, even if the judge was able to.  It also followed from the analysis of Decision B that providing Ms Best with rent-free or low rent accommodation was not the only way in which Oxford could discharge its s. 193 duty and so the alleged continuing breach of statutory duty also failed.

Result

Claim dismissed.  Although there was still an outstanding s. 204 challenge to Decision B in the County Court Geraldine Andrews QC observed that a successful technical challenge on the basis of a failure to follow Regulation 8(2) would be likely to turn into, at best, a Pyhrric victory for Ms Best.