Patel v London Borough of Hackney (2021) EWCA Civ 897

A second appeal to the Court of Appeal, following a s.202 review decision and s.204 appeal on the issue of whether Mr Patel’s private sector accommodation from which he was evicted for rent arrears was affordable and hence whether Mr Patel was intentionally homeless.

The Court of Appeal set out the approach the Courts should take to disputed affordability cases, first by noting the basis for the Supreme Court decision in Samuels v Birmingham City Council (2019) UKSC 28 (our note)

on the information available to the council the shortfall in rent could only be met by a reduction in the standard of living set by the level of welfare benefits received by the applicant. Unless this could be shown to be more than was necessary to provide what paragraph 17.40 (of the Guidance) referred to as the basic essentials then the council was bound to conclude that the rent was unaffordable.

Lord Carnwath on Samuels dd not suggest that there was any difference between ‘basic essentials’ and the subsistence level of welfare benefits.

And then, on the approach to review officer’s decisions:

Re-calculations of income and expenditure of this kind are routine in many homelessness applications. They must be evidence-based and have regard to the points raised by the applicant but in many cases there will be inadequate or incomplete documentation to support particular items, or the amounts claimed will be inconsistent with some of the documentation which is disclosed. The present case is no exception. Mr Patel’s own assessment of his income was found to be too low when compared with the bank statements; some of his estimates of expenditure were rejected as excessive; but others were in fact increased by the housing officer who considered them to be too low and unrealistic. Provided that the officer making the assessment has paid due regard to the relevant guidance and has reached a conclusion open to him or her on the material available then there are no grounds for interfering with the decision which is reached. It is not for the County Court on a statutory appeal on a point of law under s. 204 HA 1996 to review the multifactorial assessment which the housing or the review officer has carried out. Unless it can be shown that the officer materially misdirected himself or failed to take relevant matters into account there is no error of law.

In the present case, what was in dispute was a sum of £32 per week for replacement white goods, which had been added in be the officer on the s.184 decision, then taken out on a recalculation by the s.202 review officer. The review officer had, on bank statements, increased the figure for Mr P’s income, but had also increased items of expenditure which the officer thought were unrealistically low.

Mr P argued that the review officer had found that the white goods replacement figure could not be regarded as essential expenditure. But the Court of Appeal, in the the s.204 appeal, found that this was not what the review officer had found:

But like HH Judge Saunders who dismissed the s. 204 appeal I think that this is too narrow a reading of what the review officer was saying. His reference to there being sufficient flexibility in Mr Patel’s weekly expenditure to cater for a possible need to replace white goods is a recognition that such expenditure might be both necessary and reasonable but that it would be occasional. The original decision maker had allowed £32 per week for the replacement white goods but it is difficult to see how this was calculated. Mr Patel made no claim at all for the replacement of white goods and has never suggested that he needs to spend £32 per week on that. Any weekly allowance in respect of white goods must represent an amount which the applicant might be expected to put aside against future expenditure. The March 2017 guidance on the cost of living published by the Association of Housing Advice Services (AHAS 2013/2017) calculates that for families on universal credit a total white goods allowance of £8 per week would be appropriate on the basis that the sum can be put aside against future replacement costs. Given that even on the review officer’s calculation of expenditure there was an overstated weekly liability for rent and that the allowance for shopping had been considerably increased over what Mr Patel had originally claimed, it seems to me that the review officer’s assessment that there was sufficient flexibility in the family budget to cater for occasional expenditure on the replacement of white goods was a conclusion which was properly open to him on the information which he had. I am not therefore persuaded that his decision discloses any error of law.

Appeal dismissed.