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12/07/2022

Affordability and intentional homelessness – assessments and guidance

Baptie v The Royal Borough of Kingston Upon Thames (2022) EWCA Civ 888

This was a second appeal, brought by RBKT from a s.204 appeal that had overturned their decision that Ms Baptie was intentionally homeless from a housing association property due to rent arrears. The Council review officer had found “that the rent due to the Housing Association had been affordable for Ms Baptie, but she had failed to claim tax credits to which she was entitled and spent an unreasonable amount on living expenses. On the second point, the officer relied in part on figures contained in guidance issued by the Association of Housing Advice Services (“AHAS”).” (The first decision maker had found intentionality because Ms B was alleged not to have applied for Discretionary Housing Payments. The review officer found on these other grounds.)

On first appeal, the Circuit Judge had found the decision was unlawful because it was irrational to rely on the AHAS figures, and that the effect of the benefit cap had been ignored – that would have been a ‘valuable sanity check’.

Before the Court of Appeal the Council argued

that the reviewer was entitled to have regard to the AHAS guidance, was not required to have regard to the benefit cap when considering expenses, and the Judge was wrong to interfere with her multifactorial decision. The Council asks us to reverse the decision of the Judge and to substitute an order upholding the decision of the reviewing officer. Ms Baptie invites us to uphold the decision of the Judge and puts forward additional reasons for doing so. These include an assertion that the assessment of an applicant’s reasonable living expenses must take account of current Universal Credit allowances without regard to the benefit cap.

There were two main issues:

i) Was the AHAS 2019 guidance ‘relatively objective guidance to reasonable living expenses’?

ii) Did the reviewer err in law by not treating the benefit cap as a ‘sanity check’, as per the first appeal judgment.

On the AHAS guidance, the Court of Appeal rejected an argument that the Supreme Court in Samuels v Birmingham City Council (2019) UKSC 98 (our note) was authority for the AHAS guidance of the time not being ‘reliable objective evidence’ (the 2019 version postdated Samuels). The AHAS guidance of the time had only been mentioned by the intervenor in Samuels and was not relevant to the decision at issue in the case.

The point Lord Carnwath was making was that the officer had not resorted to any objective guidance to support his decision that the expenses claimed were unreasonable, with the result that his decision was purely subjective and hence unjustifiable. The wider discussion about objective guidance does not form part of the court’s essential reasoning. It is in general terms which do not engage with the method or the detail of the AHAS document.

Criticism of the ‘impartiality’ of the guidance also failed, with the Court of Appeal noting of the 2019 guidance

This contains different wording which, as I have explained, is clearly and explicitly concerned with issues that are relevant. As I see it, the key test of objectivity for present purposes is whether the relevant aspects of the 2019 guidance are “evidence-based” rather than depending on the subjective view of the case officer. I do not think it can be said that the guidance fails that test, nor that it is unreliable. The guidance purports to be objective and on its face relies on evidence of prices at which relevant goods are offered for sale by mainstream supermarkets, identified by research carried out in London. This court treated the AHAS guidance as a reliable objective source when deciding the appeal in Patel. (Patel v Hackney LBC (2021) EWCA Civ 897 (our note)) I see no reason to think it was wrong to do so, or that the reviewing officer in this case was wrong to do the same.

On ii) – the benefit cap – while it certainly made sense for the application of the cap to be considered at the first stage by the review officer, as a limit on actual income, this had been done. It was hard to understand what the first instance judge had meant with regard to the second stage – the consideration of the reasonable living expenses of the household. But it appeared that “the Judge was saying that the amount of benefit available to Ms Baptie should have been treated as a benchmark for how much she could reasonably spend on living expenses.” The review officer had been well aware of the maximum benefits available to Ms B, and that maxiumum (even before the unclaimed tax credits) was higher than the officier’s assessment of rent plus reasonable living costs.

the Judge was drawing on what Lord Carnwath said in Samuels at (36). That however was based upon the wording of the 2006 Code with its “recommendation”, the effect of which was that “in the absence of any other source of objective guidance” the officer in that case should have treated the applicable levels of income support and income-based jobseeker’s allowance as a benchmark for reasonable living expenses. But the legal landscape was different in 2019, when the reviewer made her decision. There had been major changes in the benefit system in 2012 and 2016, and the language of the 2018 Code was significantly different. It did not refer to the legacy benefits. It was not directory or even advisory. It was permissive. It identified Universal Credit “standard allowances” as a factor by which LHAs “may be guided” when assessing the income an applicant would require to meet essential needs. It did not refer to the benefit cap. The factual position here was also different, as the reviewer had the AHAS figures.

There was a further argument by Ms B that, if there were to be a cross check against benefit rates, as per Samuels, this should be against full, uncapped rates. This was not successful.

First, I do not accept Counsel’s submission that Samuels is authority for the proposition that in assessing reasonable living expenses regard must be had to the amounts of welfare benefits for all family members. The Supreme Court decided that all sources of income are to be taken into account at the first stage. As for the second stage the court decided (1) that the needs of all family members must be taken into account and (2) that “in the absence of any other objective guidance” the sums available via the benefits specified in the 2006 Code should have been treated as a benchmark of the reasonable cost of meeting those needs. The latter conclusion followed from the language of the 2006 Code coupled with the failure of the reviewer in that case to take account of any other objective source of guidance. It did not reflect any wider legal principle.

The 2018 Homelessness code of guidance contained different language, which was permissive, rather than a set benchmark. It did not refer to all benefits, only mentioning Universal Credit standard allowances, by which officers ‘may be guided’. In addition, ‘standard allowance’ in Universal Credit refers to the amount for adults.

The standard allowance for an adult aged 25 or more would amount to less than £4,000 a year, far below the benefit cap. It is additional payments for children (and other factors) that may trigger the application of the cap. That, as is well-known, was the original policy driver behind the legislation, which tied the cap to the estimate average net earnings of a working household. The statutory term for these additional payments in the Universal Credit scheme is “elements” not “standard allowances”. On this analysis, the 2018 Guide does not refer to these elements even as a factor by which officers may be “guided”. The utility of a comparison with a standard allowance properly so-called will vary. It is hard to see that it could be of any help when assessing the reasonable living expenses of a large family such as the Bapties.

While the benefit cap was of relevance at stage 1 – establishing income – as per Paley v Waltham Forest LBC (2022) EWCA Civ 112 (our note), this did not support Ms B’s present case.

Appeal allowed and the review officers decision stood.

Comment

One would hope this is an academic judgment in part for new decisions on affordability being made now. IT is hard to see how the ASHA 2019 guidance on ‘reasonable minimum living costs’ can have any purchase now, with huge inflation and rises in the basic costs of living, and those rises being unevenly distributed.

I note that AHAS September 2021 ‘cost of living’ update now comes with this warning:

This report was updated in September 2021; However due to inflation that is now affecting all food prices we can no longer affirm that this is an accurate representation of prices even in low cost supermarkets.

As this is an ongoing changing situation it is not worth at the present time updating the information although we will do so next year should prices stabilise.

So, basically, forget the ‘cost of living guidance’.

But that, and the weak position in the 2018 statutory Homeless Code of Guidance on cross checking against Universal Credit allowances, returns us to the Samuels position where there is no reliable benchmark for ‘reasonable living costs’ against which affordability can be assessed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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