Our grateful thanks to Liam Evans and Daniel Grütters of One Pump Court for this note of a s.204 appeal on an affordability assessment for a suitability decision, including the vexed topic of use of AHAS guidance.

Ake v Lewisham Borough Council (2024) K40CL060 (Central London County Court 4 February 2024) (copy of judgment)

This was a statutory appeal pursuant to section 204 of the Housing Act 1996 (‘the 1996 Act’), against a review decision made by Lewisham Borough Council on 27 February 2023. The issue on appeal was whether the review decision took an unlawful and/or unreasonable approach to the assessment of the affordability of accommodation it had secured for Ms Ake in Bow.

Facts

Ms Ake lived with her two children (aged 17 and 8 at the time of the review decision) in Lewisham. In May 2022 Ms Ake approached Lewisham Borough Council for assistance with obtaining accommodation, as she was facing eviction from her privately rented property. Lewisham accepted the relief duty towards Ms Ake pursuant to section 189B of the 1996 Act.

In September 2022 Lewisham offered Ms Ake accommodation in Bow (‘the Bow property’). Ms Ake’s solicitors requested a review of the suitability of the property and asked whether an affordability assessment had been carried out.

In his decision letter, dated 27 February 2023, the reviewing officer concluded that the Bow property was suitable for Ms Ake and her family. He was satisfied that she would be able to meet her “housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to [her] circumstances.”

In reaching his decision, the reviewing officer relied on the fact that Ms Ake’s residual income (the sum left after her monthly rent and council tax was deducted from her monthly income) exceeded the Maximum Universal Credit allowance that she would be entitled to if unemployed.

The reviewing officer also relied, in part, on guidance issued by the Association of Housing Advice Services (‘AHAS guidance’). He described Ms Ake’s monthly food expenditure of £650 as “excessive” and she could “save at least £200 a month”. Moreover, he stated that pocket money for her children was not “an essential expenditure” and she could “make further savings on this expenditure of £100-£120 a month.”

Submissions

The Appellant submitted:

• The reviewing officer should have consistently, rather than selectively, applied the AHAS guidance.
• If the AHAS guidance had been consistently applied the reviewing officer would have found there was a shortfall between the Appellant’s monthly income and expenditure of £90.24.
• The reviewing officer failed to take into account the Appellant’s monthly spend on a TV licence, clothing and swimming lessons for her children.
• The reviewing officer failed to take into account that the fact the Appellant was having difficulty managing her finances.
• Contrary to the guidance provided by the Supreme Court in Samuels v Birmingham City Council [2019] PTSR 1229, the reviewing officer relied on his own subjective views of what were reasonable living expenses.
• Even if the figures and reductions used by the reviewing officer were correct, the Appellant would have still been left with a shortfall of £123.32.

On that basis, the Appellant submitted the property was not affordable (and therefore not suitable), the reviewing officer’s conclusion was perverse, and the decision was not procedurally proper.

The Respondent submitted that the reviewing officer had been entitled to rely on both the AHAS guidance and Ms Ake’s maximum universal credit entitlement in making his decision. The Respondent also questioned whether specific expenses, such as council tax, listed by the Appellant were “applicable in her circumstances”.

Judgment

HHJ Roberts rejected submission (1) but accepted submissions (3) and (6). All the expenses listed by the Appellant should have been considered, and the reviewing officer failed to provide reasons for disallowing each item. Even on the Appellant’s figures there was a shortfall which rendered the Bow property unaffordable.

The Judge held that the errors in the reviewing officer’s assessment of affordability undermined the basis of the decision. As a result, the review decision was quashed, with a new assessment of the facts to be undertaken.

Daniel Grütters appeared on behalf of the Appellant (instructed by Morrsion Spowart). Mathew McDermott appeared on behalf of the Respondent.