Tenants “homeless” if rent is unaffordable? – new caselaw

by Readers Question

9:16 AM, 17th June 2019
About a month ago

Tenants “homeless” if rent is unaffordable? – new caselaw

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Tenants “homeless” if rent is unaffordable? – new caselaw

The important case of Samuels v Birmingham City Council was decided by The Supreme Court on 12th June 2019. This case decided that a person who had been evicted for rent arrears, as the Housing Benefit did not cover the full rent (£151.49 pcm shortfall), was not to be considered as “intentionally homeless”.

This new case backs up the earlier case law of R v Hillingdon LBC ex p Tinn (1988), and R v Wandsworth LBC ex p Hawthorne (1994), which determined that a person can be considered to be “homeless” if the accommodation available to them is so unaffordable that it would cause them to “deprive themselves of the ordinary necessities of life, such as, food, clothing, heat, transport and so forth”.

The Samuels case does help to clarify that the welfare benefit levels are set at a “subsistence level and are not designed to give a level of income that allows flexibility to spend outside maintaining a very basic standard of living”, and that “income support is not intended to cover housing costs”.

These three cases, considered together, lend strong support to the contention that where there is a Housing Benefit shortfall (or Universal Credit Housing Element shortfall), such that the person can only pay their rent if they use money from their other “subsistence level” benefits, then that person could be considered to be “homeless” as it would not be reasonable for them to continue to occupy unaffordable accommodation.

Furthermore, when considering whether it is “reasonable” for a tenant to continue to occupy accommodation, once they have been served with a valid s21 Notice (or s8 Notice, or Notice to Quit), it could be argued that Councils should take into consideration:
• the financial cost (the added debts the tenant will incur from the cost of court proceedings being passed on to them),
• the physical and mental effects (stress, anxiety, illness, etc) on the tenant and their household members, and
• the damage to their credit history if they have a County Court Judgement (CCJ) registered against them.

In light of the “affordability” case law and other factors mentioned above, I believe that the Council should NOT advise tenants to continue to occupy the accommodation after the end date of the Notice period.

Robert



Comments

Paul Shears

10:20 AM, 17th June 2019
About a month ago

I'm afraid this drives me to utter despair that such a glaringly obvious conclusion requires any input whatsoever from such a highly paid elite. It highlights the utter futility of the whole social structure.

Kate Mellor

10:39 AM, 17th June 2019
About a month ago

I entirely agree Robert. What councils are doing to people is unconscionable. Forcing tenants who have no legal defense of the eviction notice to go through this is nothing but an abuse of the process of law and is stressful and damaging to the tenant. They've signed a legally enforceable contract to behave in a certain way under the circumstances that they are served a valid section 21 notice, however they are forced to break that legally binding agreement and ensure the landlord has to proceed through the courts to enforce their legal rights. This is only morally acceptable in cases were there is a genuine belief in the tenant's right to challenge the notice. Where no such belief exists and there is no intention to challenge it then the tenant should not be forced into the position of having to break the terms of their contract.

In any reasonable person's mind a tenant acting in accordance with their legal obligations can never be accused of making themselves intentionally homeless, unless the council can PROVE that a tenant had a legal defense to the section 21 notice that has a better than 50% chance of being successful AND that they were advised of such.

We usually hold government and council employees up to a higher level of moral conduct than we would a 'for profit' entity, but in this they have fallen well short of that moral duty.

Kate Mellor

11:02 AM, 17th June 2019
About a month ago

I would love to see a test case against a council for damages caused to a tenant by following council insistence that they stay put until such time as they are forceably evicted by bailiffs - the court costs they've been lumbered with that they are now paying back at so much a week until the end of time as an attachment to earnings on their low paid job, the stress and trauma to their families, the fact that they are no longer able to apply for any private tenancy and are ineligible for any type of credit because they have an undischarged ccj.

Better still a class action case, costing the council a huge sum of money in legal costs and reparations to the tenants.

That is the only way that councils will end this hugely damaging policy, when it starts costing them a lot of money. Sadly that is taxpayers money, but it will be an investment in change in my opinion.

Paul Shears

11:26 AM, 17th June 2019
About a month ago

Reply to the comment left by Kate Mellor at 17/06/2019 - 11:02
Very well said.

Rob Crawford

12:25 PM, 17th June 2019
About a month ago

Try getting a Council to put the advice they give to tenants to stay until evicted by bailiffs in writing! They will always be in denial. They say it's their job to advise tenants of their rights - really? It is then up to the tenant to decide what to do - but if the tenant leaves before the bailiffs arrive - they won't get rehousing assistance from them! So this ruling is interesting. Shelter, CAB, Crisis and Councils etc need to take note!

Luke P

12:45 PM, 17th June 2019
About a month ago

Once s.21 is a thing of the past, could a Judge, at a s.8 arrears Hearing of a HB/UC tenant, reasonably not expect a tenant pay over-and-above exactly that which is received in Housing Benefit/UC Housing Allowance and therefore rule that the tenant remains in occupation? If so, surely all LLs should be refusing a tenant whose Housing Benefit doesn't wholly cover the rent?

And why are we now ‘ring-fencing’ certain benefits to their actual need? Isn’t this what UC was all about getting away from...one monthly payment of all benefits rolled into one for the tenant to manage as they see fit?

Jonathan Clarke

21:10 PM, 17th June 2019
About a month ago

It also cast a question on the supposed role of the DHP funding pot which is now routinely and increasingly used as a temporary stop gap and kept many a tenancy afloat of mine since the LHA freeze. When thats withdrawn after 3 mths, 6 mths or a year the rent reverts by default to being unaffordable and I serve a Sec 21 . The council then (not the tenant) is surely the one who in in fact makes the tenant intentionally homeless by their abrupt withdrawal of DHP funding to top up the rent . The tenant is just an innocent bystander and a powerless victim of a broken welfare system

Cathie Hawkins

21:56 PM, 17th June 2019
About a month ago

I thought that the most recent act meant that it no longer mattered if they where intentionally or unintentionally homeless - they still have a duty to rehouse them.

Old Mrs Landlord

22:34 PM, 17th June 2019
About a month ago

Reply to the comment left by Jonathan Clarke at 17/06/2019 - 21:10This may be your experience but it differs throughout the country. In the unitary authority where our properties lie we could be granted what is in effect a bribe of £500 to take on a tenant from their housing list. In our case we would have to evict tenants on benefits to do that so, however often they keep pushing this offer, it's not going to happen. They also offer help with improving insulation to bring properties up to a higher EPC classification on condition the improved premises are made available for a homeless person or someone waiting to be rehoused from temporary accommodation. These are one-off payments to the landlord so the effect you describe would not arise, but it's an interesting thought that the council is in fact responsible for making the tenant homeless in such a case.

Chris Daniel

23:55 PM, 17th June 2019
About a month ago

There have been a few cases where Landlords have complained to the LGO and been upheld, ( and one or two not - perversely ) where Councils have told Tenants to simply stay until bailiffs evict.
The Homelessness Reduction Act 2017 is very tactfully worded to 'semi-justify' this stance by L.A's because the Central Govt know their local govt arm are financially incapable of doing anymore for tenants who approach them seeking accommodation.
Provided a L.A ' goes through the motions ' of registering an applicant as potentially Homeless within the next 56 days - which they would be a few days after receiving a Section 21 and makes efforts to secure other accommodation, there is no breach of the HRA 2017. ( place on Social Housing list and advise search for other PRS rentals )
L.A's just have to record the Homelessness application, and such statistics are scornfully scrutinised by Central govt.
Where L.A's are in breach of HRA, is merely telling a Tenant Homelessness applicant to just remain until bailiffs evict. The smarter L.A's 'go through the motions' but its difficult in many cases to get the full account of LA interaction from the tenant.
Its the increased cost of Emergency accommodation that LA's have to bear before more permanent housing, usually in another PRS property ! that drives the ' leave it till the last minute ' approach.
Sec 21 abolition will massively multiply LA's burden as an increasing section of PRS simply won't be offering tenancies to perceived higher risk groups !
Talk about DSS discrimination, the Govt aint seen nothing yet ! and its all of their own making.

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