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

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

9:16 AM, 17th June 2019, About 5 years ago 34

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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


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Comments

Mick Roberts

7:59 AM, 22nd June 2019, About 5 years ago

Reply to the comment left by Kate Mellor at 17/06/2019 - 11:02
Brilliant words Kate:
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.

Mick Roberts

8:00 AM, 22nd June 2019, About 5 years ago

Reply to the comment left by Jonathan Clarke at 18/06/2019 - 00:28
Ha Ha & yes that's the same in Nottingham JC:

I never take tenants from their housing list as they only offer totally unsuitable ones.

Mick Roberts

8:06 AM, 22nd June 2019, About 5 years ago

Reply to the comment left by Old Mrs Landlord at 18/06/2019 - 18:04
Certainly is Madness.
Here in Nottingham, we have Selective Licensing which is making loads homeless, they charging £780 a house & not inspecting the houses & making Landlords jump through hoops till 10pm.
Yet the other side of the Council, the Homeless section are begging & offering Deposit & rent up front to us Landlords to take the tenants that have just been evicted from the Licensing side of the Council. Nuts.
I'm begging 'em to talk together. The Homeless side daren't shout up cause scared for their jobs.
They aren't even asking Landlords why they've issued the Section 21. There is no record to say 85% increase in homeless cause of Licensing.
The Councillors just say complicated & issues like Universal Credit. Bullsxxt. I'm the biggest Landlord in Nottingham to be affected by both & UC yes is a problem, but not enough been affected by it yet. The homeless here is cause of Licensing.

Mick Roberts

8:10 AM, 22nd June 2019, About 5 years ago

Reply to the comment left by Monty Bodkin at 18/06/2019 - 20:57
Great words Monty:
*No new DSS tenants.
*Gradual phasing out of existing DSS.
*Selling up as appropriate.
*Getting out of licensing areas (last one left in Nottingham!).
*Only taking on new tenants who I am 99% sure I'll never have to evict.
*Not converting or building any new homes, or ever likely to do so again.
*Spending my working capital on improving my own homes for once.
-And I'm really enjoying spending it, I've finally got Sky telly, just like my DSS Tenants!

Yes, we aren't taking these vulnerable tenants any more, they the real losers, we will always manage, survive, I will still eat, drink, have shelter, go on holiday, the Council & Govt measures are taking everything away from those at the bottom of the housing chain.

And yes ha ha, I was the last of out of all me tenants to get Sky TV. Ruddy expensive in't it.

Mick Roberts

8:17 AM, 22nd June 2019, About 5 years ago

Reply to the comment left by Monty Bodkin at 20/06/2019 - 07:52
Monty,

U was being polite.

I'd say 7 times more likely to be evicted.
15 times more to be in arrears.
11 times more in the day.
And my working Letting Agent tenants cost me 10mins per year. My HB lot each one several of them 3 hours pw.

And yes why don't they come talk to us. We are here. I'm available Mon to Fri 8 to 5. If they sort out direct payment on UC, I'll even talk to 'em Sat morning.
Frank Fields MP who was chairing that enquiry did contact me & ask for some words, experiences etc., what he's done with my words I don't know.

Mick Roberts

8:20 AM, 22nd June 2019, About 5 years ago

Back to the main post:

Gone are the days where HB used to pay for your rent. And hopefully this case may bring it more to the forefront when this ridiculous 5 year benefit freeze ends or should be before, to bring the LHA rates up to proper rents. Cause if private working people are getting all the houses cause they can afford it cause they pay all the increased costs that's Govt and Councils are putting on Landlords rented accommodation which more or less immediately impacts on the rent the tenant pays, this leaves the HB tenant not being able to afford anywhere, unless they don't eat or gas electric etc.

Kate Mellor

11:31 AM, 22nd June 2019, About 5 years ago

Brilliant detailed explanations Monty in both those two post! And I absolutely agree, licensing is the biggest scam yet! It’d be hilarious if it wasn’t so tragic what the government is doing to the rental sector and how they won’t stop “helping” benefits tenants right out of a home and into emergency accommodation. 🤬

Robert M

20:56 PM, 23rd June 2019, About 5 years ago

There are some very interesting and helpful comments in these replies, but few seem to have grasped the enormity of this case law (Samuels, Tinn, Hawthorne). It is now seriously arguable that ALL tenants on income based benefits, where the Housing Benefit does not cover the full rent, are legally homeless.

They are legally homeless, even when they have a tenancy/home, because it is not affordable. If it is not affordable, then it is not reasonable for them to continue to occupy it, (as to do so would mean they have to use their food money to pay the rent top up).

With the Local Housing Allowance being so much lower than actual rents, the HB/UC very rarely covers the full rent, so where it does not cover the full rent, then the tenant could make a homelessness application to the Council on the basis that the rent is unaffordable and it is therefore not reasonable for them to continue to occupy the property. - This would then put a legal duty on the Council to correct this position (prevent this homelessness), e.g. by paying the full rent to the landlord or rehousing the tenant.

Kate Mellor

22:54 PM, 23rd June 2019, About 5 years ago

Reply to the comment left by Robert Mellors at 23/06/2019 - 20:56
Now that’s what I’m talking about! Robert is the guru...

Mick Roberts

6:58 AM, 24th June 2019, About 5 years ago

Reply to the comment left by Robert Mellors at 23/06/2019 - 20:56
Rob,

Would be nice if they paid the full rent while they still living there, wun't it. Not DHP though, something permanent.

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