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

by Readers Question

9:16 AM, 17th June 2019
About 2 years 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.



Old Mrs Landlord

7:19 AM, 24th June 2019
About 2 years ago

Reply to the comment left by Robert Mellors at 23/06/2019 - 20:56Shelter would seem ideally placed to support a test case tenant through such an application as you outline and set a precedent. They would have nothing to lose and possibly much to gain on behalf of the "DSS" tenants they champion. If nothing else, it would certainly highlight the true position of the private landlords and letting agents they have been demonising in the public mind.

Robert Mellors

22:02 PM, 24th June 2019
About 2 years ago

Reply to the comment left by Mick Roberts at 24/06/2019 - 06:58
Indeed it would Mick, but they are not going to do this unless they are inundated with tens of thousands of HB/UC tenants all claiming homelessness on the grounds that it is unreasonable to remain in accommodation that is unaffordable. - Let's face it, this isn't going to happen on that scale, so the "system" isn't likely to change any time soon.

HOWEVER, for clued up savvy landlords and tenants, the homelessness argument (if argued effectively) could be a VERY HUGE reason for Councils to provide Discretionary Housing Payments (DHP) to your tenants where there is a significant shortfall, and when the DHP budget runs out then they will have to use the Homelessness Prevention Funds that they all have, because the potential consequences of not paying the rent top up for tenants could be widespread homelessness applications, appeals, and judicial reviews!!!

Robert Mellors

22:09 PM, 24th June 2019
About 2 years ago

Reply to the comment left by Old Mrs Landlord at 24/06/2019 - 07:19
I agree Old Mrs Landlord, Shelter helped to bring the Samuels case so they are already familiar with that. I could not understand why the Tinn and Hawthorne cases were not mentioned in the legal proceedings for the Samuels case, as they had already set the precedent.

However, as much as Shelter may wish to aid someone who has been found to be intentionally homeless (past tense), do they really wish to rock the boat by arguing that 2 million tenants are homeless because their rent is unaffordable? - That's a huge political gamble for an organisation so reliant on Governmental support (and public sympathy).

Old Mrs Landlord

8:34 AM, 25th June 2019
About 2 years ago

Reply to the comment left by Robert Mellors at 24/06/2019 - 22:09
Yes, it's a pity but I can see your point and you're probably right, it's unlikely to happen.

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