Emma Godfrey represents successful local authority in the Court of Appeal – intentional homelessness and affordability of accommodation

June 21, 2021

Emma Godfrey acted for the successful local authority in the Court of Appeal case of Patel v London Borough of Hackney [2021] EWCA Civ 897. Judgment has now been handed down.

This was a second appeal against the local authority’s review decision under s.202 Housing Act 1996 that the appellant had become homeless intentionally by not paying his rent.

The case turned on the authority’s decision that the appellant’s accommodation had been affordable and in particular on its assessment of his reasonable living expenses. The reviewer had carried out an assessment of the appellant’s weekly expenditure but in doing so had disregarded an allowance for replacement of white goods, stating that this was not essential expense and that there was sufficient flexibility in the appellant’s weekly expenditure to cater for such eventualities.

The appellant argued that the reviewer had erred in considering essential expenditure, rather than reasonable expenditure, and that there was an inconsistency between Art. 2 Homelessness (Suitability of Accommodation) Order 1996, which required an assessment of the Appellant’s reasonable living expenses, and paragraph 17.46 of the Homelessness Code of Guidance 2018, which states that housing authorities need to consider whether the applicant can afford their housing costs without being deprived of basic essentials.

The Court of Appeal rejected this argument. Paragraph 17.46 of the Code of Guidance is no more than an elaboration of what level of expenditure it should be reasonable to take into account in deciding whether the accommodation was affordable.

The reviewer’s reference to there being sufficient flexibility in the appellant’s weekly expenditure to cater for a possible need to replace white goods was a recognition that such expenditure might be both necessary and reasonable, but would be occasional. His conclusion was properly open to him on the facts of the case and the decision disclosed no error of law.