A single mother of four forced out of her home over a shortfall in housing benefit has been backed by the Supreme Court in a legal challenge to being designated intentionally homeless by one of Britain’s biggest councils.
The ruling is already billed as a key judgement in determining the future for the welfare system.
Known only as ‘Ms Samuels’, she was using non-housing benefits intended to cover other living costs like food and clothing to cover the £35 weekly gap between her housing benefit and her rent.
When she lost her private tenancy, she approached Birmingham city council for homeless assistance, saying she could not meet the shortfall.
The council refused her request, telling her to use her non-housing benefits to plug the shortfall and decided she had intentionally become homeless.
Now, the Supreme Court says the council’s approach was unlawful.
Delivering the judgement, Lord Carnwath said: “I find it hard to see on what basis the finding of intentional homelessness could be properly upheld.”
In effect, the court found it was unlawful to force a tenant to spend money intended for basic daily living needs on their rent because housing benefit had been reduced – when benefit levels were not designed to provide a surplus above subsistence needs for the family.
As such, the court decided unanimously that benefit levels provided in respect of children were relevant to assessing what was reasonable by way of their living expenses.
Speaking after the case, Ms Samuels said she was “delighted” with the verdict.
“I have been fighting for so long for this, and have been suffering from the uncertainty of not knowing what will happen to me and the children,” she said.
Both the Child Poverty Action Group (CPAG) and Shelter, who intervened in the case, said it was right that the court ruled it wrong to expect families to rely on money they need for basic living expenses to pay their rent when their housing benefit can’t cover it.
Shelter’s chief executive Polly Neate said it was an “important judgment for the future of the welfare system”.
“We’re very pleased to see the court recognise that it’s not lawful to expect families to rely on money they need for their basic living expenses to pay their rent when their housing benefit can’t cover it,” said Neate,
“When someone is forced to choose between rent and keeping their children fed, they cannot be viewed as ‘intentionally’ homeless when they choose the latter.
“We are hearing from more and more families who are choosing between rent and absolute necessities like heating and food. We urge the government to lift the freeze and make sure benefits cover at least the lowest third of the rental market.”
Martin Williams, a welfare rights adviser at the Child Poverty Action Group said where benefit payments are set a bare minimum level for the basic essentials, no mother should have to see her children go short of essentials in order to pay the rent.
“As the Court also observed, there is a current shortage of reliable objective guidance on reasonable levels of living expenditure to assist authorities in assessing the affordability of housing. We hope that the government will now address that shortfall based on the principles endorsed by the Supreme Court,” Williams said.
Stats show child homelessness in England has surged by 80% since 2010, with a new household now homeless every five minutes.
Around 1.6 million adults rely on housing benefit to help with private rents, most of whom are women, but the benefit covers only a portion of private sector rent in 95% of England’s broad rental areas.
Local Housing Allowance (LHA) rates have been frozen since April 2016 – although private rents have risen by 22% since 2010 – so inflation means the freeze is a cut in real terms.
Background – Samuels v Birmingham city council
Ms Samuels was an assured shorthold tenant of a property in West Bromwich, Birmingham, where she lived with four children.
In July 2011, having fallen into rent arrears, she was given notice to leave.
She later applied to the respondent council to be treated as homeless under the 1996 Act.
A council is under a duty to secure accommodation to a person found homeless if certain conditions are satisfied.
One condition is that they are not satisfied that the person “became homeless intentionally”.
Essentially, that definition is dictated by whether an applicant deliberately did or failed to do anything which caused them to leave accommodation that was available and would have been reasonable for them to continue to occupy.
The court drew attention to Article 2 of the Homelessness (Suitability of Accommodation) Order 1996, which provides that, in determining whether it would be reasonable for a person to continue to occupy accommodation, a council can take into account whether that accommodation is affordable.
That includes consideration of the financial resources available to that person, including “social security benefits”, and consideration of the person’s “other reasonable living expenses”.
And the council is required to have regard to guidance given by the Secretary of State, which at the time of the Samuels case was the Homelessness Code of Guidance for Local Authorities issued in 2006.
A specific paragraph in this Code states: “In considering an applicant’s residual income after meeting the costs of the accommodation, the Secretary of State recommends that housing authorities regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the level of income support or income-based jobseekers allowance that is applicable in respect of the applicant, or would be applicable if he or she was entitled to claim such benefit.”
Birmingham city council decided that Ms Samuels was intentionally homeless, on the grounds that the accommodation in West Bromwich was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent.
In concluding that the accommodation was affordable, the court heard the council found that the shortfall in rent could have been met by greater flexibility in the household budgeting.
Ms Samuels’ appeal to the County Court against the council’s decision was dismissed and her further appeal was dismissed by the Court of Appeal.
The central issue in her appeal to the Supreme Court lay in whether the council adopted the correct approach in determining that the accommodation was “affordable” for the purposes of the 1996 Act.
In its judgement, the Supreme Court unanimously allowed the appeal – quashing the council’s decision.
Samuels v Birmingham city council – How the ruling was reached
While the 1996 Order requires a council to take into account all sources of income, including all social security benefits, there is nothing in it to require or justify the exclusion of non-housing benefits of any kind.
It also requires consideration of the applicant’s “reasonable living expenses”, which necessitates an objective assessment, not simply the subjective view of the case officer.
Even if the recommendation of the Code in respect of income support is not interpreted as extending to benefits for children, the lack of a specific reference does not make the level of those benefits irrelevant.
Benefit levels are not generally designed to provide a surplus above subsistence needs for the family.
If comparison with relevant benefit levels is material to the assessment of the applicant, it should not be any less material in assessing what is reasonable by way of living expenses in relation to other members of the household.
The court also considered the duty to promote and safeguard the welfare of children under the Children Act 1989 as also relevant.
To the court, the guidance makes clear that the amount of an applicable benefit will vary “according to the circumstances and composition of the applicant’s household”.
It also refers to the “current tariff…in respect of such benefits” implying that the tariff may be looked at in respect of benefits other than income support, and is at least a good starting point for assessing reasonable living expenses.
The review officer in Ms Samuels’ case asked whether there was sufficient “flexibility” to enable her to cope with the shortfall between her rent and her housing benefit.
But the court said the question ought to have been what her reasonable living expenses were (other than rent), to be determined having regard to both her needs and those of the children.
The £1,234.99 total expenses shown in a schedule provided to the court by Ms Samuels’ solicitors was regarded as was well an appropriate amount by way of welfare benefits (£1,349.33).
To the court, it was “difficult to see” by what standard those expenses could be regarded as unreasonable.
The appeal was allowed and the review decision quashed, with Lord Carnwath stressing he found it hard to see – given the information available – on what basis the finding of intentional homelessness could be properly upheld.
He hoped that, on reconsideration, the council will be able to accept full responsibility under the 1996 Act for Ms Samuels and her family.