Homelessness, affordability and reasons

Morayo Fagborun Bennett and Andy Lane highlight the key lessons to be learned from a Court of Appeal homelessness case.

As with all homelessness appeals in the Court of Appeal, the Court in Farah v London Borough of Hillingdon [2014] EWCA Civ 359 was primarily considering whether the original review decision was one that the decision-maker was entitled to reach rather than whether the county court deciding the first appeal was right (see Kitchin LJ in Birmingham CC v Balog [2013] EWCA Civ 1582 at [26]). The Court allowed Ms Farah’s appeal but it is worth noting three issues in particular.

Affordability and the irrelevance of Burnip

The appellant had argued at the county court level and before (para 24) that because she was in receipt of income support which, like disability living allowance, was not intended, she said, to pay for housing costs, it was wrong for the reviewing officer to have regarded those monies as available to make up the shortfall in the rent left after housing benefit.

Reliance had been placed on Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629;  [2013] HLR 1 where, in the context of an Article 14 (discrimination) challenge to the council’s calculation of housing benefit for claimants who were severely disabled, Henderson J said at [45]: “His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs.”

Before the Court of Appeal here, the appellant abandoned this and it was common ground that the housing authority was entitled to have regard to all sources of income (para 26).

A failure to give adequate reasons case

The county court appeal primarily concerned whether or not an applicant in receipt of income support could ever be found to be intentionally homeless if they had failed to pay the shortfall between their rent and housing benefit and/or whether the reviewing officer's decision was irrational. The Court of Appeal allowed the appeal on the different ground that the reviewing officer had failed to provide adequate reasons in what was a marginal case on affordability.

Costs

The respondent however successfully argued that given that the primary question for a homelessness appeal before the CA is whether the original decision was one that the decision-maker was entitled to reach and that the appellant had been successful in the CA on different grounds to those not advanced until that stage, it should not have to pay the appellant’s costs of the county court appeal. The appellant was therefore only awarded her costs of the Court of Appeal and not her county court costs.

Morayo Fagborun Bennett and Andy Lane are barristers at Hardwicke. They appeared for the local authority in this case.