Money doesn’t grow on trees: how (not) to conduct an affordability exercise

Charmaine Clubb discusses a recent Court of Appeal ruling that a London borough failed to assess affordability correctly when it offered a property in Stoke-on-Trent to a homeless family.

In Paley v LB Waltham Forest [2022] EWCA Civ 112 the Court of Appeal considered whether the local authority had made proper enquiries and had conducted an appropriate, objective assessment of affordability, sufficient to discharge their duty under s193(2) of the Housing Act 1996.

What is the case about?

Ms Paley is a single parent with four children, in receipt of Universal Credit. In 2016, she was evicted from her private sector rented home in London, because her landlord wished to sell it. She made a homelessness application to LB Waltham Forest. The local authority accepted that it owed Ms Paley the s193 duty, but purported to discharge it by offering private sector rental accommodation in Stoke-on-Trent, 160 miles away.

The local authority concluded that the accommodation was both suitable and affordable. In assessing affordability, they revisited income and expenditure figures provided by Ms Paley in 2019, but they rounded down the figures for utilities and shopping, and made no allowance for public transport or debt repayment. They concluded that the Stoke property was affordable, because Ms Paley had a ‘surplus’ of £10.70 per week.

Ms Paley requested a review of that decision under s202, but she did not specifically challenge the figures. The review concluded that the property was affordable, and a County Court judge upheld that decision. Ms Paley appealed to the Court of Appeal: her appeal argued that the local authority had not made sufficient enquiries, and had erred in law by conducting the affordability assessment using figures that it had updated without her input.

What did the Court decide?

The Court of Appeal rejected Ms Paley’s first ground of appeal challenging the reasonableness of the local authority’s enquiries. In advancing this ground of appeal, Ms Paley raised for the first time the importance of proximity to her three youngest children’s London-based father. The Court of Appeal cautioned against finding an error of law where the reviewing officer had not been invited to consider a matter that was subsequently relied upon. Ultimately, it concluded that there was "simply no basis for asserting that no reasonable local authority could have failed to make further inquiries" [65].

The Court of Appeal did, however, allow Ms Paley’s second ground of appeal challenging the local authority’s approach to the affordability exercise. The local authority had failed to prepare a budget by reference to the needs of Ms Paley, and failed to pay due regard to the Homelessness (Suitability of Accommodation) Order 1996 and the Homelessness Code of Guidance for Local Authorities 2018. By irrationally omitting reasonable expenditure, the local authority’s budget was "inevitably going to plunge Ms Paley even further into debt" [84]. The Court of Appeal therefore held that ‘no reasonable authority could on any objective assessment of the budget … have concluded that the Stoke property was affordable’ [86].

Comment

Another cautionary tale in a long line of affordability appeals. Some particularly interesting points to emerge here:

1. Ms Paley’s failure to challenge the local authority’s figures did not preclude her from appealing their affordability assessment. Although the Court of Appeal acknowledged that Ms Paley was in a weaker position to present a successful challenge, applying judicial review principles, the local authority must nonetheless undertake an objective assessment of the needs of the applicant and their family [79].
2. A local authority must take all relevant matters into account in determining whether a property is affordable. It is irrational for a local authority to prune the budget and omit objectively reasonable items of expenditure in order to make an affordability assessment work.
3. But if an applicant fails to engage with an affordability assessment, then that assessment will not be susceptible to challenge (provided that the applicant had been given an opportunity to be involved, and the local authority had engaged in an objective, evidence-based assessment of affordability) [82].

Charmaine Clubb is a barrister at 42 Bedford Row.