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Law Report: Housing authority to decide tenant's ability to pay rent

Regina v Brent London Borough Council, ex parte Baruwa; Court of Appeal (Lord Justice Hirst, Lord Justice Aldous, Lord Justice Schiemann) 12 February 1997

A local housing authority had a very substantial "margin of appreciation" in deciding whether a person, who had been evicted from their home for non-payment of rent, had become homeless intentionally or whether the failure to pay rent was genuinely attributable to inadequacy of resources to cover the necessities of life.

The Court of Appeal allowed an appeal by the London Borough of Brent and reversed a decision of Roger Henderson QC, sitting as a deputy High Court judge, quashing Brent's decision, communicated in a letter of 24 January 1994, that the applicant was intentionally homeless.

The applicant, Ms Baruwa, became homeless after receiving a notice to quit rented premises for non-payment of rent. She claimed that she could not afford to pay. The council's homeless panel concluded that she could, but that she had spent what resources she had on less essential outgoings, such as paying tuition fees for a university course, maintaining a car and paying child-minding and nursery fees for her children.

Lisa Giovannetti (Paul Barber, Brent LBC) for the council; Terence Gallivan (Alexander & Partners) for the applicant.

Lord Justice Schiemann said the various duties a housing authority owed to a homeless person under Part III of the Housing Act 1985 (now replaced by Part VII of the Housing Act 1996) were significantly less if the applicant had become homeless intentionally. Under section 60(1) of the Housing Act 1985,

A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have

been reasonable for him to contin-

ue to occupy.

On a strict reading of the statute, a person who deliberately refrained from paying his rent in circumstances where he used the only assets at his disposal for buying necessary food for himself and his family would be regarded as intentionally homeless. There was ample authority for the proposition that this was not so. In R v Hillingdon LBC, ex p Tinn (1988) 20 HLR 305, Kennedy J said:

As a matter of common sense . . . it cannot be reasonable for a person to continue to occupy accommodation when they can no longer . . . pay the rent and make the mortgage repayments, without so straining their resources as to deprive themselves of the ordinary necessities of life, such as food, clothing, heat, transport and so forth.

In R v Wandsworth LBC, ex p Hawthorne (1994) 27 HLR 59 at 62, the Court of Appeal made clear that, before coming to a conclusion as to whether it was satisfied an applicant became homeless intentionally, an authority was under a duty to consider the question whether the failure to pay rent was deliberate and

whether it was caused by the inadequacy of [the applicant's] resources to cover both rent and the maintenance of her children.

In this case it was perfectly clear the council asked itself the right question and set about assembling material to enable it to be satisfied whether the failure to pay rent was attributable to the inadequacy of resources to cover the necessities of life. However, the judge upheld the applicant's complaints that the council's inquiries were not detailed enough, and that it jumped to conclusions from the material it had which were not justified.

It was important to note, first, that what were the necessities of life might vary from family to family: to take an obvious example, a family of blind people would have greater needs than a similar family of sighted people.

Second, what were for any particular family to be regarded as necessities of life was a matter which permitted a very substantial margin of appreciation.

Third, it was the authority, not the court, which was charged with making that appreciation. The court would only quash on normal judicial review grounds.

In the present case, the council was entitled to be satisfied on the material before it that after allowing for necessities the applicant had money left over which she had chosen to spend on matters other than rent. Paying pounds 945 for a university course could be regarded as not being a necessity; so could payments of over pounds 50 a week on nursery education when the applicant was no longer working. That was an unassailable decision in this jurisdiction.