LAW REPORT: Impecuniosity irrelevant to rent benefit

LAW REPORT 28 February 1996

Regina v Waltham Forest London Borough Council, ex parte Holder and another; Queen's Bench Division (Mr Justice Brooke); 9 February 1996

A housing authority, when fixing a claimant's eligible housing benefit by reference to suitable alternative accommodation, was entitled to ignore the fact that such accommodation was not financially available to a claimant who was unable to pay the deposit which was usually required.

Mr Justice Brooke dismissed applications by Michelle Holder and Novia Samuels for judicial review of the decision of the council's housing benefit review board that their housing benefit entitlement was half the rent payable at their accommodation.

The applicants, who had no jobs and claimed income support, looked for accommodation but found that most landlords required a deposit and/or rent in advance which they were unable to pay. Eventually they found bed-and-breakfast accommodation sharing a double room for pounds 84 each per week. They applied to the council for housing benefit. Their housing benefit was assessed as pounds 42 each per week following the rent officer's valuation.

They applied to a housing benefit review board, contending that the rent of pounds 84 was not unreasonably high because there was no other suitable alternative accommodation as they were unable to pay deposits and many landlords were reluctant to let to people on income support.

The housing benefit review board declined to take into account considerations relating to the applicants' impecuniosity, decided there was available cheaper suitable alternative accommodation and that the council's decision was in accordance with regulation 11(2)(c) of the Housing Benefit (General) Regulations 1987, which allows the housing authority who considers that the rent is unreasonably high in comparison with the rent payable in suitable alternative accommodation elsewhere to reduce the claimant's eligible rent by such amount as it considers appropriate.

Richard Drabble QC and Nathalie Lieven (T.V. Edwards) for the applicants; Noah Weiniger (Borough Solicitor) for the council.

Mr Justice Brooke said that regulation 11(3) which dealt with vulnerable persons introduced the concept that suitable cheaper alternative accommodation must be "available", so that accommodation was not regarded as available if there was little or no possiblity of the claimant being able to obtain it, for example if it could only be obtained on payment of a large deposit which the claimant did not possess.

That concept of availability was not present in regulation 11(2). The authority's attention was focused primarily on a comparison between the accommodation occupied by the claimant and the relevant features of "suitable alternative accommodation". It was to have regard to the size and rent of suitable alternative accommodation.

Paragraph 11(6)(a) identified two matters of which the authority must take account in deciding what was suitable alternative accommodation. The first was the nature of the accommodation and facilities having regard to the age and state of health of the claimant and any members of his fam-ily. Nothing was said about the claimant's pecuniosity or impecuniosity.

The second focused on the terms of the letting. The authority must be satisfied that accommodation with a comparable level of security of tenure did exist.

There was nothing in regulation 11(2) or 11(6)(a) to suggest that, in the ordinary case to which regulation 11(3) did not apply, the authority must go further and consider whether the alternative accommodation was financially available before it could be regarded as suitable.

It would have been only too easy for the Secretary of State to introduce a test that alternative accommodation must be financially available to any applicant. The Secretary of State had chosen, however, not to go down that route in the present context.

An authority, when making the necessary comparison with suitable alternative accommodation, need not concern itself with any financial consideration, other than the question of rent, which might make parts of the relevant property market wholly or relatively inaccessible to applicants. If satisfied that there was an ascertainable market rent and an active market, then the authority was entitled to leave the applicants to take their chance of finding accommodation in that market. The applications were dismissed.