Trinity Housing Barrister Summary of Paley v London Borough of Waltham Forest [2022]

Trinity Social Housing Law barrister, Parissa Najah has prepared the following summary of the recent case of Paley v London Borough of Waltham Forest [2022] EWCA Civ 112 featured in the latest edition of Housing Law Week.    

The Court of Appeal considered whether the local authority made proper inquiries and conducted an appropriate objective assessment of the affordability of a private rental property offered to Ms Paley sufficient to discharge their duty to rehouse her pursuant to s 193(2) HA 1996.

The appeal was dismissed in relation to Ground 1, the reasonableness of the inquiries made by the local authority. The court allowed the appeal in relation to Ground 2, the approach of the local authority to the affordability exercise which it found to have not been conducted properly.

The Law

Under section 193 of the Housing Act 1996, if the local authority is satisfied that the applicant is homeless, eligible for assistance, has a priority need and it is not satisfied that the applicant is intentionally homeless, then the local authority will ordinarily owe a duty to rehouse the applicant. That duty continues until one of the events at s 193(5) -(7AA) occurs, including an offer of private rented accommodation. By virtue of s193(7F) (ab) HA 1996 the local housing authority should not make such an offer ‘unless they are satisfied that the accommodation is suitable for the applicant’.

Suitability includes both the location of the property and its affordability. Under section 208(1) HA 1996 the local authority shall, so far as is reasonably practicable, secure accommodation in the district of the applicant. If the property is not suitable, then by virtue of s 206 (1)(b), the main housing duty will not be discharged.

Background

Ms Paley lives with her 4 children, aged 21 to 5. After being served with a section 21 notice, she presented to the local authority as homeless and in November 2016, the family was placed in temporary accommodation in Bexley. On 3 June 2017, the local authority accepted that it owed Ms Paley a full housing duty under s 193(2) HA 1996.

In applying for housing, Ms Paley completed an Accommodation Needs form, setting out her expenditure and confirming that none of her children had exams coming up. Ms Paley then had an updating conversation with a senior housing officer about her circumstances

The local authority offered her accommodation in the private rental sector. The property offered to Ms Paley was a flat in Stoke-on-Trent in Staffordshire, some 161 miles outside the local authority area.

Ms Paley contended that the property is not suitable due to its location and affordability. In relation to ground 1, it was submitted that the local authority had failed in that they did not specifically consider the relationship between the children and their father, in spite of this not having been raised by Ms Paley in her correspondence with them.

In relation to ground 2, Ms Paley took issue with the council’s approach to the affordability exercise.

The Judgment

The court highlighted the decision of Baroness Hale in Nzolameso v Westminster [2015] UKSC 22, a case which highlighted the duty on the local authority to accommodate in borough where reasonably practicable and to take into account the welfare of each child.

The court then looked at the Supreme Court’s decision on affordability in Samuels v Birmingham City Council [2019] UKSC 28, where Lord Carnwath emphasised at [34] that the assessment of reasonable living expenses requires an objective assessment and cannot depend simply on the subjective view of the case officer.

In line with the decision in Runa Begum v Tower Hamlets LBC [2003] UKHL 5, the court approached the appeal on judicial review principles.

The court relied upon the judgment in Cramp v Hastings [2005] H.L.R. 48 to find that the case did not succeed on this ground, stating that ‘the court should be hesitant indeed to find that there has been an error of law in circumstances where the reviewing officer was never invited to consider a matter now relied upon by the applicant’ [66]. The appeal under ground 1 was therefore dismissed in that the arguments regarding location and proximity of the father’s children had not been raised with the local authority by Ms Paley.

Interestingly, in its assessment on this ground the court observed that

‘the whole of the process, including the right to make submissions by the applicant, is part of the discharge by the local authority of their duty. The ‘minded to’ letter is proactive, the local authority is making further inquiries…the applicant is given a further opportunity to inform the local authority of any other areas which should be further investigated’ [64].

In coming to their decision on Ground 2, affordability, the local authority had disregarded what Ms Paley stated were her transport costs and also decided that the amount she was paying in service of her debts was particularly high. The court was clear that:

‘A local authority is acting irrationally if, in order to make the figures work, they simply omit expenditure which on any objective view would be reasonable for the particular applicant who is in receipt of universal credit, to incur in order to meet her objectively reasonable responsibilities and liabilities’ [77].

Accordingly, it was found that no reasonable authority could on any objective assessment of the budget have concluded that the Stoke property was affordable. This finding that the local authority had failed to conduct an objective assessment was made in spite of Ms Paley failing to provide updated figures or challenge those figures provided to her. The court concluded that it would be ‘unrealistic to make the lawfulness of the assessment of affordability dependent on the direct input of the applicant upon the affordability exercise’ [79-81].