Judgment hand down – Samuels v Birmingham City Council
12 Jun 2019
Judgment was handed down today in the case of Samuels (Appellant) v Birmingham City Council (Respondent) – UKSC 2017/0172. James Stark and Tom Royston of Garden Court North Chambers, instructed by Mike McIlvaney from Community Law Partnership (CLP), acted for Ms Samuels.
The Supreme Court has unanimously allowed Ms Samuels‘ appeal against the dismissals (by HHJ Worcester at the County Court at Birmingham and the Court of Appeal) of her appeal under Section 204 Housing Act 1996 against the decision of Birmingham City Council that she was intentionally homeless. Birmingham City Council decided that she was intentionally homeless for deliberately failing to divert sums from her subsistence benefits to meet a substantial shortfall between her contractual rent and the housing benefit she had been awarded and that the accommodation was reasonable for her to continue to occupy.
The Supreme Court allowed the appeal accepting the fundamental point made on Ms Samuels’ behalf that those subsistence benefits are designed only to meet a basic minimum standard of living and that as a starting point living expenses are reasonable under Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 where they match or are less than the applicable amounts for the family in respect of those subsistence benefits – in Ms Samuels case income support , child tax credit and child benefit. The court held that the question of what were the family’s reasonable living expenses required an objective assessment that cannot depend simply on the subjective view of the case officer and that affordability has to be judged on the basis that the accommodation is to be available “indefinitely”.
Lord Carnwath with whom the rest of the court agreed stated, inter alia,
As the authorities referred to by Mr Stark (para 26 above) show, benefit levels are not generally designed to provide a surplus above subsistence needs for the family. If comparison with the relevant benefit levels is material to the assessment or the applicant, it is difficult to see why it should be any less material in assessing what is reasonable by way of living expenses in relation to other members of the household. Relevant also is the duty under the Children Act to promote and safeguard the welfare of children. The guidance makes clear, as one would expect, that amounts will vary “according to the circumstances and composition of the applicant’s household”. Further, it is to be noted that, immediately after the reference to the household, there is a reference to “a current tariff … in respect of such benefits” (plural), which suggests that the tariff may be looked at in respect of benefits other than income support, and is at least a good starting point for assessing reasonable living expenses.
That was not how the review officer dealt with Ms Samuels’ case. He asked whether there was sufficient “flexibility” to enable her to cope with the shortfall of £151.49 between her rent and her housing benefit. However, the question was not whether, faced with that shortfall, she could somehow manage her finances to bridge the gap; but what were her reasonable living expenses (other than rent), that being determined having regard to both her needs and those of the children, including the promotion of their welfare. The amount shown in the schedule provided by her solicitors (£1,234.99) was well within the amount regarded as appropriate by way of welfare benefits (£1,349.33). In the absence of any other source of objective guidance on this issue, it is difficult to see by what standard that level of expenses could be regarded as other than reasonable.
For these reasons the appeal was allowed and the review decision quashed.
I am delighted that after a long battle to the Supreme Court that we have achieved such an important result for Ms Samuels and her children and have established the principle that individuals living on subsistence benefits who have shortfalls between their contractual rent and housing benefit should no longer face an invidious choice of living below even the poverty line set by already low subsistence benefits or facing intentional homelessness. The starting point in the assessment of affordability of accommodation will be that living expenses that are no higher than subsistence benefit levels are reasonable.
It is unfortunate that this appeal took such a long time to come to the Supreme Court as the Legal Aid Agency and three Special Cases Review Panels appointed by the agency (save for one housing lawyer on the last of those Panels) wrongly decided that the prospects of obtaining permission to appeal, let alone succeeding on appeal, were poor. Despite that setback Mike McIlvaney and Rosaleen Kilbane of the Community Law Partnership and I believed that the case was of such importance to Ms Samuels and as a matter of principle and that the decisions of the lower courts were wrong that we sought permission on a conditional fee basis. I am particularly grateful for the contribution of my colleague Tom Royston in preparing our case in the Supreme Court.