Birmingham City Council v Balog

This is an appeal against a decision of Miss Recorder McNeill QC given on 4 March 2013 in the Birmingham County Court. It is brought with the permission of Lewison LJ. The Recorder had before her an appeal by Mr Michael Balog under s.204 of the Housing Act 1996 (“the 1996 Act”) against a review decision of the Birmingham City Council (“the council”) upholding its original decision that Mr Balog was intentionally homeless within the meaning of s.191 of the 1996 Act.

A person cannot become homeless intentionally unless he has ceased to occupy accommodation which it would have been reasonable for him to continue to occupy. In assessing reasonableness, one of the factors which a council must take into account is affordability. The critical issues in this appeal are first, whether the council took into account adequately or at all the relevant statutory guidance; second, whether the council provided adequate reasons in relation to affordability; and third, whether the council’s decision was irrational.

The Recorder allowed the appeal on the basis of the first issue. She found that the council had failed to have regard to the relevant statutory guidance and that this amounted to a procedural failure which vitiated its decision. However, she was not satisfied that the council had failed to provide adequate reasons or that its decision was irrational.

The council now appeals against this decision, and contends that the Recorder’s conclusion on the first issue was wrong and elevated form over substance. Mr Balog responds that the Recorder came to the right conclusion on the first issue but that she should have found in his favour on the second and third issues too. He has therefore raised these by way of respondent’s notice.

Mr Balog is 37 years old and from early in 2010 lived with his wife and two children in a flat in Godwin Road, Margate (“the property”) under an assured shorthold tenancy.

In April 2012 Mr Balog vacated the property and, with his family, moved into his mother’s home in Birmingham. Shortly afterwards his mother asked him to leave.

In May 2012 Mr Balog approached the council for housing assistance under Part 7 of the 1996 Act. He made the application on two grounds: first, the tenancy of the property had come to an end and he had been told that he had to vacate it; and second, it was not reasonable for him to continue to occupy the property because it was in a very poor state of repair.

The council thereupon provided Mr Balog with temporary accommodation while it began to make enquiries. It approached Green Knight Lettings, the letting agents for the property, and also the Environmental Health Department of Thanet District Council, the local authority for the area in which the property is situated. These enquiries suggested that Mr Balog had not been asked to leave the property as he claimed and further, that the issue of the state of repair of the property had been raised over a year before and that a good deal of remedial work had been carried out over the following months. Any deficiencies which remained did not render the property uninhabitable and, moreover, were likely to be addressed in the near future.

By letter dated 15 June 2012, the council notified Mr Balog of its decision as it was bound to do under s.184 of the 1996 Act. That letter explained that its enquiries suggested that any outstanding repairs were of a minor nature and that Mr Balog had never been asked to leave. Further, the rental account showed that he was now £715.94 in arrears. The letter continued that the council considered that he had not acted in good faith and that he had become homeless intentionally.

On 27 June 2012 Shelter wrote to the council explaining that Mr Balog had approached it asking for advice and assistance in connection with his homelessness application. It requested a review under s.202 of the 1996 Act on the basis that Mr Balog had been told by his landlord that his tenancy would not be renewed. By further communication dated 6 September 2012, Shelter amplified the grounds upon which the review was sought. It explained that Mr Balog’s daughter suffered from asthma and that the state of the property was adversely affecting her health; that the property was badly in need of repair; that Mr Balog’s neighbours were guilty of anti-social behaviour; and that Mr Balog had experienced thefts. It also asserted once again that Mr Balog had been told that his tenancy would not be renewed. As for the arrears, the letter explained that Mr Balog thought that his housing benefit was covering the rent, and that he did not appreciate that there was any shortfall, still less a shortfall for which he was responsible. In neither letter did Shelter suggest that the property was not affordable.

In early October 2012 Mr Balog attended a meeting with a council officer at which a breakdown of Mr Balog’s income and expenditure was produced for the periods for which he was unemployed. This showed his income comprised child benefit, tax credit and jobseekers’ allowance and amounted to £920 per month. His expenditure included sums spent on water rates, gas, electricity, housekeeping, TV licence, telephone and school meals and amounted to £946.18 per month, leaving a monthly deficit of £26.18.

On 9 October 2012 an independent Review Officer employed by the council wrote to Mr Balog informing him that he considered that there had been an irregularity or deficiency in the original decision because it had failed to consider the issue of affordability. He continued that he was nevertheless minded to uphold that decision for reasons which he then set out. He invited Mr Balog to comment upon those reasons if he wished to do so. Mr Balog did not, however, respond to that invitation and by letter of 12 October 2012, Shelter wrote to confirm it was no longer assisting Mr Balog with his application.

On 29 October 2012 the council issued its review decision. The Review Officer set out the various matters to which he had had regard, including the 1996 Act, the statutory guidance, the original application, the various submissions made on Mr Balog’s behalf by Shelter and the information provided by Thanet District Council and Green Knight Lettings. He then addressed in detail the specific grounds upon which Mr Balog had relied. He also considered affordability in these terms:

In summary, the Review Officer considered that Mr Balog could afford to pay the rental shortfall despite being unemployed and that the property was therefore affordable.

The extent of the duty owed by a housing authority to homeless persons who are in priority need depends upon whether they became homeless intentionally or unintentionally. In this regard, s.191 of the 1996 Act reads:

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 continue to occupy.

For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.

A person shall be treated as becoming homeless intentionally if:

The Secretary of State, in exercise of the power conferred by ss.177(3)(b) and 210(2)(b) of the 1996 Act, has made the Homelessness (Suitability of Accommodation) Order 1996 (SI 1996 No. 3204) (“the 1996 Order”) which specifies various matters which must be taken into account in assessing whether it would have been reasonable for a person to continue to occupy particular accommodation. Those matters are the financial resources available to that person, including any remuneration, social security benefits and financial assistance; the costs in respect of the accommodation, including payments by way of rent, service charges and council tax; any payments which the person is required to make to support a spouse or former spouse or by way of child support; and other reasonable living expenses.

A housing authority is also bound by s.182 of the 1996 Act to have regard to such guidance as may from time to time be given by the Secretary of State. In July 2006 the Secretary of State issued the Homelessness Code of Guidance for Local Authorities (“the 2006 Guidance”), which addresses various aspects of the statutory scheme.

Chapter 8 contains guidance on how to determine whether a person is homeless or threatened with homelessness for the purposes of Part 7 of the 1996 Act. A person who has accommodation is to be treated as homeless where it would not be reasonable for him or her to continue to occupy that accommodation and, in that connection, paragraph 8.29 explains that one factor which must be considered in all cases is affordability. Reference is then made to the 1996 Order and various matters which must be taken into account.

Intentional homelessness is addressed in Chapter 11. It explains that generally it is not for applicants to prove their case and, at paragraph 11.22 and in like fashion to paragraph 8.29, that an applicant cannot be treated as intentionally homeless unless he has ceased to occupy accommodation which it would have been reasonable for him to continue to occupy. Reference is then made back to Chapter 8 where, it is said, guidance on the phrase “reasonable to continue to occupy” is provided. That is the guidance to which I have referred immediately above.

Chapter 17 contains general guidance on the factors to be taken into account in determining the suitability of accommodation and applies in respect of all of the powers and duties of a housing authority to secure accommodation for an applicant under Part 7. It explains that an assessment of suitability requires a consideration of all aspects of the accommodation, including affordability. In considering affordability, the housing authority must take into account the various matters set out in the 1996 Order. It then says this about an applicant’s residual income after meeting the costs of the accommodation:

This particular aspect of the guidance therefore contains two elements: first, a recommendation that housing authorities regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the apposite level of income support or income-based jobseekers’ allowance; and second, a reminder that housing authorities must consider whether the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials.

More generally, a decision by a housing authority must, of course, be adequately reasoned so that a person adversely affected by that decision can understand how and why it has been reached and so form a view as to whether to challenge it on a point of law.

The reasons for a decision may, however, be stated relatively briefly, depending, of course, upon the particular issues under consideration. Moreover, the reasons do not need to detail every aspect of the decision making process. Further, it must be remembered that, as Schiemann LJ said in R v Brent London Borough Council, ex p. Baruwa (1997) 29 HLR 915 at 929, the law gives decision makers a certain latitude in how they express themselves and recognises that not all those taking decisions find it easy in the time available to express themselves with judicial exactitude.

The need to adopt a realistic and practical approach to any consideration of a review decision was emphasised by Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413 at 428. He put it this way at [47]:

A little later, at [50], he said this:

Finally, an appeal under s.204 of the 1996 Act is only on a point of law. On a second appeal such as this, the primary question is normally not whether the tribunal deciding the first appeal was right but whether the original decision was one that the decision maker was entitled to reach: Danesh v Kensington and Chelsea Royal LBC [2006] EWCA Civ 1404, [2007] 1 WLR 69, per Neuberger LJ at [30].

Mr Balog originally appealed to the county court on eight grounds but ultimately only pursued the three of them to which I have referred. In addressing the review decision, the Recorder observed that it had to be read in its entirety and noted that no specific mention had been made of the 2006 Guidance in relation to affordability:

The Recorder then observed that there was, to her mind, nothing in the decision to indicate that the council had considered Mr Balog’s residual income by reference to income-based jobseekers’ allowance:

This was an issue to which the Recorder returned later in her judgment where she set out her detailed reasons for reaching her conclusion that the council had failed to take into account the relevant provisions of the 2006 Guidance. This is the heart of her decision and so I should set out the relevant paragraphs in full:

It is apparent that the two factors which the Recorder considered particularly significant were first, the absence of any express reference to paragraph 17.40 of the guidance; and second, what she perceived to be the failure by the Review Officer to consider whether payment of the shortfall would have left Mr Balog with less than the level of income-based jobseekers’ allowance.

Having found in favour of Mr Balog on the first ground of appeal, the Recorder then turned to the other two grounds, namely whether the review decision was adequately reasoned and whether the decision was irrational. She rejected both of these grounds in one short paragraph at the end of her judgment.

Upon this appeal Mr Baker has appeared with Mr McCafferty on behalf of the council. He submits the council asked itself the right question, namely whether the property was affordable, and assembled the necessary material to answer it. Particular consideration was given to the income and expenditure analysis in assessing whether, having paid the rental shortfall, Mr Balog would have been able to afford the basic amenities of life. Although it is true to say that the review decision does not in terms refer to paragraph 17.40 of the 2006 Guidance, consideration was plainly given to it, and that is enough. The Recorder fell into error in finding to the contrary.

Mr Nabi responds that the Recorder came to the right conclusion on the first issue. He says that it is striking that the review decision refers to many specific paragraphs of the July 2006 Guidance but makes no mention of paragraph 17.40. Further, the decision contains no consideration of whether the residual income left to Mr Balog after paying the rental shortfall would have been less than the level of income support or income-based jobseekers’ allowance. This critical question was, he says, never addressed. The irresistible inference is that the Review Officer overlooked this very important aspect of the statutory guidance.

For much the same reasons, Mr Nabi submits the Recorder fell into error on the second issue. He argues that the review decision not only makes no reference to paragraph 17.40, but also contains no explanation as to why the recommendation it contains was disregarded. If, therefore, the Review Officer did have regard to it, the decision is deficient, and the Recorder should have so held.

Finally, and turning to the third issue, Mr Nabi submits that the benefits paid to Mr Balog represented a minimum level of income for him and his family. Payment of the rental shortfall would have left Mr Balog with a level of income nearly £70 per month less than this minimum. Moreover, the benefits paid to Mr Balog left him below the UK poverty line even before this shortfall was taken into account. In all these circumstances no housing authority acting rationally and properly directed in law could have decided that the property was affordable.

In assessing these rival submissions it is, I think, important to have in mind the context in which the review decision was made. As I have explained, Mr Balog made his application on the basis that the property was in a poor state of repair, that his tenancy had come to an end and that he and his family had been asked to leave. Mr Balog made no suggestion that he could not afford to pay the rent. Indeed he asserted that the rent was covered by his housing benefit.

The council thereupon began to make the enquiries which led it to conclude that each of the grounds upon which Mr Balog had made his application had no substance and further, that Mr Balog was liable for rental arrears amounting to in excess of £700. As it explained in its decision letter of 15 June 2012, it considered Mr Balog had not acted in good faith.

Mr Balog then approached Shelter which gave him substantial advice and assistance in formulating his request for a review in the manner I have described. The letter of 6 September 2012 set out the basis for that request at considerable length. It included details of the condition from which Mr Balog’s daughter was suffering, a room by room analysis of the property and its deficiencies, full particulars of a new complaint that Mr Balog and his family were victims of anti-social behaviour and a re-iteration of Mr Balog’s contention that he had been told that his tenancy would not be renewed and that he and his family had to vacate the property. It also asserted that Mr Balog did not appreciate that he was in arrears. Importantly, however, and despite the contents of the refusal letter, it did not suggest the property was not affordable.

The council was nevertheless alert to the issue of affordability and the Review Officer specifically raised it in his letter of 9 October 2012 in which he indicated he was minded to uphold the original decision. This letter included the two paragraphs set out at [13] above, which in due course were repeated in the review decision itself. Once again, however, it did not elicit from Mr Balog any suggestion that he disagreed or that the property was not affordable for any other reason. Moreover, by the letter of 12 October 2012, Shelter informed the council that it was no longer assisting Mr Balog.

That brings me to the letter of 29 October 2012 which contains the review decision. It is, by any objective standard, a very full letter. On its first page it lists the various sources of evidence and information which the Review Officer had considered and in that connection refers expressly to the 1996 Act and the 2006 Guidance. It then considers in detail the various reasons advanced by Shelter as to why the original decision was incorrect and, in doing so, makes reference to the particular paragraphs of the guidance which have a bearing upon them.

The letter turns to the issue of affordability in the two paragraphs set out at [13] above. It can be seen the Review Officer had taken note of the information on the income and expenditure form which had by this time been completed. The letter also explains that Mr Balog had been employed from time to time, and that his income was apparent from the wage slips he had supplied.

The Review Officer then addressed affordability by reference to first, those periods when Mr Balog was employed and second, those periods when he was not. As for the former, the letter explains that Mr Balog enjoyed a substantial increase in his income but suffered a reduction in his benefits with the result that he had to pay £180 towards his rent. This, the Review Officer thought, was a sum he could well afford in the light of his income, and on this appeal no criticism is made of that conclusion.

As for the latter, the Review Officer explained that the housing benefit covered the rent. This conclusion was plainly right because it is clear from a statement of account of the letting agents that the rent of £120 per week was covered by Mr Balog’s housing benefit of £483.28 per month.

The difficulty, such as it was, arose because there were periods when Mr Balog was unemployed but during which he was nevertheless required to pay £41.72 per month towards his rent. It is not clear how this shortfall arose but whatever the reason for it may have been, it raised the question whether this was a sum that Mr Balog could afford to pay and it was to this question that the Review Officer directed his mind in the second paragraph of the passage set out at [13] above.

In answering this question it can be seen the Review Officer gave careful consideration to whether Mr Balog could have reduced his outgoings. He noted that Mr Balog had attributed £693 to housekeeping and observed that this seemed a large amount for such a family and that he believed it could have been reduced by more effective housekeeping. This, he thought, would have allowed Mr Balog to cover both the rental shortfall and the deficit of £26.18 to which I have referred at [11] above. Further, it was a reduction that Mr Balog could have made without sacrificing essential amenities.

The critical question for this court is whether this particular aspect of the reasoning of the Review Officer betrays a failure to have regard to paragraph 17.40 of the 2006 Guidance. I have come to the conclusion it does not, for all of the following reasons.

First, the issue of affordability is one which the Review Officer took for himself. He identified the failure of the original decision to consider whether Mr Balog could afford to remain in the property and so it is reasonable to infer this is a question which he had at the forefront of his mind throughout his review.

Second, in reaching his decision the Review Officer plainly had regard to the statutory guidance, at least in general terms. It is referred to at the outset of the decision letter and specific paragraphs of it are identified in those sections of the letter which address the particular grounds upon which the review was sought.

Third, it is true that no express reference is made to paragraph 17.40, however I do not consider this at all surprising bearing in mind that affordability was not a matter which had ever been raised by Mr Balog or on his behalf. In my judgment Review Officers are not obliged to identify each and every paragraph of the guidance which bears upon the decision they have to make. That would be to impose upon them a wholly unreasonable and unnecessary burden. I do not therefore accept that the absence of any express reference to this paragraph indicates that the Review Officer failed to have regard to the guidance it contains.

Fourth, it is accepted that the Review Officer considered those matters which he was required by the 1996 Order to take into account. Moreover, as I have sought to explain, he analysed with great care the circumstances in which Mr Balog would be required to make a contribution to the cost of housing and the impact this would have on his household. He was keenly aware that from time to time Mr Balog would have to pay a sum of around £42 per month towards the rent and that he would have to do so whilst he was unemployed. He was also aware that Mr Balog’s expenditure, apart from rent, already exceeded his income by about £26. This inevitably meant that Mr Balog would be left with a residual income which would be less than the aggregate of all the benefits, credits and allowances he was receiving. Recognising the potential hardship this would cause, the Review Officer then went on to consider whether this would deprive Mr Balog and his family of the basic essentials. In all the circumstances of this particular case, he found that it would not. As he put it, they would not have to sacrifice essential amenities. In my judgment this exercise involved precisely the kind of analysis which is envisaged by paragraph 17.40 of the statutory guidance.

Finally, I accept that there is no express reference in the review decision to the recommendation of the Secretary of State that housing authorities should regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the applicable level of income support or income-based jobseekers’ allowance. It is, however, evident from the way the Review Officer approached the issue of affordability that he was concerned that Mr Balog should not be required to pay any larger sum than he could manage. He took into account the amount that Mr Balog would have to pay, the circumstances in which it would have to be paid and the sums Mr Balog had attributed to housekeeping, and he decided this was a sum Mr Balog could indeed afford. The Review Officer conducted a careful and considered examination and I believe that to criticise him for not including an express reference to the Secretary of State’s recommendation would require us to disregard the warning given by Schiemann LJ in the Baruwa case and to subject his decision to the kind of nit-picking analysis deprecated by Lord Neuberger in the Holmes-Moorhouse case.

For all these reasons I find myself in disagreement with the Recorder. I believe that the Review Officer did have adequate regard to the statutory guidance.

I can deal with the second and third issues relatively shortly. I have explained the reasoning of the Review Officer and, for the reasons I have given, I believe it was as detailed as it needed to be. It explained the matters he had taken into account, the circumstances in which a rental shortfall would arise and why he considered that it would be reasonable for Mr Balog to pay it. This was sufficient to enable Mr Balog and those advising him to understand how and why the Review Officer arrived at his decision.

So I come to the final issue, whether the decision was irrational. Here it must be remembered that Review Officers have a great deal of experience and have been charged with making decisions of the kind in issue, a task to which they bring their expert knowledge. They are the persons best placed to make an assessment of affordability. Accordingly, as Mr Nabi accepted, a decision will only be quashed on normal judicial review grounds.

Nevertheless, Mr Nabi sought to persuade us that the decision was irrational because Mr Balog was already below the poverty line and for that purpose he referred us to a survey called Households Below Average Income or HBAI. This was not, however, referred to before the Recorder; nor was it relied on at the time of the review decision. In my judgment it is far too late to introduce it now. The statutory guidance is precisely that. It is something to which a Review Officer must have regard but it is something from which he can depart with good reason. I am entirely satisfied that the Review Officer having approached the matter as he did, there can be no suggestion that he has acted perversely or failed to reach a rational conclusion on relevant grounds.

For all these reasons I would allow the appeal.

I agree.

I also agree.