Best, R (On the Application Of) v Oxford City Council

This is an application for Judicial Review of

Ms Best’s case is that the only way in which the Council could discharge their duty to her under s.193 of the 1996 Act would be to provide her and her children with accommodation which is either free, or at a peppercorn rent. That accommodation would also have to be located somewhere that minimizes the risk of domestic violence to Ms Best or the children from their father, her former partner, Nicholas Christian. Mr Christian has suffered mental health problems and has been made the subject of County Court injunctions under the Family Law Act 1996 on several occasions. Alternatively, the decision that she could afford to pay rent of more than £200 per week and that she had made herself intentionally homeless by failing to pay that rent was Wednesbury unreasonable and the Council erred in law in reaching that decision.

Decision B is the subject of an appeal to the County Court on a point of law under s.204 of the 1996 Act. If that appeal were successful, as Ms Bretherton submits is almost certain on technical grounds, the County Court would have a number of options open to it, the most likely being to remit the matter to the Council for reconsideration, so that the s.202 review process would have to begin afresh. However, remission of the matter would not resolve the issue at the heart of Ms Best’s complaint, which is whether the Council can provide her with accommodation in Oxford and charge her any, or any substantial, rent for its occupation.

Mr Bhose raised the preliminary objection that the application for judicial review was an abuse of the process of the Court. He submitted that Decision B, which was made after Ms Best had been given permission to bring a claim for judicial review of Decision A, superseded Decision A. However, despite being invited by the Council to amend her claim or give it up, Ms Best had maintained her challenge to Decision A, and only that decision, whilst failing to make any challenge to Decision B in these proceedings. Mr Bhose submitted that in the absence of any pleaded challenge to Decision B, it was difficult to understand on what basis the claim for judicial review could proceed before this Court. There had already been a statutory review of Decision A and it had failed. Moreover, the existence of the appeal to the County Court against Decision B (which has been adjourned pending determination of this application) meant that Ms Best had not exhausted all available alternative remedies that were and are open to her in respect of Decision B.

In answer to this, Ms Bretherton submitted that, notwithstanding the making of Decision B, Decision A was not superseded by it, and it was proper to maintain a challenge to Decision A alone. Decision B is not a free-standing decision but a review of an earlier decision, albeit a full merits review which can take into account matters which arose since the original decision. If the County Court set aside Decision B and remitted the matter to the Council for reconsideration, then there would have to be a fresh review of Decision A. This means that Decision A cannot have ceased to exist on the making of Decision B, and therefore it would still be susceptible to judicial review regardless of the existence of Decision B. Although Parliament enacted the review and appeal scheme in an effort to relieve the pressure on the Administrative Court, it did not remove the jurisdiction of the Court to grant judicial review in housing cases. If this Court reached the conclusion that Decision A should be set aside, then there would be no longer any decision susceptible of review under the s.202 process, and Decision B would fall with Decision A.

The second point made by Ms Bretherton was that in any event, the claim for judicial review was never confined to Decision A, since complaint is made about an ongoing breach of statutory duty to provide suitable accommodation and the County Court cannot resolve that matter. If, for example, the County Court were to accept the argument that there had been procedural failings leading to Decision B, then it would allow the appeal, set aside Decision B, and remit the matter to the Council for reconsideration. However, Ms Best would be no nearer resolving the question of whether the accommodation with which she had been provided was suitable, and the cycle of decisions and challenges to them (which already has a lengthy history) would continue. Ms Bretherton also pointed to the fact that after Decision B was made, the Council had applied for this matter to be adjourned pending determination of the appeal by the County Court, and had sought to discharge the interim relief granted to Ms Best by Mr Justice Stadlen: on each occasion the Council had raised similar objections, but neither application succeeded.

However, and without prejudice to her primary position, on the second day of the hearing Ms Bretherton applied for permission to amend the claim to challenge Decision B, on essentially the same grounds as the existing challenge to Decision A, but with the addition of a specific point about the risk of violence from Mr Christian. Mr Bhose accepted, realistically, that as the proposed amendment raised nothing new and there was no prejudice to his client, it would be appropriate in these circumstances to grant permission to amend, and I did so, reserving any issue on costs for later submission.

In the light of the sensible and pragmatic approach adopted by both Counsel, it is unnecessary for me to rule on the preliminary objection raised by Mr Bhose. Although the course taken by Ms Best is an unorthodox one, and initially seemed to me to be inappropriate, it is generally preferable for the Court to deal with an application on its merits, and there is force in Ms Bretherton’s submission that her client would achieve no certainty as to her position even if she persuaded the County Court to set aside Decision B on a technicality. However, since the point may be of wider interest, and was fully argued before me, I should indicate that I prefer Mr Bhose’s analysis of the effect of a review under s.202 of the 1996 Act. It seems clear from s.203 and from the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, particularly Regulation 8, that the decision of the reviewer is a separate decision that supersedes the original decision.

If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, he may nevertheless reach the same conclusion as the original decision-maker, provided that he follows the procedures set out in Regulation 8. These procedures are designed to ensure that the applicant is given fair warning of the grounds on which an adverse decision may be made on review, and an opportunity to make submissions about them before the reviewer’s decision is made. In London Borough of Lambeth v Johnston [2008] EWCA Civ 690, the Court of Appeal held that the reviewer should treat Regulation 8(2) as applicable not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.

The Regulation 8(2) process must be followed even if the original decision maker could not be criticized in any way for failing to take into account the important information – for example, if he did not know about it, or it relates to something that happened after the decision under review was made.

It follows from this that the decision made by the reviewer to confirm the decision under review is a separate decision on the merits, which may be reached for entirely different reasons and after considering fresh submissions. This appears to be confirmed by the analysis in paragraph 48 of the judgment in London Borough of Lambeth v Johnston. Although the review decision is not “free-standing”, as it is part of the statutory review process, nevertheless, once the review decision is made, that is the decision on which the housing authority will act, and the original decision ceases to have any operative effect (though it does not cease to exist, and may be reviewed again under the s.202 process if the review decision is set aside by the County Court).

If Ms Bretherton’s argument to the contrary were right, it would lead to some quite startling conclusions. For example, the original decision-maker could reach a decision that was flawed, e.g. because of a failure to take into account a significant aspect of the case; the reviewer, having followed the procedure under Regulation 8(2) to the letter, could reach the same conclusion after taking that matter into account, and the second decision may not be susceptible to appeal or judicial review because it has been arrived at fairly and is within the range of decisions reasonably open to the reviewer on the information before him. Yet on Ms Bretherton’s analysis, the aggrieved applicant would still be entitled to ask this Court to quash the original flawed decision, thereby getting round the fair review decision and starting the decision-making process afresh. It is no answer that the Court would be unlikely to grant judicial review of the earlier decision in those circumstances, and that the requirement for permission would act as a filter for unmeritorious claims. If the review decision is unchallengeable, the statutory review process has served its purpose, and there can be no legitimate basis for having a second bite of the cherry by coming to this Court. If the review decision is flawed, then that is the decision that should be the focus of complaint.

In my judgment, the effect of the review is to substitute the decision of the reviewer for that of the original decision taker, even if the reviewer decides to uphold the original decision on exactly the same grounds. Consequently the appropriate course for the aggrieved applicant to take in a case where the review decision has gone against him would be to appeal to the County Court or (if appropriate) to seek judicial review of the review decision, or both, depending on the circumstances of the particular case. It would be inappropriate in those circumstances to pursue an application for judicial review of the initial decision, though it may be appropriate to amend the claim for judicial review to challenge the review decision. Even if my analysis is incorrect, and the original decision is not superseded by the decision on review, I consider it would still be inappropriate to maintain a challenge to that decision without also seeking to challenge the decision taken on review, which is what Ms Best has belatedly done.

There was more force in Ms Bretherton’s second submission in answer to Mr Bhose’s objection, namely, that her client’s complaint is wider in scope than a challenge to a particular decision or decisions of the Council. If no reasonable housing authority properly informed of the relevant information could discharge their statutory duty to Ms Best other than by providing her with rent-free accommodation, then it does not matter how many decisions are made, on review or otherwise, that she has made herself intentionally homeless by failing to pay the rent on whatever accommodation the Council have provided for her. If Ms Best’s argument is right, then it does seem unlikely that an appeal to the County Court would provide Ms Best with the remedy that she seeks.

I turn, therefore, to the substantive merits of this application.

Part 7 of the 1996 Act sets out a self-contained statutory code. Section 175 defines “homelessness”. By section 175(3) a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. By section 177(1) it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him or against a person who normally resides with him as a member of his family. By section 177(2), in determining whether it would be, or would have been reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.

The question whether it would be “reasonable” for someone to continue to occupy accommodation is not the same as the question whether that accommodation is “suitable”. The answer to each question will depend on the circumstances of each particular case, and whereas they will often coincide, it is not inevitable. Of course if the living conditions are unfit for human habitation, the accommodation will be unsuitable and it would be unreasonable to expect someone to live there. On the other hand, it may be “reasonable” in some circumstances for a person to continue to live in accommodation that would be regarded as “unsuitable” because it is overcrowded; for example, if he and his family are living in a small flat in a tower block in an inner city area where affordable accommodation of an appropriate size is scarce or unavailable.

Section 184 sets out the duty of the local housing authority if they have reason to believe that an applicant may be homeless or threatened with homelessness. The authority must make such inquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so, whether any duty and if so what duty is owed to him under Part 7 of the 1996 Act. On completing their inquiries, the local housing authority must notify the applicant of the decision and, to the extent that any issue is decided against his interests, inform him of the reasons for that decision. Section 188 sets out the interim duty to accommodate an applicant in a case of apparent priority need, pending a decision as to the duty, if any, owed to him under Part 7. Ms Best, being a person with whom dependent children reside, is a person with a priority need, see Section 189(1)(b) of the 1996 Act. If the local housing authority reaches a decision that is adverse to the applicant, then there is no longer a statutory obligation to house that person pending review, but there is a discretion to do so.

Having made the necessary inquiries, on 19^th February 2008 the Council reached the decision in Ms Best’s case that they owed her a duty under s.193 of the 1996 Act. This provides, so far as is relevant:

It is common ground that once the local housing authority have concluded that an applicant satisfies the criteria in s.193(1) (three positive and one negative), they are not entitled to revisit their decision save on grounds of fraud or fundamental mistake. Once the housing authority accept they are under a s.193 duty, as the Council did in the present case, they cannot change their mind even if the circumstances subsequently change (e.g. if the applicant ceases to be a person with priority need).

The duty of the Council is set out in section 206 of the 1996 Act. Essentially they must provide the applicant with “suitable accommodation” or secure that some other person does so. Section 206(2) provides that

“A local housing authority may require a person in relation to whom they are discharging such functions

(i)

to pay such reasonable charges as they may determine in respect of accommodation which they secure for his occupation….

Miss Bretherton stresses, and I accept, that the Council are not obliged to require an applicant to pay for the accommodation that it provides. They have a discretion to require Ms Best to pay reasonable charges in respect of the accommodation. However, in practice the discretion is usually exercised in favour of charging a reasonable market rent by reference to similar accommodation in that locality.

It follows from the statutory provisions to which I have referred that the duty to provide suitable accommodation (with or without charging rent) is an ongoing duty that can only be brought to an end by the fulfilment of one of the statutory grounds set out in Section 193, which include the situation where the applicant makes himself intentionally homeless from the accommodation provided. Thus the question whether the accommodation is “suitable” has to be addressed before there can be any determination of whether Ms Best has made herself intentionally homeless. If the accommodation is not suitable, then s.193(6)(b) cannot be relied upon even if the applicant fails to pay the rent.

Suitability of accommodation is governed by s.210 of the 1996 and the Homelessness (Suitability of Accommodation) Order 1996 (SI 1996 No 3204) (“the Order”). Regulation 2 of the Order provides that in determining whether accommodation is suitable for a person there shall be taken into account whether or not the accommodation is affordable for that person, and, in particular, the following matters:

Although the local housing authority have a discretion whether or not to charge rent for the accommodation they provide, the nature and terms of the Order demonstrate that Parliament has envisaged that they will probably wish to do so. Consequently there must be a proper inquiry into the homeless person’s financial status and consideration of affordability before a determination is made that particular accommodation is suitable. In providing for the “financial resources available” to that person to be taken into account, the Order permits the housing authority to have regard not only to the applicant’s own resources, but also to resources to which the applicant has access.

Important though affordability is, it is not the only relevant matter to take into consideration when judging suitability. As Lord Hoffmann observed in a case decided under the previous housing legislation, R v Brent LBC, ex parte Awua [1996] 1 AC 55, at 72, suitability is primarily a matter of space and arrangement, though other matters, such as whether the occupant can afford the rent, may also be material. Those observations are still of relevance to the current legislation.

In R v Newham LBC, ex parte Sacupima (2001) 33 HLR 2, the Court of Appeal stated that there was no doubt that the question of whether or not the accommodation is suitable requires an assessment of all the qualities of the accommodation in the light of the needs and requirements of the homeless person and his or her family. Location may be relevant. In paragraph 29, Latham LJ referred to an earlier decision, R v Haringey LBC, ex parte Karaman (1996) 29 HLR 366, in which the court had quashed as Wednesbury unreasonable a decision by a housing authority to offer a woman accommodation in an area in which she was terrified to live because of her fear that her violent and abusive husband would easily find her and be able to attack her.

The Secretary of State has issued a Code of Guidance for local housing authorities which includes, in Chapter 17, detailed guidance on the factors to be taken into account when determining the suitability of accommodation secured under the homelessness legislation. Although that chapter is specifically directed towards temporary accommodation, the guidance applies with equal force to permanent accommodation. It must be borne in mind that it is often the practice of a local authority, after they have accepted a duty under s.193 of the 1996 Act, to continue to house an applicant in the accommodation initially provided under s.188(3). This frequently makes sense because it causes minimum disruption to the applicant. It is what the Council did in the present case.

Paragraph 17.6 of Chapter 17 includes the following passage:

“Any risk of violence or racial harassment in a particular locality must also be taken into account. Where domestic violence is involved and the applicant is not able to stay in the current home, housing authorities may need to consider the need for alternative accommodation whose location can be kept a secret and which has security measures and staffing to protect the occupants.”

As the duty to provide suitable accommodation is a continuing one, the question of suitability must be addressed at the time when the accommodation is provided, and presumably reconsidered from time to time to take into account any material changes to the needs and circumstances of the applicant and his or her dependents.

Finally, Section 191(1) of the 1996 Act defines what is meant by becoming homeless intentionally:

“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.”

The classic example of a situation in which someone makes himself homeless intentionally is where he is evicted from the property provided to him by the Local Authority on account of his failure to pay the rent or because of anti-social behaviour.

Before I set out a brief summary of the factual background, I should note that Ms Best’s account of events has to be treated with some degree of caution. In Decision B the review officer, Mr O’Malley, made it clear that he regarded Ms Best as untruthful, evasive and wholly unreliable. Some aspects of her evidence are challenged by the Council, and others beg a lot of questions which are, as yet, without any satisfactory answer. For reasons that will become apparent later in this judgment I am satisfied that Mr O’Malley’s assessment of Ms Best, including his adverse findings as to her credibility, is one that a reasonable review officer in his position was entitled to reach on the material before him. Therefore, the history set out below is largely based on what is common ground or shown in the documents, and in stating Ms Best’s version of the facts I should make it clear that the Court is not necessarily accepting it as accurate.

As a child, Ms Best lived at 24 Strawberry Path, Oxford. This was a council maisonette that was later purchased in the name of Ms Best and her late father under the statutory “right to buy” scheme. According to Ms Best’s First Witness Statement, when her father passed away, the property at Strawberry Path was left in his Will to her and her three siblings. The Will (supposedly executed on a “do it yourself” form from WH Smith) was never registered, and Ms Best says that she is unable to locate a copy of it. She has, however, produced a letter from a Mr and Mrs Barrett who claim to have been the “executors” of that Will. There is no evidence that the Barretts sought a grant of probate, or took any steps to execute the testator’s alleged wish that on his death the property be sold and the proceeds divided up equally between his children. Strawberry Path was apparently rented out for at least 2 years after the death of Ms Best’s father.

It is common ground that Ms Best sold Strawberry Path in November 1999. She says that she sold the property with the consent of her siblings, and put all the proceeds of sale towards the purchase of 4 Furlong Close. This version of events, which is maintained in her witness statement, is disputed by the Council on the basis that there is cogent independent evidence that Furlong Close was purchased over a year before the sale of Strawberry Path. Mr O’Malley’s witness statement refers not only to documents from the Land Registry, but to council tax records showing that Furlong Close was purchased on 21^st September 1998.

Moreover, according to Mr O’Malley, the Council’s housing benefit records show that Ms Best’s conveyancing solicitors recorded in July 1998 that she wanted to purchase Furlong Close for £74,000 as a private purchaser, that she already had most of the money, and that she only wanted the Halifax to arrange a secured personal loan to make up the balance of £16,000. However no mortgage was ever registered against the property (the loan from the Halifax was apparently secured by a charge over a different property). That loan was paid off in October 1999, a month before Strawberry Path was sold. I have seen no explanation from Ms Best or those representing her for these apparent discrepancies. There is no evidence as to any alternative source of the funds used to purchase Furlong Close (though at one point it was suggested in correspondence that Ms Best had obtained a bridging loan) or as to what became of the proceeds of sale of Strawberry Path if they were not used for that purpose, or as to the source of the money that was used to repay the Halifax loan, presumably with accumulated interest. Given the nature of the documentation upon which Mr O’Malley relies to show that Strawberry Path was sold after Furlong Close was purchased, there is enough information on this aspect of the case alone to cast considerable doubt on Ms Best’s credibility.

Ms Best claims that Mr Christian made a financial contribution towards the purchase of 4 Furlong Close. She told the Council that he contributed £12,000 (which, on the figures I have already referred to, was less than 1/6th of the purchase price). However, the property was conveyed into Ms Best’s sole name. Ms Best has given more than one explanation of why this was so, and those explanations are inconsistent. It also appears that Ms Best has provided no documentary evidence of how much Mr Christian contributed towards the purchase.

Ms Best and Mr Christian have two sons, the elder of whom is now 15 years old and studying for his GCSEs at a school outside Oxford. His brother is now 8. The couple and their children lived together at 4 Furlong Close, but in early 2004, when the younger child was only 3 years old, the relationship broke down. The Council has not disputed that historically Ms Best has been the victim of domestic violence at the hands of Mr Christian. There is evidence that he has made threats to kill Ms Best and the children on numerous occasions: indeed on one such occasion towards the end of 2007 it is alleged that he tried to run over one of the children in his car.

As I have already indicated, Mr Christian has already been made the subject of several non-molestation orders in the County Court. The latest one is dated 20^th December 2007 and followed the attempted running-down incident. Ms Best states in her witness statement that the problems with Mr Christian are ongoing. I was told by Ms Bretherton on instructions at the hearing that Mr Christian was on bail on a charge of harassment, and that he had been ejected from the school attended by one of the children on the previous day. I am prepared to assume for the purpose of this application that this information is truthful.

Ms Best first made an application to the Council for assistance in finding alternative accommodation in or around February 2004. From March 2004 until October 2005, when an order for possession was executed in respect of arrears of rent, Ms Best lived in what has been described as “first stage” accommodation provided for her by the Council at 25-27 Fairacres Road, apart from a short period when she went to live in a Refuge. After she was evicted from Fairacres Road, Ms Best went to live with her mother at 3 Marjoram Close, but that was never intended as a long-term arrangement, and the Council appear to have accepted in the past that it did not meet the needs of the family because of overcrowding.

Meanwhile, No.4 Furlong Close was sold in December 2004 for £168,000. According to Ms Best, 50% of the net proceeds of sale were paid to Mr Christian, who by now had moved away from Oxford to Abingdon, where it appears he still lives. There is no evidence even on Ms Best’s version of events that Mr Christian provided 50% of the original purchase price of 4 Furlong Close, but in paragraph 36 of Ms Best’s witness statement she says that when the house was sold “Mr Christian and I split the equity in half.” There has been no clear explanation of why she agreed to pay him 50% of the sale proceeds, although there are suggestions in the correspondence that she did so because she was afraid of him, or he threatened her. Given the history of their relationship that is not implausible. In January 2005, the 50% earmarked for Mr Christian was in a dedicated separate account pending the receipt by Ms Best’s then solicitor of certain further information from him. Presumably at some stage thereafter, it was released to Mr Christian, though there is no direct evidence of this.

The remaining 50% was split four ways between Ms Best and her siblings in order to divide up, albeit belatedly, the alleged inheritance from their father. There is a solicitor’s letter to Ms Best dated 6^th January 2005 which describes the issue of cheques in favour of her siblings, and records an instruction from Ms Best to the solicitors to pay other (unspecified) debts out of Ms Best’s retained balance. There is also evidence that in February 2005 a sum of just over £9,000 was paid to the Council in respect of the arrears of rent at Fairacres Road, in satisfaction of a court order. A letter from Ms Best’s current solicitors to the Council dated 14^th July 2008 sets out her explanation of what the other debts paid out of the balance of her share of the proceeds of sale of Furlong Close were: I refer to that explanation later in this judgment.

At all material times since her relationship with Mr Christian ended, Ms Best has been in receipt of Income Support and certain other state benefits. In 2004 Ms Best made the first of a series of (so far) unsuccessful applications for Housing Benefit. Housing Benefit, as its name suggests, is a financial contribution towards the cost of accommodation for those on low incomes. A person with more than £16,000 capital available cannot claim housing benefit: see Regulation 43 of the Housing Benefits Regulations 2006 (SI 2006/213). If the claimant has less than £16,000, a “sliding scale” is used to calculate the level of benefit payable, depending on his income, although the amount of income should be disregarded completely if the claimant is on income support.

Regulation 49 treats a claimant as possessing capital of which he or she has deprived himself for the purpose of securing entitlement to Housing Benefit or increasing the amount of that benefit. However, under the “diminishing notional capital rule” (Regulation 50) the amount of this notional capital is reduced over time, so that eventually the claimant will be entitled to make a fresh claim.

In general terms, one would expect a person who qualifies for Income Support to qualify also for Housing Benefit, but the two regimes are different. It is not the case that someone on Income Support is automatically entitled to Housing Benefit. The claimant still needs to provide the Housing Benefit office with evidence to satisfy them that he qualifies, and to enable them to calculate the correct amount of benefit to be paid.

In August 2004 Ms Best’s claim for Housing Benefit was rejected on account of Ms Best’s failure to supply information. She subsequently provided some further information, but not the information requested about the sale of Furlong Close (which was then on the market), and in consequence her claim was cancelled on 28^th October 2004. Furlong Close was sold 2 months later. Ms Best appealed against the decision to refuse her Housing Benefit. On 9^th September 2005, the independent Housing Benefit Appeal Tribunal ruled that “the Local Authority had every reason to decide that Miss Best did not qualify for rent rebate from 21^st February 2005 – this is because her assessed capital is in excess of the £16,000 ceiling for Housing Benefit.” Accordingly the Appeal Tribunal reached the conclusion that Ms Best did not qualify for Housing Benefit because her assessed capital was in excess of the statutory ceiling.

It would appear that the claim for Housing Benefit was either renewed or was deemed to have revived after a certain period (in accordance with the rules on deemed disposal of notional capital). In August 2006, Ms Best’s solicitors were informed that the Housing Benefits office still needed to see details of her income, capital and information about her savings, including PEPs and ISAs, in order to ensure correct entitlement to benefit. They also asked for evidence of, amongst other matters, how 4 Furlong Close was purchased, how Mr Christian raised the money to contribute his share, and evidence that Ms Best was legally obliged to pay him 50% of the sale proceeds. Ms Best failed to provide the requested information and evidence. She maintains that she is unable to do so.

In April 2007, in response to a fresh application by Ms Best for assistance in finding accommodation, the Council decided that Ms Best had made herself intentionally homeless by failing to pay the rent in respect of Fairacres Road. Ms Best invoked her right to have that decision reviewed. On 23^rd July 2007 the review officer (Mr O’Malley) upheld that decision. Ms Best appealed to the County Court. That appeal was withdrawn on 6^th September 2007 on the Council’s agreement to withdraw their review decision and to carry out a fresh statutory review, and undertaking to accommodate Ms Best pursuant to s.188(3) of the 1996 Act pending that review.

From 16^th April 2007 until 8^th April 2008, Ms Best and the children lived at 59 Marlborough Road, Oxford. Initially, that accommodation was provided to them pursuant to s.188(3) of the 1996 Act, but they continued to live there for a short time after the Council accepted that they owed Ms Best a full housing duty, until Ms Best was again evicted for failure to pay arrears of rent.

Whilst Ms Best was living at Marlborough Road, she made a fresh application for Housing Benefit. On 20^th April 2007, and again on 8^th May 2007, the Council’s Housing Benefit Department requested information from Ms Best to assess that claim. On 22^nd May 2007 the application was refused because of her failure to provide the requested information. Mr O’Malley noted in his review decision of 23^rd July 2007 that Ms Best still had not provided the Housing Benefits Office with the information it required. I was told that Ms Best did not appeal against the refusal of Housing Benefit on that occasion.

On 12th December 2007, the Council made their fresh review decision under s.202 of the 1996 Act. The decision maker, again Mr O’Malley, accepted that it was unreasonable for Ms Best to continue to occupy 4 Furlong Close because of domestic violence from Mr Christian. However, he concluded that Ms Best had made herself intentionally homeless in consequence of selling Strawberry Path, and that no duty arose under s.193 of the 1996 Act. Ms Best appealed to the County Court, and it was in the context of that appeal that the Council accepted on 19th February 2008 that they owed her a full housing duty pursuant to s.193 of the 1996 Act.

On 29^th February 2008 the Council informed Ms Best that unless she paid the arrears of rent on Marlborough Road (which were then in excess of £10,000) by 14^th March 2008, they would apply for warrant of eviction. On 6^th March 2008 Ms Best’s solicitor wrote to the Council stating that the duty under s.193 had not been fulfilled because the premises were unaffordable and therefore unsuitable. That was the only basis on which it was alleged that Marlborough Road was unsuitable.

On 8^th April 2008, Ms Best was evicted from Marlborough Road. On the same date, she made yet another application for housing benefit. In answer to the questions “do you or your partner work for an employer?” and “do you or your partner do any other work at all?” Ms Best ticked the boxes marked “no”. There is reference in subsequent correspondence to Ms Best seeking to appeal out of time against yet another refusal to grant her Housing Benefit, but I have not seen the grounds on which it was refused.

Following Ms Best’s eviction from Marlborough Road, there was further correspondence between the Council and Ms Best’s solicitors which culminated in Decision A, which was conveyed in a letter dated 17^th April 2008. That decision was that Ms Best had made herself intentionally homeless by not paying the rent and by not providing the information requested by the Housing Benefit team in 2007 to assess her claim for benefits. The decision letter stated “this failure to provide information was the main reason you got into rent arrears, which led to your eviction from the property.”

On 18^th April 2008, Ms Best’s solicitors requested a s.202 review, and the Council agreed to this on 21^st April 2008. Between 16^th May 2008 and 14^th July 2008 there was further correspondence between the review officer, Mr O’Malley, and Ms Best’s solicitors, to which I refer in more detail later in this judgment, and on 25^th July 2008 Mr O’Malley issued Decision B. One of the matters observed by Mr O’Malley in that Decision was that Ms Best’s bank statements showed that she was receiving payments for a part-time job at Littlemore Hospital, and that consequently her answers on the application form to the questions about work that I have quoted above, were untruthful.

On 15^th August 2008 Ms Best appealed to Oxford County Court against Decision B. On 26^th August 2008 His Honour Judge Compston ordered that appeal to be adjourned generally pending the outcome of this application.

Marlborough Road is therefore the address from which the Council asserts Ms Best made herself intentionally homeless by failing to pay the rent. Ms Best asserts that she could not afford to pay the rent, which was £219.06 per week (a figure which, on the evidence, is in keeping with the nature and location of the property). In addition there was a service charge of £15.50 per week (which Ms Best did pay) so the total weekly outlay was £234.56. At the time of her eviction from Marlborough Road the arrears of rent were £11,259.06. £1,609.92 of that sum related to the period from 16^th February 2008 to 8^th April 2008, i.e. the period during which the Council accept that they had a full housing duty under s.193 of the 1996 Act.

After Ms Best was evicted from Marlborough Road, the Council provided her with accommodation at 122 Hollow Way, which remains her current address. The charge for that accommodation is £183.75 per week. She has not paid anything towards the rent on this property either. The evidence of the Council is that as at 3^rd December 2008 the rent account was in arrears in the sum of £6378.75 and it is rising daily.

Ms Bretherton submitted that the Council were “setting Ms Best up to fail” in that they knew that she could not afford to pay the rent at Marlborough Road and, indeed, that she cannot afford to pay the rent anywhere else because she is on Income Support and cannot get Housing Benefit. Whether that is through her own fault or something for which, as Ms Bretherton contends, she is blameless because she was and is unable to provide the information that the Housing Benefits Office is insisting that she provides, is irrelevant. Once the Council had taken the decision that they owed Ms Best a full housing duty, they must live with that decision, however much they may now regret having taken it. The Council were not entitled to rely on her conduct prior to 19^th February 2008 as evidence that she had made herself intentionally homeless after that date or for any other purpose. The acceptance of the full housing duty “wiped the slate clean”.

Ms Bretherton submitted that at the time when they accepted that they owed Ms Best a full housing duty under s.193, the Council knew that Ms Best had been refused Housing Benefit the previous year on the grounds that she had failed to supply information requested by the Head of Revenues and Benefits. However, despite this knowledge, the Council accepted that Ms Best fulfilled all the statutory criteria in s.193 of the 1996 Act, and thus that she had not become homeless intentionally despite her historic failure to obtain Housing Benefit. Therefore it was no longer open to the Council to use that failure as an excuse for saying that she had made herself intentionally homeless by failing to pay rent on accommodation she could only afford if she obtained Housing Benefit.

Mr Bhose submitted that there was a fundamental flaw in Ms Bretherton’s analysis. He accepted that the Council could not revisit their decision that they owed Ms Best a full housing duty as at 19^th February 2008. Thereafter, for example, they could not make the decision that she had become intentionally homeless for the same reasons as were given in the s.202 review which was then under appeal to the County Court, i.e. by selling Strawberry Path. However, once they were under a duty to house her, the Council had to address the question of affordability at that time, and that involved a consideration of what income, assets and other financial resources she had available to her in February 2008. Therefore the Council had to make proper inquiries and reach fact-findings as to what those resources were. For those purposes it did not matter whether Ms Best had the same income, assets and other resources available before the full housing duty was accepted. There was no inhibition on the Council looking at her pattern of behaviour in the past. Nor (insofar as relevant) were they precluded from taking into consideration the conclusion that their Housing Benefits Office had reached, and the Appeal Tribunal had upheld, that Ms Best had assets of over £16,000 available to her in 2005.

Mr Bhose submitted that if Ms Bretherton’s argument was right, then, for example, a person who deliberately disposed of substantial capital to bring himself within the Housing Benefit limit, and was refused Housing Benefit because under Housing Benefit rules he was deemed still to have that capital available, would nevertheless be entitled to free accommodation from the Council on the basis that he could not afford to pay the market rent (or even a reduced rent) on any accommodation without access to Housing Benefit. The same would be true for someone who lied to the Housing Benefits office and was refused Housing Benefit for that reason. Likewise, Mr Bhose submitted, a person like Ms Best who deprived herself of the opportunity to obtain Housing Benefit because she failed to supply the requested information to the Housing Benefits office time and time again, over a period of years, would gain from her own failure to do what was necessary to obtain the benefit. As a matter of public policy it would be highly undesirable if anyone falling into those categories could insist on free housing on the grounds that they could only afford to pay if they obtained Housing Benefit.

Whilst that argument has obvious attractions, and it would be most unfortunate if the law required a local authority to grant free accommodation to someone who had deliberately deprived themselves of the means of paying for that accommodation, the public policy considerations are not a complete answer to Ms Bretherton’s argument. If the local authority know at the time of an application for housing assistance that the applicant has deprived himself of obtaining Housing Benefit, for example, by disposing of valuable assets so as to bring himself within the £16,000 ceiling, and they also know at that time that Housing Benefit is the only means by which that person could afford to pay for accommodation, then they should not be satisfied that the person has not made himself intentionally homeless (the “deliberate act” in that case being the disposal of the capital assets). Thus they should not accept a s.193 duty in the first place, because the statutory criteria would not be satisfied.

If they do accept a full duty, they may find themselves having to offer the applicant free accommodation, at least until he is entitled to make another application for Housing Benefit, because the reality is that he cannot afford to pay rent, and the historic reason for his lack of resources has ceased to be relevant. What matters is that he does not have the resources to pay rent at that time, because he cannot obtain Housing Benefit. On the other hand, once the time arises when he is able to apply again for Housing Benefit, and the earlier capital disposal ceases to be a ground for refusing it, the local housing authority would be justified in asking him to pay rent, because Housing Benefit would have become an “available resource”. If he then fails to apply for the Benefit or does not provide sufficient information to the benefits office when he is in a position to do so, the local authority may legitimately use his ongoing failure as grounds for deciding he has made himself intentionally homeless.

It seems to me as a matter of logic and common sense that if the local authority are not satisfied that someone has made themselves intentionally homeless in the light of behaviour of which they are aware at the date of the s.193 decision, they cannot use the same historic behaviour to justify a subsequent finding that the person has become intentionally homeless and brought their duty under s.193 to an end. So, for example, if the Council accepted that they were under a s.193 duty to house Ms Best in February 2008, despite the fact that she had already amassed substantial arrears of rent on the property in which she was being accommodated on a temporary basis pursuant to s.188(3), they could not lawfully treat her failure to pay the rent before 19^th February 2008 as a “deliberate act” for the purposes of s.193(6) if they then decided to house her in the same property pursuant to their duty under s.193.

However, that would not preclude them from relying on her failure to pay the rent after 19^th February 2008, provided, of course, that the accommodation provided to her was “suitable”, which would involve a decision that she could afford to pay the rent on or after 19^th February. In making that decision (on affordability) the Council would be entitled and indeed obliged to look at all relevant information about the resources then available to her, as the Order makes clear. That inquiry might involve consideration of assets that she was already known to possess, including savings and insurance policies.

If the Council had reached the view that the only way in which Ms Best could afford to pay rent on Marlborough Close or any other property in February 2008 was by obtaining Housing Benefit, and they were aware that she had failed to obtain Housing Benefit, the same principle as applies to the historic failure to pay the rent would have applied to the historic failure to obtain Housing Benefit. I use the expression “would have applied” because the Council plainly did not reach that view, and that is the main problem that Ms Bretherton faces. The real issue in this case, it seems to me, is whether the Council, through their review officer Mr O’Malley, were entitled to reach the view on the information before them that Ms Best was able to afford to pay the rent on Marlborough Close from 19^th February 2008 onwards, despite the fact that she is on Income Support and is not in receipt of Housing Benefit. If they were, the key premise of Ms Bretherton’s argument on affordability is not made out.

It is important not to mix up the question whether the applicant has made himself intentionally homeless (for the purposes of deciding whether or not to accept a full housing duty under s.193) with the issue of affordability of accommodation, which only arises in the context of addressing suitability once a full housing duty is accepted. When determining what, if any, resources are available to person to whom it owes a duty under s.193, the local authority are not only entitled to, but are obliged to have regard to any available benefits. If, at the time when the housing authority are considering offering that person a particular property, they know that the only way that he can afford to pay rent on that property is by taking steps to obtain certain benefits for which he is eligible, but he has not taken those steps, in my judgment the local authority would be entitled to regard the benefit as an “available” resource and charge rent for the accommodation by reference to how much benefit the applicant would be able to obtain if he took those steps. The fact that he has not taken those steps in the past is irrelevant, unless his previous behaviour has somehow precluded him from taking those steps at the time when the accommodation is made available under s.193 of the 1996 Act (for example, where he has disposed of capital).

That position would be the same whether it was the first application for benefit or there had been many previous applications, and regardless of the reasons why any earlier applications for benefit had failed, with this caveat. If the applicant had already been adjudged to be ineligible for benefit because he had, or was deemed to have, assets or income in excess of the statutory threshold, then in the absence of some reason to suppose that the situation had changed since the last failed application for benefit, the benefit would not be an “available resource” - though the other assets or income would or might be. Indeed on that hypothesis the premise that the only way that the person could afford to pay rent would be by obtaining the benefit, would not apply. Much would then depend on the particular factual situation pertaining to the applicant and, as I have already indicated, someone who has disposed of capital and thereby disabled himself from obtaining housing benefit for at least a specified period, may well find himself entitled to free or low-rent accommodation for at least a certain period, if a full housing duty has been accepted in the knowledge of the capital disposal.

In a case where the market rent is only affordable if Housing Benefit is obtained, then if despite taking the necessary steps to try and obtain the benefit, the applicant fails to do so, the local authority would be driven to the conclusion that the benefit is not an available resource. In such circumstances they would have to look at what other resources were available to the applicant, and this would probably result in their lowering the rent to below a market rate, or in the supply of accommodation free of charge.

In my judgment there is no reason to preclude the Council from taking into account matters occurring prior to the date on which they accepted a duty under s.193, provided that those matters are relevant to the question of suitability. For example, Ms Best’s previous behaviour could be taken into account in order to assess the credibility of her current responses to questions asked as part of the Council’s investigation into the financial resources that were available to her at the time when the full duty was accepted. Any resources that may have been available to her in the past would be of relevance, if there were reason to suppose that they were still available.

The fact that historic information may be of relevance to the question of suitability of accommodation can be illustrated by Ms Bretherton’s submissions on the issue of domestic violence. In the course of the Council’s correspondence with Ms Best’s solicitors leading up to Decision A (and indeed to Decision B), there is no complaint by Ms Best that the location of Marlborough Road or the nature of the premises were unsuitable in the light of Mr Christian’s previous and continuing threatening behaviour to her and the children. Despite this, Ms Bretherton submitted that the Council were well aware of the background and had already accepted that Ms Best had been the victim of domestic violence when she lived at Furlong Close, and therefore they had to take the risk from Mr Christian into account when choosing a property, regardless of whether Ms Best raised the matter with them expressly at the time.

I agree with Ms Bretherton that if the Council had reason to suppose that Mr Christian posed an ongoing threat to Ms Best and/or the children, that would be a pertinent consideration in determining whether the accommodation in which the Council proposed to house them was suitable, and the known history of the relationship could be of relevance in assessing the level and degree of risk. Yet if the Council might be obliged to take certain aspects of the background history into account for some purposes when assessing suitability, there is no reason to exclude those aspects of the background history that could be equally relevant but are less favourable to the applicant.

Thus I consider there is no reason in principle why the Council could not have regard to information previously provided by Ms Best about her assets and liabilities or to Ms Best’s previous behaviour and history of failed housing benefit claims if and to the extent that such information was relevant to the issues the Council had to address in February 2008, always bearing in mind that the Council had accepted a full housing duty.

Ms Bretherton has submitted very forcefully that Ms Best is unable to provide any more information to the Housing Benefits office; she has explained that she cannot locate her father’s Will and she has no documents relating to Mr Christian’s interest in Furlong Close, and that she is therefore trapped in a vicious circle. However it is not for this Court to determine matters of fact or to seek to go behind decisions taken by the relevant benefits office, particularly after an independent Housing Benefits Appeal Tribunal has ruled on at least one occasion that the benefits office was entitled to reach the decision that it did on the information provided to it. The key question that arises in these proceedings is whether the Council could legitimately charge a market rent for any accommodation they offered to Ms Best, and, as I have already indicated, the answer depends on whether it was open to the Council, having taken into account all relevant information, to reach the conclusion that Ms Best could afford to pay the rent that the Council was asking. The operative decision in which that conclusion was reached was Decision B, and it is to that decision that I therefore turn.

As I have already mentioned, Decision B was taken after an exchange of detailed correspondence between Mr O’Malley, on behalf of the Council, and Ms Best’s solicitors Turpin & Miller. On 16^th May 2008 Mr O’Malley wrote to Turpin & Miller asking for a detailed and accurate schedule of monthly income and expenditure while Ms Best lived at Marlborough Road, and copies of all bank and building society statements relating to that period. The letter asked specifically what level of rent Ms Best believed she could have afforded to pay. Under cover of a letter dated 10^th June 2008, Turpin & Miller provided the Council with a statement of income and expenditure (but no bank or building society statements because, they said, they were unable to contact their client). In answer to the question what level of rent Ms Best believed she could afford, they said this: “Because she was in receipt of income support and the law says that that is the minimum that she needs to live on, she does not believe that she had any money available to pay for the rent at Marlborough Road”.

Mr O’Malley sought clarification of certain of the information provided. He specifically asked why Ms Best did not sell shares, that she had estimated were worth £4,000, to pay the rent. In answer to this, Turpin & Miller said “under the benefit rules a person is allowed to have capital of up to £16,000. It seems discriminatory for the council to consider that this applicant should not be allowed a relatively small amount of capital in light of this rule which is applied to all applicants”. They went on to point out that selling the shares would only have been a short-term solution, as the rent at Marlborough Road was in the region of £1,000 per month.

In a letter dated 19^th June 2008, sent by fax the following day, Mr O’Malley asked further detailed questions about the information he had been given. In paragraph 7 he pointed out that on her own calculations Ms Best had a surplus of income over expenditure of about £51 per month. He asked why she did not use that money to pay the rent on Marlborough Road. Turpin & Miller responded on 26^th June. Some, but not all, of Ms Best’s bank statements were supplied (they explained that the bank had failed to provide all of them and that Ms Best would ask it to supply the missing ones). That letter does not answer the question in paragraph 7 of Mr O’Malley’s letter directly. It states that if Ms Best underestimated the cost of running her car (a point made by Mr O’Malley in the correspondence) then she would have had less money to spend on the rent. The explanation given for Ms Best keeping a car, not cashing in a PEP, and paying for after school activities for the children was “to encourage the children to enjoy their lives and to give them a reprieve from the nightmare of the last two or three years” – a reference to the behaviour of Mr Christian.

The letter continues: “Miss Best states that the rent at Marlborough Road was too expensive to pay all of the rent. Even if she had paid what little she could have (the service charges plus £10 per week is her suggestion) she would have been evicted in any event. She says that if someone had asked her to make an affordable contribution to the rent to prevent her eviction she would have paid this. Her point is that whatever affordable payment she could have made would not in fact have stopped her from being evicted. Miss Best adds that your inference that she should live rent free at other people’s expense could be levelled at every person who receives housing benefit. Housing benefit is designed to assist people who cannot afford to pay rent, and indeed those recipients effectively live “rent free”.

The letter of 26^th June 2008 is the first to mention the behaviour of Mr Christian. It refers to the injunction obtained in December 2007 and the incident that led up to it (the attempted running over of the elder child). It also states that Ms Best is very frightened to use public transport because Mr Christian used to travel around Blackbird Leys in his car and to follow her around. She is frightened that without the car she would be very vulnerable. This information was volunteered in answer to questions about why Ms Best had not encashed the PEP and ISAs and why she was running a car.

On 3^rd July 2008 Mr O’Malley wrote again asking for additional information. He asked a specific number of questions about Mr Christian and the potential threat that he posed, including questions designed to ascertain where Mr Christian now lived. He also asked further questions about Ms Best’s assets and again specifically asked what Ms Best’s explanation was for not paying any rent at Marlborough Road if, on her own calculations, she had a surplus of £51 per month. He also said that the determination made on Ms Best’s claim for housing benefit was that she was ineligible for housing benefit because she had deprived herself of capital assets, and asked whether she wished to respond to this. On 14^th July 2008 Turpin & Miller responded. Among the points they made was “the housing benefit issue is being resolved at tribunal. Miss Best has disagreed entirely with the decision that she is not entitled for housing benefit (sic) for some time and has believed this will be paid. Indeed she notes that Oxford City Council still owe her £9,500 following a Court Order to reimburse her for rent paid by her at Fairacres Road”. As to the surplus of £51.58 per month the letter said that “Ms Best finds it bizarre that this figure is being rested on as an exacting figure for disposable income, when food bills fluctuate week on week as do bills and the varying costs of everyday living…”

In paragraph 6 of the letter an explanation is given for what happened to Ms Best’s share of the proceeds of sale of Fairacres Road. After paying off rent arrears of £9,500, £3,000 to solicitors fees, £1,500 to pay a credit card and payment of sundry debts to various high street cards, Ms Best said she lived on the rest because her benefits were not being paid. She did not have enough money to take the children on holiday or make any major purchases because the money was “simply spent”.

The decision letter conveying Decision B is dated 25^th July 2008. Paragraph 4.6 states that the figures in the schedule of income and expenditure provided by Ms Best “unravelled on analysis” and goes on to give examples of why: these include Ms Best keeping silent about her regular weekly income from the work at Littlemore Hospital, her initial failure to mention certain savings, the drastic under-valuation of what was then the current value of her ISAs, which she claimed (without any supporting evidence) to be held in trust for her children, and what the selective number of bank statements supplied had revealed about her expenditure on such matters as the car, meals in pubs and restaurants, shopping at expensive retailers, and hobbies for the children. Mr O’Malley placed particular emphasis on the pattern of expenditure that, with justification, he concluded did not appear to be consistent with the behaviour of an impecunious person worried about money, “indeed just the opposite”. He also referred to her failure to provide him with up to date documentation about her savings, and to the missing bank statements. He came to the conclusion that Ms Best had been dishonest, that she was not acting in good faith, that the reason for her failure to provide information was to conceal evidence of assets that were available to her, and that in all probability her capital assets were over £16,000 in total.

As Mr O’Malley pointed out, his conclusion on that point was consistent with the conclusion of the Housing Benefits Appeal Tribunal back in 2005 and the continuing failure of Ms Best to obtain housing benefit because her capital was in excess of £16,000. Mr O’Malley also referred to what he described as the absence of any satisfactory account as to what happened to the proceeds of sale of either Strawberry Path or Furlong Close.

The main ground of challenge to Decision B (and to Decision A) was that the Council erred in law or reached a conclusion that was Wednesbury unreasonable on the question whether Ms Best could afford to pay the rent at Marlborough Road. If that conclusion was wrong, then Marlborough Road was not suitable accommodation and the Council were in breach of their duty under s.193 of the 1996 Act. The decision that Ms Best had made herself intentionally homeless by not paying the rent at Marlborough Road must therefore be set aside.

On the face of it, Mr O’Malley investigated the question of suitability of Marlborough Road and specifically addressed his mind to the key question whether Ms Best could afford the rent on that property, which was set at an appropriate level by reference to other properties in that area. He concluded that Ms Best could have afforded to pay that rent, that the property was suitable, and that she had made herself intentionally homeless by failing to pay the rent. He gave detailed reasons for reaching that view.

He did not simply rely on the fact that she had been refused Housing Benefit in the past: had he done so, there would have been scope for criticism, because the duty of the Council is to look at affordability at the time when the s.193 duty is accepted, and that necessarily involves looking at the resources available to the applicant at that time. However it was open to Mr O’Malley to take into account the fact that in the past the Housing Benefit Tribunal had decided that Ms Best did not qualify for Housing Benefit because she had assessed capital of more than £16,000, and that as at February 2008 and as at the date of his decision, Ms Best was still deemed ineligible for Housing Benefit. In any event, he relied principally on the results of his own inquiries and the chain of recent correspondence to which I have referred.

Ms Bretherton submitted that it was not open to Mr O’Malley, as a matter of law, to take the point that Ms Best should have cashed in her savings such as the PEP and ISAs to pay the rent, because the Council were already aware of the existence of her savings accounts at the time when they accepted the full housing duty. They had accepted that duty notwithstanding that she had not used her savings to pay the rent on previous accommodation and had been evicted from that accommodation. I do not accept that submission. Mr O’Malley was not relying on Ms Best’s failure to pay the rent on other accommodation or the reasons for it as a ground for holding that she had made herself intentionally homeless. He was carrying out the legitimate exercise of considering what resources were available to her to pay the rent on Marlborough Road in 2008, in order to ascertain whether those premises were affordable. That was a key aspect of the process of ascertaining whether the Council had discharged their duty under s.193 by providing her with suitable accommodation. He was not constrained to ignore the existence and value of certain of those resources by virtue of the fact that the Council had accepted a full housing duty in the knowledge of their existence.

Ms Bretherton also submitted that there was a failure to adhere to the requirements of Regulation 8(2) of the Order, and that Mr O’Malley did not give Ms Best fair warning of his intention to confirm Decision A on the basis that she should have cashed her savings to pay the rent and her failure to do so made her intentionally homeless. However, that is not the rationale for Decision B. Mr O’Malley decided that the accommodation was suitable because, on the basis of the information provided to him, it was affordable for Ms Best. A number of factors led him to the conclusion that it was affordable, among which was the fact that Ms Best had recourse to savings and other realisable assets. In the light of the questions and answers in the correspondence leading up to Decision B, Ms Best and her legal advisers can hardly have been taken by surprise by this, and they were given ample opportunity to deal with Mr O’Malley’s concerns, which were clearly articulated.

Ms Bretherton next submitted, as Turpin & Miller had done in the correspondence leading up to Decision B, that even if one were to add up all the various assets identified by Mr O’Malley as being potentially available to pay the rent, including the life policy, PEP and ISAs, and assumed that all those assets should have been cashed and used for that purpose, Ms Best would still be bound to run out of money sooner rather than later. Consequently it was inevitable that the time would come when she would be evicted because of rent arrears. That submission assumes that the information provided to the Council revealed all available resources. Mr O’Malley concluded that Ms Best had not done so, a point to which I shall return.

However, even if the assumption were correct, I do not accept that the Council’s discretion as to how much rent (if any) they should charge is necessarily circumscribed by the finite nature of the resources available to an applicant for housing. The question of affordability arises at the time of assessing whether the accommodation is “suitable”, which is when the s.193 duty is first accepted. Affordability is always going to be a question of fact and degree depending on the circumstances of the individual case. The local authority must of course ensure that they allow the applicant and any dependents enough to live on, but there is no reason why they should be compelled to allow the applicant to continue to expend money on non-essential items or to keep all his savings, at public expense. In making their evaluation the housing authority will no doubt bear in mind that if the resources are finite, the accommodation may cease to be “suitable” at a future date when the housed person’s financial circumstances change for the worse, which would mean that at that point the housing authority would have to revisit the question of how much (if any) rent is to be charged for it.

It is therefore illogical to discount available resources at the inception of the duty to house, on the grounds that they are finite and will eventually run out. The amount and nature of the resources will be factors in determining affordability. I accept that the question of “affordability” might involve the housing authority in looking beyond the short term because they know they would have to adjust the rent if the available resources are likely to run out in future. If the available resources are likely to run out within a very short period, say, six months, then it may be unreasonable to conclude that the accommodation is affordable at the market rent, and some downwards adjustment may be required. However, I do not accept the proposition that someone who (on this hypothesis) may have up to £16,000 of capital available to them should always be entitled to rent-free or low-rent accommodation if, for some reason, he or she cannot immediately obtain Housing Benefit, and is on income support, simply because once that capital has been expended there will be no other means of paying the rent. There are bound to be cases in which it would be appropriate for the housing authority to take the view that the applicant should use his or her accumulated savings or the income from them to pay the rent in the first instance.

The finite nature of the resources may be a factor to take into account when deciding how much rent to charge. Indeed it might be a reason for the local housing authority deciding to exercise their discretion to charge a lower rent than the market rent from the outset, but that would be entirely a matter for them. If they decide that the applicant can afford to pay the full market rent, and there are indeed sufficient resources available to make such payment, that finding could not be disturbed. That would also be the case if there were information from which the housing authority could reasonably conclude that there were sufficient resources available to pay the market rent for a reasonable period, i.e. a period that is not so short as to make the decision that the rent is “affordable” a perverse one. The decision to charge the full market rent in such a case, whilst it may appear harsh if the only means of payment would be to utilise savings, would not be outside the purview of decisions that a reasonable housing authority could take.

This is not a case where Ms Best cashed her savings, used them to pay the rent and then fell into arrears, nor is it a case where she used the surplus income arising on her own calculations to pay something towards the rent, and it would be wrong to speculate as to what might have been the position had she done so. The fact that she had made no efforts in that regard, and the attitude displayed by Ms Best in her solicitors’ correspondence with Mr O’Malley, was hardly going to advance her cause. However, as Ms Bretherton rightly points out, if the information before the decision maker indicates that the applicant cannot in truth afford to pay the going rent for accommodation, the fact that she could have made economies in the past, or could have been more forthcoming about her available resources at an earlier time, becomes irrelevant. If, objectively, the only way the housing authority can discharge their statutory duty to house a person who cannot obtain Housing Benefit is by providing rent-free or low-rent accommodation, then it does not matter that the person concerned may not be the most deserving of applicants. Nor does it matter that she has racked up huge rent arrears, even if she could have paid something towards the rent and chose not to do so, if she would still have been in exactly the same position because she could never have paid the full sum demanded.

In this particular case, however, the Council did not regard the information provided by Ms Best about her assets as being either full or frank. Even if one were to make the assumption in Ms Best’s favour that if they were realised and used to pay the rent, the identified assets would all be used up within a few months, that does not address the central point made by Mr O’Malley, namely, the probable concealment by Ms Best of other resources. Ms Bretherton stressed that Ms Best is on income support and that necessarily involved the Department For Work and Pensions (“DWP”) accepting that she did not have enough money to live on. However, Mr O’Malley was not obliged to take the same view as the DWP. He had to exercise his own judgment on the material before him.

Ms Bretherton told the Court on instructions that (by contrast to the lie told to the Council when applying for Housing Benefit in April 2008) Ms Best did tell the DWP about the work she was doing at the hospital, which only provides her with minimal income. Ms Bretherton submitted that the fact that Ms Best is getting income support suggests that any income she receives from her work would be insufficient to pay the rent. That may well be so, but it does not get over the point about the likely concealment of other assets: the fact that Ms Best has convinced the DWP that she does not have other income available on which to live is not necessarily inconsistent with Mr O’Malley’s view that she is a manipulative liar.

Ms Bretherton also drew the attention of the Court to the documents in January and February 2005 that indicate what happened, or (in the case of the money set aside for Mr Christian) was intended to happen, to the proceeds of sale of Furlong Close. She submitted that the disposals to Ms Best’s siblings and Mr Christian were treated as “notional capital disposals”, and although they might have delayed Ms Best becoming eligible for Housing Benefit, after a certain time had elapsed, that capital was no longer deemed to be available to her. There would be no justification for a finding by the Council in 2008 that Ms Best had access to any of the money that had been paid to her siblings, or set aside for Mr Christian, even if one were to make the unfavourable assumption that she was under no legal obligation to have paid them a penny of that money in the first place.

Despite the fact that there is no evidence that Mr Christian actually received his share, and the fact that the evidence produced by Ms Best can be described as scanty, I accept Ms Bretherton’s argument that there was insufficient evidence to conclude on the balance of probabilities that Ms Best still had access to the money earmarked for Mr Christian or the money distributed to her siblings out of the proceeds of sale, in 2008 or indeed at any time after they were dealt with by the solicitor in accordance with Ms Best’s instructions in 2005. However, there is nothing on the face of Decision B to indicate that Mr O’Malley considered that Ms Best still had access to those particular funds. He simply referred to the decision of the Housing Benefit officers and of the Housing Benefits Appeal Tribunal in 2005 that Ms Best’s capital exceeded £16,000 at that time. That decision was open to them regardless of whether they took into account the notional capital distributions to Mr Christian and Ms Best’s siblings because on her own account, Ms Best’s share of the net sale proceeds of Furlong Close was in the region of £23,000.

Ms Bretherton submitted that the Council knew that Ms Best had instructed her solicitors to use that money, or the vast bulk of it, to pay off various debts. Indeed £9,500 had been paid to the Council itself in satisfaction of earlier rent arrears. The Council had seen the letters from Ms Best’s solicitor in 2005 and in any event Turpin & Miller explained what happened to the rest of the money in the letter of 14^th July 2008. Therefore there was no reason to believe that she still had access to any money emanating from Furlong Close.

I accept that the Council did have some information available to them regarding the proceeds of sale of Furlong Close which suggested that Ms Best no longer had access to any significant funds emanating from that property, and that they should have been aware that she had used some of the money to repay rent arrears of about £9,500 relating to Fairacres Road. However the only document supporting Ms Best’s account of how the balance of the £23,000 had been spent was a solicitor’s letter recording her instructions in 2005. Although that letter was in the Council’s files, it was not produced when Mr O’Malley was making his inquiries in the summer of 2008. Even if one were to assume that on the information provided to the Council they were bound to accept on the balance of probabilities that about £15,000 of the £23,000 was used to pay rent arrears, credit cards and solicitors’ fees, the Council had only Ms Best’s unsupported word for what happened to the rest of the money, and she had not demonstrated a propensity for truthfulness. Mr O’Malley was not obliged to accept her uncorroborated account of what happened to the balance of her share of the money from Furlong Close, and he plainly did not accept it.

Ms Bretherton made it clear that her client did not accept that she had been untruthful, and that her case was that she genuinely did not have the means to pay the rent on Marlborough Road, the lower rent on Holloway Road, or any substantial rent on any accommodation. However she submitted that even if Mr O’Malley was justified in his critical assessment of Ms Best and entitled to conclude that she was not acting in good faith, there was still insufficient information to entitle him to leap to the conclusion that she had assets in excess of £16,000, or that she could afford to pay the market rent on Marlborough Road. Even taking together all the disclosed assets and any surplus from Ms Best’s share of the proceeds of sale of Furlong Close (making the adverse assumption that she had not given a truthful explanation) Ms Best plainly could not afford to pay rent of around £1000 per month.

Initially I had some sympathy with that submission, because at first glance it does appear rather startling that someone in receipt of income support and with no access to Housing Benefit could be held to have sufficient resources to pay rent of that amount. However, the question whether Miss Best could afford to pay rent at the rate demanded by the Council was and is a question of fact. This Court can only interfere with Mr O’Malley’s conclusion if no reasonable review officer, armed with the information he had, could have reached the conclusion that she could afford to pay the rent, or if there was an error of law in his approach. I have already held that Mr O’Malley was entitled to have regard to historical information, to the extent that it was pertinent to his fact-finding exercise, and so there was no error of law as alleged. He was entitled to take into account the fact that in 2005 Ms Best was held not to qualify for Housing Benefit because her assets were in excess of the statutory limit, and that this remained the position in 2008. The decision to refuse Housing Benefit had not yet been overturned by any appellate Tribunal.

Mr O’Malley was not obliged to accept Ms Best’s explanation of what happened to the balance of her share of the proceeds of sale from Furlong Close (above and beyond the dispersals that were documented such as the payment of the £9,500 rent arrears). However even if he was, there were other aspects of her evidence, like the patently false story that the sale proceeds of Strawberry Path were used to buy Furlong Close, that cannot be explained away. Ms Best’s uncorroborated explanation that she had obtained a bridging loan was not accepted. If the evidence before Mr O’Malley indicated that the sale proceeds of Strawberry Path could not have been used to buy Furlong Close, because Ms Best had already purchased it the previous year, then in my judgment Mr O’Malley’s conclusion that Ms Best still had undeclared assets emanating from the sale of either Furlong Close or Strawberry Path was a conclusion that he was entitled to reach on that information alone.

Mr O’Malley referred to Ms Best’s “ lack of good faith … evidenced by your continued obfuscation, stonewalling and failure to reasonably answer simple inquiries with clarity or at all”. The correspondence I have seen indicates that this was fair comment. If an applicant for assistance with housing, in this case Ms Best, is not giving answers to straightforward questions, or answers them inaccurately and then comes up with implausible excuses, is caught out telling lies, and appears to be concealing information that has been requested and which ought to be readily available to her, the review officer is entitled (indeed he is probably obliged) to consider why she is behaving like that. The likely motive is obvious: as Mr O’Malley said, “I believe, on balance, the reason for this failure to provide information is to conceal evidence of assets you have available to you”. If, in addition, that applicant is revealed to have a pattern of spending that is inconsistent with living in penury, and appears to be taking no steps to economise or prioritise payments, it only serves to reinforce the legitimate inference that she has other resources available to her, and is deliberately keeping quiet about them.

Mr O’Malley’s conclusion that Ms Best had access to significant financial resources in 2005, and that in all probability her capital assets at the time of his review decision in April 2008 were still worth over £16,000 in total was one that was within acceptable parameters, and not simply because it coincides with the view taken by the Council’s Housing Benefits officers which has not been overturned by any Housing Benefits Appeal Tribunal (though that fact fortifies the conclusion). Mr O’Malley came up with an explanation for Ms Best’s behaviour that is not just within the range of those that would be open to a reasonable review officer to find, but which is probably the most likely explanation.

Looking at the overall picture, and the pattern of Ms Best’s behaviour including her spending, it is impossible for me to say that the conclusion reached by Mr O’Malley that she was concealing the existence of other resources which would have been enough to pay the rent, was Wednesbury unreasonable, or that his decision-making process was based on any error of law or otherwise fatally flawed. Whether that conclusion was in fact right or wrong is not the issue I have to address. In my judgment, the Council, having properly directed themselves, were to conclude that Ms Best could afford to pay the market rent at Marlborough Road and therefore Decision B was not susceptible of being judicially reviewed on that ground.

I was not asked to rule on the question whether there were grounds for setting aside Decision B on the basis of alleged breaches of Regulation 8(2), which of course would be an error of law, and which formed the main subject-matter of the appeal to the County Court under s.204 of the 1996 Act. I therefore do not intend to overburden an already lengthy judgment with detailed consideration of that point. It seemed to me that Mr Bhose accepted that there might be force in at least some of the arguments raised by Ms Bretherton on Regulation 8(2), though he did contend that the correspondence leading up to Decision B indicated that in reality Ms Best was given a fair opportunity to address all the issues that led to the Council’s adverse decision. He also submitted that the County Court, in an appeal under s.204, would still have a discretion whether or not to set aside Decision B, though Ms Bretherton pointed to the authorities which do appear to suggest that the requirements of s.8(2) must be strictly adhered to. If such a challenge succeeds, however technical it is, the matter must be remitted for reconsideration. Otherwise the purpose behind the “minded to” procedure would be subverted.

In the light of my findings on the substantive point at the heart of this case, it is clear that a successful technical challenge to Decision B, on the basis that the procedure in Regulation 8(2) was not followed, would be likely to turn into a Phyrric victory for Ms Best. If the matter were remitted for reconsideration on a fresh review under s.202, and the procedure in Regulation 8(2) were followed to the letter, and the Council still reached the same conclusion, that conclusion would be justified, in the sense that (right or wrong) it would be within the range of decisions that would be open to the Council to make on the information before them.

Ms Bretherton’s second challenge to Decision B was that Marlborough Road was not “suitable” because of the risk of violence from Mr Christian, a point which is not addressed by Mr O’Malley anywhere in the decision letter. Mr Bhose pointed out that the only basis on which a statutory review of Decision A had been sought, and the only complaint made about the suitability of Marlborough Road, was that Ms Best could not afford to pay the rent there. In answer to this, Ms Bretherton submitted that the Council was under a statutory duty to provide suitable accommodation, and any determination of suitability had to take into account the risk of violence, whether or not the applicant for housing expressly raised it with them. It was not incumbent on Ms Best to go through the background history all over again, as the Council was not only aware of it but had accepted it as truthful in past determinations; indeed the risk of domestic violence in the Oxford area had been specifically raised in the Grounds of Appeal served on the Council in August 2007 (in relation to the review decision of 23^rd July 2007). In any event, the difficulties experienced with Mr Christian as recently as December 2007 were referred to in the letter of 26^th June 2008. Mr Bhose responded by pointing out, correctly, that there was no information in that letter or in any other correspondence to suggest that the injunction obtained in December 2007 had proved ineffective.

Ultimately Ms Bretherton resiled from her initial position that nowhere in the Oxford area would be safe for Ms Best and the children to live. She accepted that the elder child could not be moved from his current school without damaging his educational prospects at such a key time (a point made by Turpin & Miller in the correspondence). It seems clear from the information that was put before Mr O’Malley that Mr Christian knows where the children go to school and where their grandmother lives, and is willing to make a nuisance of himself in both locations. Therefore, unless the family moves out of the area altogether, which it is now accepted they cannot because of the children’s educational needs, there is bound to be an element of risk to them, wherever they are housed. The question for the Council was whether the location of Marlborough Road or anything else about it posed a specific risk to Ms Best and the children, or heightened the existing risk.

As a matter of law, it is not incumbent on an applicant for housing who is at risk of violence to take steps to protect herself by going to Court and getting an injunction which, sadly, may prove to be of limited value in any event. However in the present case, Mr O’Malley was told that Ms Best had obtained a court order in December 2007 and he was not told (as I was told) that Mr Christian had broken it and was now facing criminal charges. Although I accepted what Ms Bretherton told me about that on instructions, there was no evidence of the manner in which the injunction was broken, or when, and of course the family has not been living at Marlborough Road since 8^th April 2008. The question is whether, when the Council accepted a full housing duty, Marlborough Road was unsuitable accommodation because if Ms Best and the children went to live there, as opposed to somewhere else in Oxford, there would be a specific risk of violence from Mr Christian.

When the matter of Mr Christian’s behaviour was raised in the correspondence, Mr O’Malley asked a number of sensible questions which were plainly directed to the risk of violence, before he reached Decision B. He obtained confirmation that Mr Christian was living outside Oxford, in Abingdon. There was no evidence that Mr Christian had visited Marlborough Road, or that he was even aware of the address at which the family was living. The information from Turpin & Miller suggested that there had been arrangements for Mr Christian to have contact with the children until the children decided that they no longer wished to see their father. The behaviour complained of appeared to be taking place in public areas.

I accept that if the housing authority knows of a background of domestic violence and that a particular individual poses a threat to the applicant and any dependents then it should not offer accommodation that is unsuitable because it places them in immediate danger, or because it heightens any existing risk, e.g. if it is in the same neighbourhood as the perpetrator of the violence, or if it would be easy for that person to go there and harm the occupants with little risk of being seen or discovered. However there was no material before the Council in February 2008, let alone before Mr O’Malley in April 2008, and there is no material before the Court on this application to suggest that Marlborough Road fell into that category. The family appeared to have been living there without incident for some time.

I agree that the obligation on the Council to provide suitable accommodation arises regardless of any specific complaint made by the applicant and that when the accommodation is provided they would be obliged to consider the risk of exposure to violence. However if they do provide accommodation which, so far as the Council are aware is suitable, and the occupant is subsequently evicted from those premises for non-payment of the rent, and wishes at that stage to challenge the suitability of the accommodation as part of the challenge to the decision that she has made herself intentionally homeless, then it is incumbent on her to raise the grounds for challenge to the decision and establish them on the balance of probabilities.

It is relevant that Ms Best did not suggest at any point prior to the making of Decision A or Decision B that Marlborough Road was unsuitable because of its location, or that any other feature about it made her more vulnerable to the risk of violence from Mr Christian than any other accommodation in Oxford. Her sole complaint about Marlborough Road was that she could not afford to pay the rent there. Although Mr O’Malley was not obliged to have regard to an argument on unsuitability that was not raised before him, nevertheless he very properly addressed the information given to him in the correspondence about Mr Christian before making Decision B. The answers to his inquiries did not lead to any ground for concluding that Marlborough Road was unsuitable because there was a real risk that the family would be subjected to violence if they went to live there. Mr O’Malley was under no obligation to deal with the point specifically in his decision letter.

Looking at the evidence in the round, there was no reason to suppose, on the balance of probabilities, that Marlborough Road was unsuitable because it exposed the family to any greater risk of violence than any other property in Oxford. On the information that was before the Council in February 2008, including the historic information about the relationship between Ms Best and Mr Christian, this was not the type of case in which the only way in which a reasonable authority could discharge its statutory duty would be to provide accommodation in staffed premises, or which contained other measures to protect the family, such as video entry monitors.

To the extent that the key issue of affordability underlies the challenge to Decision A, the challenge must fail. Decision A was undoubtedly flawed, and if it had not been reviewed under the statutory review procedure, it is unlikely that it would have been allowed to stand. Unlike Decision B, it was based solely on the premise that Ms Best had made herself intentionally homeless by failing to provide information to the Head of Revenues and Benefits in 2007, and thereby depriving herself of Housing Benefit. There was no attempt to consider what resources were available to Ms Best in February 2008, and it appears to have been assumed or accepted that the only way in which Ms Best could have afforded to pay the rent would have been by obtaining Housing Benefit (which of course is Ms Best’s case). It was not open to the Council to use Ms Best’s historic failure to obtain Housing Benefit at a time before it accepted a full housing duty, as a ground for finding that she had made herself intentionally homeless in April 2008.

However, Decision A has been superseded by a decision on review under s.202, Decision B, which after a proper investigation of her income and expenditure and other resources, was based on a very different factual premise, namely, that her ability to pay the rent was not wholly dependent on the receipt of Housing Benefit. That decision is not susceptible of judicial review. Even if it were still possible to quash Decision A in these circumstances, I would not exercise my discretion in favour of granting that relief so as to sweep away Decision B as well.

It necessarily follows that I reject the submission that the only way in which the Council could discharge their full housing duty to Ms Best under s.293 of the 1996 Act was by providing her with rent-free or low-rent accommodation. The claim that there has been an ongoing breach of statutory duty therefore fails.

A housing authority that accepts they owe a full housing duty to an applicant can only discharge that duty by providing accommodation that is suitable at the time when the duty is accepted and continues to be suitable thereafter. If the accommodation is not suitable, because it is not affordable, or for other reasons, the applicant cannot make himself or herself intentionally homeless from it. The housing authority cannot use past conduct, of which they were aware at the time of accepting the full duty, as a ground for saying that the applicant has made himself or herself intentionally homeless from the accommodation that is provided.

The housing authority should never charge rent at a level that they know that the applicant is unable to afford to pay: but if the applicant could obtain a benefit that would enable him to pay that rent and fails to obtain it through his own fault, the housing authority may be entitled to reach the view that he has made himself intentionally homeless if he is evicted for non-payment of the rent. Much will depend on the facts and circumstances of each particular case.

In determining whether the accommodation or is not suitable and in addressing the issue of affordability, the housing authority must consider the income and other resources available to the applicant to pay the rent, as well as essential outgoings and liabilities. They are not obliged to allow the applicant to expend available resources on non-essential matters in priority to paying rent. Nor are they obliged to allow him to keep all his savings and live rent-free at the taxpayer’s expense. There will always be a balancing exercise. The housing authority have a discretion as to how much rent they should charge, and are not bound to charge the market rent. They should not do so if it is apparent that the applicant cannot afford to pay rent at that rate, or could only afford to pay it for such a short period that it is inevitable that he will be evicted. They may have regard to historical information about assets and other resources such as benefits, if and insofar as that information is relevant to the issue of current affordability.

If the applicant has failed to obtain a particular benefit in the past, the reasons for that failure may be of relevance to the question whether he could obtain that benefit currently or in the future. If his failure to obtain the benefit in the past, or the reasons for that failure, would not preclude him from making a fresh application and obtaining it at the time when the local authority accepts a full housing duty, then the local housing authority may treat the benefit as available for the purpose of determining affordability. If he tries to obtain the benefit and fails, for reasons that are not his fault, then the local housing authority must disregard the benefit. They are entitled to have regard to what the housing benefits office, or a Housing Benefit Appeal Tribunal, has decided and the reasons for its decision, though that does not preclude the local authority from making their own inquiries.

In this particular case the evidence does not establish that the Council could only comply with their duty under s.193 of the 1996 Act by providing Ms Best with accommodation that is otherwise suitable in terms of its size, layout and location, either rent-free or at a very low rent. The Council were entitled to take the view, on the information available to them, that in spite of the fact that she was on Income Support, Ms Best’s ability to pay the rent was not dependent upon receiving Housing Benefit, and that she could pay from other available resources, only some of which she had chosen to reveal to them. Whether that view is right or wrong as a matter of fact, it was a view that the Council and its review officer Mr O’Malley were entitled to take, and his decision that Ms Best had made herself intentionally homeless by failing to pay the rent at Marlborough Road after 19^th February 2008 and being evicted from that property in consequence cannot be reviewed by this Court.

For those reasons, the claim for declaratory relief and for a quashing order in respect of Decision A and Decision B is dismissed.