ADVISER: Reviewing a decision that the client is intentionally homeless

We’ve been inundated with clients asking for help overturning negative homeless decisions recently.  Because of this increase, we thought it would be useful to share one of our recent review cases with you.  

I recently met with Joanna, a single mum who’d been living in Manchester, but returned to Northern Ireland to be closer to family after being made redundant. Joanna left her home in England as losing her job meant she couldn’t afford to live there anymore.  However, her homelessness decision letter stated that Joanna was intentionally homeless because she hadn’t built up any rent arrears in her old home.

Intentionality and affordability

I met with Joanna to discuss why she had left Manchester.  During our conversation, she told me that she’d tried really hard to keep on top of her rent, but that trying to keep up with these payments meant that she’d fallen way behind on her council tax payments and had built up debts with her electricity and gas suppliers. 

Joanna and I worked out her monthly income and expenditure when she was living in Manchester.  It was obvious that Joanna couldn’t afford to remain in the property once she’d lost her job.

Can you be intentionally homeless if it wasn’t reasonable to remain in your home?

Article 6 (1) of the 1988 Order states that an applicant can’t be intentionally homeless if the decision maker has agreed that it wasn’t reasonable for the applicant to remain in the property. If I could get the Housing Executive to agree that it wasn’t reasonable for Joanna to continue living at her home in Manchester, they’d have to overturn the decision on intentionality.

Local authorities refer to the Department for Communities & Local Government’s Homelessness Code of Guidance when making decisions on homeless applications. Section 8.29 of this guidance states that when assessing reasonableness “One factor that must be considered in all cases is affordability.”

This section of the guidance continues:

“In determining whether it would be (or would have been) reasonable for a person to continue to occupy accommodation, a housing authority must take into account whether the accommodation is affordable for him or her and must, in particular, take account of:

(a) The financial resources available to him or her
(b) The costs in respect of the accommodation
(c) Maintenance payments (to a spouse, former spouse or in respect of child); and
(d) His or her reasonable living expenses”

Case law on whether it’s reasonable to continue living somewhere you can’t afford

One of the key cases on affordability and intentionality is R v Hillingdon LBC ex p Tinn (1988) 20 HLR 305.  In the decision, QBD Kennedy J states:

“it cannot be reasonable for a person to continue to occupy accommodation when they can no longer discharge the fiscal obligations in relation to that accommodation without so straining their resources as to deprive themselves of the ordinary necessities of life, such as food clothing heat an transport and so forth.”

In Joanna’s case, it was obvious that she couldn’t pay her rent, her council tax and all her other household bills.  There was no way for her to sustain the tenancy so it wasn’t reasonable for Joanna to remain in this property.

Had the decision maker made the necessary enquiries?

When making a decision on a homeless application, Article 7 (2) of the Housing (NI) Order 1988 requires that the decision maker carry out any further inquiries necessary to satisfy him or herself as to whether an applicant is intentionally homeless. 

Last month, our legal team looked at a Court of Appeal case in England that stressed the need for a detailed investigation to be carried out when a client claims he or she is homeless because they couldn’t afford to live in their previous property.

I was concerned that Joanna’s circumstances hadn’t been thoroughly investigated by the decision maker. The decision letter simply stated that the accommodation in England was available and reasonable for our clients to continue to occupy and this decision was based on information received by Joanna’s old landlord. The letter didn’t give any specifics about what Joanna’s landlord had said and it didn’t seem that Joanna had any opportunity to respond to her landlord’s statements about the tenancy. In a fair decision-making process, any person affected by a decision has a right to be informed of and to comment on any adverse information. 

Submitting the review

After collecting all the necessary evidence and case law references, I submitted my representations to the Housing Executive.  I pointed out that it wasn’t reasonable for Joanna to remain in the property and that the Housing Executive’s investigations were not detailed enough to highlight this fact. 

On review, the Housing Executive accepted that Joanna was not intentionally homeless and awarded her Full Duty Applicant Status. Joanna is now living with her daughter in temporary housing, provided by the Housing Executive, and waiting for an offer of permanent accommodation.

Find out more about homeless reviews

Housing Rights will be running the popular Housing Advice Training Programme in Belfast in May and Derry/Londonderry in June 2016. This 4 day course covers all aspects of housing advice including carrying out homeless reviews. 

We also have a Professional Resource Challenging Homeless Decisions.