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

A housing authority owing the full duty under Housing Act 1996, section 193 must provide accommodation that is suitable when offered and remains suitable. Suitability includes affordability, but affordability is assessed by reference to the applicant’s available income, assets, benefits, essential outgoings and liabilities.

The authority may consider historical information where it is relevant to current affordability. It may treat a benefit as an available resource where the applicant could obtain it but fails through their own fault to take the necessary steps. It need not permit non-essential expenditure or retention of savings in preference to paying rent. Past conduct known when the full duty was accepted cannot itself found a later intentional homelessness decision, but subsequent non-payment may do so if the accommodation was suitable.

The claimant sought judicial review of Oxford City Council’s decisions that she had become intentionally homeless after failing to pay rent on accommodation provided under its homelessness duties. Decision A was made on 17 April 2008. Following a statutory review under section 202 of the Housing Act 1996, Decision B confirmed the conclusion on different reasoning.

The claimant argued that the accommodation was unsuitable because she could not afford the rent and because of the risk of violence from her former partner. She also argued that the Council could not rely on conduct or financial information predating its acceptance of the full section 193 duty. The court granted permission to amend the claim to challenge Decision B and determined the substantive issues.

1. Review decision. A decision under section 202 of the Housing Act 1996 supersedes the original decision for operative purposes. The applicant should challenge the review decision by statutory appeal or judicial review. The original decision remains in existence and may be reviewed again if the review decision is set aside.
2. Suitability and affordability. The section 193 duty is continuing. Accommodation must be suitable when provided and thereafter, and it cannot be suitable if the applicant cannot afford it. Affordability requires consideration of available income, capital, benefits, essential expenditure and liabilities. The authority has discretion over the rent charged and is not invariably required to charge the market rent.
3. The authority may consider historical information where it bears on current resources or credibility. It may regard a benefit as available where the applicant could obtain it by taking reasonable steps but has failed to do so through their own fault. Conversely, a benefit must be disregarded where the applicant has tried and failed to obtain it for reasons not attributable to them. Finite resources may justify a lower rent if they would be exhausted so quickly that affordability would be illusory.
4. Conduct predating acceptance of the full section 193 duty cannot itself be treated as the deliberate act causing later intentional homelessness. It may, however, inform the assessment of current affordability and available resources. The Council was entitled to conclude that the claimant had concealed resources and could afford the rent, so Decision B was not Wednesbury unreasonable or vitiated by legal error.
5. The risk of domestic violence is relevant to suitability whether or not expressly raised by the applicant. But the evidence did not show that the accommodation heightened the existing risk or placed the family in immediate danger. The challenge failed. Decision A had been superseded by Decision B, and the claim for declaratory and quashing relief was dismissed.

The judgment was at first instance. It records a pending appeal to Oxford County Court under section 204 of the Housing Act 1996 against Decision B. That appeal was adjourned pending determination of this judicial review.