As benefit cuts take effect and private rents rise, it is becoming harder and harder for many people to afford all their essentials, including their rent. Evictions from private tenancies are now the biggest single cause of homelessness in London.
But if the tenant makes a homeless application, there is a real risk that the Council will decide that they are intentionally homeless if they failed to pay the rent. The Council does not have to find accommodation for anyone who is intentionally homeless, so for hard-pressed Councils, it is very easy to simply look at the rent arrears and say 'we don’t owe a duty to accommodate the homeless applicant'.
What the council must consider is whether the failure to pay rent was something that the tenant chose to do, or whether the tenant genuinely couldn’t afford the rent. If they really couldn’t afford the rent, then they are not intentionally homeless.
When looking at the homeless person’s income and outgoings, there will be some kinds of spending that will be considered to be less important than the rent, like repaying debts or credit cards. But the principle is:
"Housing authorities will need to consider whether the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials.”
What those other essentials are will depend on people’s circumstances. For example a disabled person may ned taxis rather than being able to use public transport.
The Council must do a proper assessment of income and outgoings, taking the person’s circumstances into account.
In a recent case in the Court of Appeal, Farah v London Borough of Hillingdon  EWCA Civ 359, Hillingdon Council’s decision that Ms Farah was intentionally homeless was quashed, because of the Council’s poor assessment of her income and whether the rent was affordable for her.
Although some items of Ms Farah’s outgoings were taken to be clearly unnecessary or less important than the rent, like credit card payments, she would still not have been able to afford the rent even if those weren’t deducted. Hillingdon’s decision on her homeless application and review then just said:
"I have also noted that some items in your weekly expenditure are exaggerated for a family of 4 with 3 children being under the age of 11"
But the decision did not say what items they were, why they were exaggerated or what an appropriate figure would have been.
The Court of Appeal said that Hillingdon had not given affordability a proper consideration. it was not enough to just say ‘some items were exaggerated’.
"It makes no reference to the Guide; to the appellant's own explanation for her expenditure and the consequent arrears of rent; to the housing officer's judgment as to what items of expenditure were non-essential; or to the issue of whether other items of expenditure were excessive.”
So, while tenants facing financial problems in their tenancies need to prioritise certain debts, like rent, utility bills and the like, it is not good enough for councils when looking at homeless applicant’s income and outgoings for the time when they were tenants to just say ‘we think you spent too much on non-essential things’ without explaining what those things were, why it was too much and what the figure should have been.