Reasonable to continue the occupation

The concept of 'reasonable to continue to occupy' can be looked at in two contexts is based on the physical condition of the property and the personal circumstances of the applicant.

Legislation also allows authorities to have regard to the general circumstances prevailing in relation to housing in the area, when deciding whether accommodation is reasonable to continue to occupy. [1] This is something that must be weighed carefully in balance with other factors but is not the overall determining factor. [2]

In the case of the Ali [3] family living in a room 10ft x 12ft, the judge stated that, 'no evidence has been placed before me that accommodation in the area of Westminster City Council is so desperately short that it is "reasonable" to accept overcrowding to this degree'.

An applicant should only be found intentionally homeless as the result of rent or mortgage arrears when the local authority is satisfied that there has been 'wilful default' [4] and this means that the applicant must have had the resources to pay her/his housing costs but wilfully refused to do so.

In an English Court of Appeal Case [5] where the applicant had been evicted from her council house for rent arrears, the council had appealed against the Lower Court's decision that the applicant was not intentionally homeless. In rejecting the council's appeal it was held, 'it is no part of [6] to refuse housing to those whose homelessness has been brought upon them without fault in their part, for example disability, sickness, poverty or even a simple inability to make ends meet'. The courts have also expressed the view that it would not be reasonable to continue to occupy accommodation that the person could no longer afford without depriving themselves of the basic necessities of life. [7]

Where benefits form part of an applicant's financial resources, authorities should compare them to the applicant's reasonable living expenses and consider whether the applicant can afford to make up any shortfalls between housing benefits and rent without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to their circumstances. [8]

The Code of Guidance suggests that a test of 'real financial difficulties' may be when someone has less disposable income left after paying their housing costs than they would be entitled to receive in income support. [9] Advisers should be aware that those in financial difficulties not in receipt of income support (or universal credit) are also excluded from associated benefits such as free school meals, so it may be that a more realistic test, taking account of these associated benefits, should be argued for and applied.

A victim of domestic abuse should never be deemed to have become homeless intentionally, because it would clearly not have been reasonable to stay at home in these circumstances. [10] Someone who has not exercised their occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1991 should also not be found intentionally homeless whatever their reasons for not exercising such rights. [11]

An applicant should not be regarded as intentionally homeless when they have left their accommodation due to a fear of, or actual, external violence. The Code of Guidance gives racial attacks or antisocial neighbours as examples. [12]

Note, that when assessing the probability of violence, the local authority may consider the relevant timescales. In one case, where the applicant, who had been previously subjected to domestic violence, did not indicate she had to leave her accommodation because of domestic violence and sought a payment arrangement with the landlord in order to be able to continue to reside at the property, the Court of Appeal held that the reviewing officer had correctly assessed the probability of violence, taking into account the fact that there was no evidence of violence since non-molestation orders had been issued, and had been entitled to uphold the original intentionality decision. [13]

A later event can be regarded as breaking the chain of causation from an applicant's earlier deliberate act. In an English case considered by the Supreme Court the applicant had voluntarily left a single persons hostel when pregnant, however she had given birth to a child at the time of the authority's decision into her homelessness application, which meant that she would have been evicted from the hostel. As such the applicant was not intentionally homeless. [14]

The section on the legal definition of homelessness - Reasonable to continue to occupy may also provide further examples.