Reasonable to continue occupation

An applicant can be considered as homeless despite having accommodation from which they do not face imminent eviction. This is because it may not be reasonable to them to continue to occupy the accommodation. [1]

Accommodation can be thought unreasonable for someone to continue to occupy for any number of reasons. The Code of Guidance lists some examples of such reasons. [2] It should be noted that the list is not an exhaustive one as it only gives examples:

• The accommodation is below the tolerable standard.

• The applicant is living in bed-and-breakfast accommodation.

• The applicant is living a hostel or other accommodation, such as a refuge [3] or mobile home, which is not intended to be long-term.

• There is external violence, including racial or other harassment.

• The accommodation poses a substantial risk to a person's health, including their mental health.

• The accommodation is not practical because of the applicant's physical impairments.

The House of Lords has held that the phrase 'reasonable to continue to occupy' means that occupation is to be looked at over time. As such it is possible an applicant can be statutorily homeless even where it could be reasonable for them to remain where they are for the short, or even medium term, while the local authority takes steps to secure other accommodation. The local authority has to ask itself whether an applicant's continued occupation is reasonable for the foreseeable future, not just the present. How long it would be reasonable for them to remain will depend upon the applicant's particular circumstances. [4]

The 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. [5] However this is something that must be weighed carefully in balance with other factors and it is not the overall determining factor. The authority must weigh up the merits of each case. [6] In a case concerning Monaf [7] the local authority's decision (that the applicant was intentionally homeless) was quashed because the decision letter did not show that the authority had properly carried out the balancing-act between housing conditions in its area and the applicant's pattern of life. Individual circumstances must always be considered so that local authorities with scarce stock cannot seek to exclude certain categories of homeless people through blanket policies.

A non-binding county court decision held that this was not a comparative exercise, ie the local authority could not find that it was reasonable for the applicant to continue to occupy the home because others in the area were worse off than she was. Rather the authority could use its experience of housing conditions in its area as part of its assessment of general housing circumstances. [8]

Local authorities must consider whether accommodation is affordable when deciding whether it would be (or would have been) reasonable for the applicant to continue to occupy. [9]

In particular, advisers should consider:

• the financial resources of the applicant such as wages and benefits

• all the costs of accommodation

• maintenance payments (in respect of ex-family members) and

• other reasonable living expenses.

How 'other reasonable living expenses' is assessed has always presented some difficulty. However, the courts have indicated that it cannot be reasonable to expect someone to continue to occupy accommodation when they cannot discharge their financial obligations without depriving themselves of the ordinary necessities of life, such as food, clothing, heat, transport and so forth. [10]

As a result of Housing Benefit changes and the restriction on funds that a local authority may use to increase Housing Benefit, private sector tenants may be faced with having to make up the contractual rent from their other benefits. In such cases it could be argued that it is not reasonable for the applicant to continue to occupy the accommodation. This has been confirmed by several English cases under the comparable legislation. [11] - in the case of Kaur it was held that 'accommodation is not suitable unless it is at a rent which the applicant can afford, either from her/his own resources or with the benefit of such public assistance as is likely to be available to her/him'.

The following factors are relevant in deciding whether it is reasonable for someone to continue to occupy her/his accommodation:

• damp conditions that could affect the applicant's health, particularly if medical advisers have advised the applicant not to return [12]

• unsafe accommodation - such as a flat in a house in multiple occupation with no adequate means of escape from fire - has been held to be reasonable to continue to occupy where the local authority was taking active steps to enforce safety standard. [13] However, in a case where the applicant was a heavily pregnant woman in a bedsit in serious disrepair with no fire escape, and no such steps were being taken, an injunction was granted to provide accommodation until the court heard the case [14]

• the physical conditions of the accommodation may also be related to the length of time the applicant has lived there. The courts have held that people may be expected to put up with relatively poor conditions on a temporary basis, but there will come a time when it is no longer reasonable to expect them to continue to occupy such accommodation. [15]

Accommodation that was reasonable to occupy at one time may not always be so if the applicant's circumstances change, for example, if someone sustains a disability by an accident, or s/he needed a carer but there was insufficient space for another person. The Code states for example that it may not be reasonable for an applicant to continue to occupy accommodation which is impracticable because of his or her physical impairments or disabilities. [16] Other examples might be where the household size has grown, or the state of the property has deteriorated significantly.

The court has held that medical issues such as a person's physical ability to cope with living in a home on a steep hill are relevant to deciding whether it is reasonable for someone to continue to occupy. [17] Other chronic illnesses, such as HIV/AIDs or cancer, may affect whether or not a property is reasonable for someone to occupy as their housing needs may be more complex. Where a person has care or support needs that are not being met, they can also request a needs assessment from their local authority. [18] See the page Housing for disabled people for more information.

The court has held that overcrowding cannot be disregarded just because it does not constitute statutory overcrowding. Reasonableness to occupy is not limited to statutory factors; non-statutory overcrowding should also be considered. [19]

Where a home is both Overcrowded and a danger to health then the applicant is considered in statute to be homeless.

The House of Lords has held that women's refuges are a safe haven for those fleeing domestic violence and should not be treated as places which it is reasonable to continue to occupy, and 'women will be homeless while they are in the refuge…'. [20]

The same principle has been held to apply to accommodation in a house provided by a local authority in England (under an English assured shorthold tenancy) to a woman assessed as being at risk of domestic violence. [21]

The High Court declined to give general guidance on how local authorities should treat homelessness applications from pregnant women living in single person hostels. [22]

If it is clear that an applicant with limited security of tenure has been given notice to leave her/his accommodation and has no defence to possession proceedings, an authority should assess whether it is reasonable for her/him to continue to occupy pending the proceedings because the applicant will have no legal right to occupy

Where an occupier's security of tenure means that the landlord can only evict after a court or tribunal has made an order, the occupier retains a legal right to occupy until the point that a possession order is enforced. However, a local authority should not adopt a blanket policy of refusing (or accepting) such occupiers only when such an order has been obtained. In determining whether or not it is reasonable for an applicant to continue to occupy accommodation after receiving valid notice to leave advisers may want to explore the following points:

• the general cost to the housing authority

• the position of the tenant

• the position of the landlord

• whether the landlord will actually proceed with seeking possession

• the burden on the courts of unnecessary court proceedings where there is no defence to possession.

English case law has suggested local authorities should take the above approach. [23]

It is highly unlikely to be reasonable for an applicant to continue to occupy a property beyond the date that a court or tribunal has ordered possession to be returned to the landlord.

The Public Sector Equality Duty [24] has been held to apply to the exercise of a local authority's function in individual homelessness cases. [25]. There may be situations in which the existence of a protected characteristic is relevant to the question of whether continued occupation is (or would have been) reasonable. For example the applicants may be complaining of sexual or racial harassment from a neighbour, or they may have difficulties living in the accommodation due to a disability.

In an English case the decision maker was required to have a 'sharp focus' to the aspects of the duty and the following steps were required: [26]

• to recognise where the applicant has a disability

• to focus on specific aspects of any impairments to the extent that are relevant to the suitability of accommodation

• to focus on any disadvantages the applicant might suffer when compared to a person without those impairments

• to focus on the accommodation needs arising from those impairments and the extent the accommodations meets those needs

• to recognise if the applicant’s particular needs might require them to be treated more favourably than a person without a disability

• to review the suitability of the accommodation paying due regard to these matters.

The above may also apply if adapted to meet other characteristics protected under the Equality Act.