Court of Appeal: disability benefits are a form of “income” when assessing affordability

22 Oct 2019


The Court of Appeal has refused permission for a second appeal in an affordability case, holding that the Supreme Court’s decision in Samuels v Birmingham City Council [2019] UKSC 28 has provided the answer to the question whether a reviewing officer may take into account disability benefits when assessing whether a property was affordable – yes, she can.

In Samuels, the question was whether the reviewing officer was entitled to take into account subsistence benefits – those which provide a minimum level of income for essential living needs – when assessing affordability. Perhaps unexpectedly, the Supreme Court rejected Ms Samuels’ argument and held that all sources of income could be taken into account, provided that the applicant was left with sufficient income after housing costs to meet their (and their household’s) reasonable living expenses.

In Compton v Bexley London Borough Council, Mr Compton argued that disability benefits ought to be treated as if they were ring-fenced and therefore excluded from the affordability assessment or, alternatively, that it is potentially discriminatory to expect a disabled person to apply those benefits towards their housing costs.

Mr Compton’s appeal was dismissed by the County Court at Central London in October 2018. He sought permission for a second appeal from the Court of Appeal.

However, Asplin LJ refused permission, holding that:

  • The issue of whether disability benefits could be taken into account is “answered” by the decision in Samuels and therefore there was no important point of principle raised nor any other compelling reason for the appeal to be heard.
  • The discrimination point was not argued at first instance nor in the grounds of appeal (having been introduced in response to Samuels and therefore ought not to form the subject of a second appeal).

Although not a surprising decision, given that Samuels is perhaps not as clear as it could be, this clarification from the Court of Appeal about the status of disability benefits in affordability cases is welcome.

It is also a reminder about the importance of framing grounds of appeal (and statements of case more generally) which the court will use both to define the parameters of the case and to enforce limits as to the points which may be argued.

Matt Lewin represented Bexley LBC, instructed by Suzanne Mitchell.