Assessing eligibility for housing assistance - is there anything similar to the Kerr principle?

Is there anything similar in housing law to the Kerr principle which we refer to in benefits casework, whereby an LA could request details of a partner’s earnings from HMRC, to confirm their eligibility for homelessness assistance?

My client is an EEA national with Pre-Settled status and is separated from her EEA husband, they are still married. He has Settled status. He works in the UK, regularly with some small gaps I understand, for an agency, and he doesn’t claim benefits. Her only route to RTR (as she has no recent or current work and no derived rights) is through her being a family member of a qualified person - i.e. her husband is a worker. Her benefits are in payment, but the issue is trying to get her assessed as eligible for homelessness assistance in relation to sustaining her private rented tenancy. A previous LA homelessness decision found that she was ineligible as she does not have RTR; I think this is incorrect.

She isn’t estranged from her husband and has some functional contact with him. I spoke to him a few times and he was due to provide me with more recent payslips, he provided a P60 for last tax year (£9.6k earnings in 22/23). But now he’s not replying to any communication. Can the LA be asked to make enquiries about his earnings to HMRC as my client doesn’t have the evidence of his earnings herself? TIA

Edited for clarity

I think you can rely on paragraph 61 of Kerr to argue that the principle extends far beyond social security law and must apply to an application for housing assistance to a local authority

61. Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:

“A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action.”

The LA and HMRC cannot hide behind data protection because paragraph 33 of Sch 1 of the 2018 Data Protection Act provides that data can be processed if

(a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),
(b) is necessary for the purpose of obtaining legal advice, or
(c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Homelessness enquiries are not really dealt with under a burden of proof. The effect of s184 Housing Act 1996 is to put the Council under a duty to “make such inquiries as are necessary to satisfy themselves [...] whether he is eligible for assistance”. This is not dissimilar from Kerr in that its a neutral process of inquiry rather than a question of who can prove this case.

Where a Council has failed to make such inquiries as are necessary, the Council might be in error of law, however appeal rights are different in the homelessness context in that all that will happen is that the Judge will set the decision aside and order the Council to remake it, having made the necessary inquiries. You are unlikely to end up in a scenario where you are actually dealing with the burden of proof directly in a forensic context.

You can argue that the Council asking HMRC for the national insurance records is a ‘necessary inquiry’ but the simple fact is that HMRC are under no obligation to provide information about a third party to the Council. So probably you just end up in a position where the Council has to make a decision based on such information as it available.

The significance of Kerr in these cases is that the DWP has the ability to review NI records directly, and you can therefore build a case at FtT based on their failure to do so. The same is not true of a local authority.