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HOUSING LAW
Oct 2019
Homelessness
Homelessness applications
Part VII Housing Act 1996
Approaching councils when a client is homeless or threatened with homelessness
5 Tests
5 tests the council will conduct
When you approach a council, they will be testing for 5 things. If the client doesn't satisfy all of them, the council may not accept the main housing duty for your client. They may, however, owe other duties...
Homeless or threatened homeless
Homeless or threatened homeless
Your client will be homeless if they have no accommodation they can legally live in, or if they cannot access their accommodation or park their mobile home somewhere. s171(1) & (2)
Your client will not have accommodation if it is not reasonable for her to continue to stay at a property.
s171(3)
Your client will be threatened with homelessness if it is likely she will become homeless within 56 days. Includes being served a s21 notice which expires within 56 days.
s171(4) & (5)
Family members
Accommodation will only be deemed available for the client's occupation if it is available for the client AND anyone else who normally lives with her as a member of her family.
Or can reasonably be expected to live with her.
s176
What about family members?
Violence
Violence
It is not reasonable to stay at a property if it is probable that this will lead to the client, or someone the client lives with, being subjected to violence or threats of violence that are likely to be carried out.
s177
Domestic violence is not limited to physical violence, but includes any abuse which may give rise to the risk of harm.
Yemshaw v Hounslow London Borough Council [2011] UKSC 3
Eligible for housing assistance
Eligible
A client is not eligible if they:
- have no recourse to public funds
- are subject to immigration control under Asylum and Immigration Act 1996
- are an otherwise eligible asylum seeker, but have accommodation available to them in the UK, no matter how temporary
s185
Priority need
The council will decide whether the client is in priority need for housing. Some circumstances will automatically make a client priority need, and some circumstances will require the client to make a case that they are vulnerable because of her circumstances.
para 8.3, Homelessness Code of Guidance
In discretionary circumstances, you will need to show that the client would be significantly more vulnerable than an ordinary person if made homeless. To make this decision the council must take into account any support services and family support the client has, and whether this would be provided on a consistent and predictable basis, if found non-priority need.
para 8.16, Homelessness Code of Guidance
Case Law
Automatically priority need
Automatic priority need
Your client is automatically in priority need if:
- she is pregnant
- she has dependent children who live with her
- she has become homeless because of an emergency such as flood, fire or other disaster
- she is 16 or 17 and owed a duty by the local authority under s20 of the Children Act 1989
- she is under 21 and a care-leaver, who was in care between the ages of 16 and 18 (unless she's a student)
Discretionary priority need
Discretionary priority need
You can argue your client is in priority need if she is vulnerable as a result of:
- old age, mental illness or learning disability or physical disability or other special reason
- being in care (if she's over 21)
- being in the forces
- serving a custodial sentence or been remanded or committed for contempt of court
- leaving accommodation because of violence from another person or threats of violence which are likely to be carried out
Equality Act 2010
Equality Act 2010
The council have to consider the Equality Act 2010 and their public sector equality duties towards people who have a protected characteristic.
If the client has a disability (or another relevant protected characteristic) the council should assess the extent of the disability and the effect of the disability, when taken together with anything else, on the applicant if and when homeless.
They will then need to decide whether the impact of this makes the client significantly more vulnerable as a result.
para 8.17, Homelessness Code of Guidance
Case Law
When cases go to court it creates case law which doesn't take the place of the tests in the Acts, but it does clarify and add some detail to the tests.
Hotak & Ors v London Borough of Southwark [2015] UKSC 30
Hotak
This involved 3 joint appeals of people who were deemed "not vulnerable," and therefore were not “priority need”
It helps clarify what "vulnerable" means for housing authorities. The court said anyone would be “vulnerable” when homeless but the test was “significantly more vulnerable than ordinarily vulnerable.” The comparison was not an ordinary homeless person but instead an ordinary person if made homeless. This ordinary person would be robust and healthy.
The court says assessment of vulnerability is contextual and practical, rather than a clinical, assessment of a person’s situation.
Mr Johnson
Mr Johnson’s homelessness application was rejected on the basis that he had not shown himself to be “less able to fend for [himself] than an ordinary homeless person”. The gist of his appeal was that “an ordinary homeless person” was the wrong comparator.
The court said the correct comparison was not an ordinary homeless person but instead an ordinary person if made homeless.
Mr Kanu
Mr Kanu had a disability and argued that the public sector equality duty (“PSED”) had not been complied with.
The Court confirmed that the PSED required a housing officer to “focus very sharply” on the disability, its extent, its effects and whether it rendered the applicant vulnerable. However, the Court emphasised that in many cases, a housing officer who conscientiously assessed “vulnerability” could comply with the PSED even without realising that it was engaged
Mr Hotak
Mr Hotak had learning difficulties and received significant help from his brother with daily activities. He was said not to be priority need because his brother would continue to look after him if they were street homeless. He argued that the council could not take support from his brother into account.
The court ruled that support could be considered, but that:
- the council should be satisfied that the support would be available on a “consistent and predictable basis”.
- a client may be vulnerable even with support.
- there should be no strong presumptions about what it was reasonable to expect a family member to do.
SS v London Borough Waltham Forest
SS v Waltham Forest
SS experienced severe abuse and, consequently, suffered from chronic mental and physical health problems. WF council accepted SS was disabled under the Equality Act 2010 and the disabilities arose from domestic violence, but they found her not priority need. The Public Sector Equality Duty was engaged.
The court held that WF had not applied the test of vulnerability. This was because they had not considered the risk of loss of specialist support and accommodation (specialist refuge).
Also, although WF had recognised SS had the protected characteristic of disability, they hadn't taken into account the protected charateristic of the female sex which was directly linked to domestic abuse.
Not intentionally homeless
Not intentionally homeless
A client would be homeless intentionally where homelessness was the consequence of a deliberate action or omission by them.
A deliberate act might be a decision to leave the previous accommodation even though it would have been reasonable for the client (and everyone in her household) to continue to live there. A deliberate omission might be non-payment of rent that led to rent arrears and eviction despite the rent being affordable.
s191
Bond v Leicester CC [2001] CA
Bond v Leicester CC
A fleeing mother and her children were found to be intentionally homeless, because the mother had not contacted the police or severed contact with the perpetrator.
The court said that the council had not considered whether or not it was reasonable for Ms. Bond to remain in the house, and "probable" violence was domestic violence under s177(1). She had been evicted for rent arrears when she didn't want to return to an address she was fleeing.
The court also said the fact she had not contacted the police or severed contact was irrelevant to whether she had made herself intentionally homeless or not.
Local connection
Local connection
Your client has a local connection with a borough if she:
- is or was in the past, normally resident there, and that residence was of her own choice; or,
- is employed there; or,
- has family associations living there; or,
- has special circumstances (includes support services).
s199(1)
Residence in temporary accommodation can contribute to a local connection. Guidance says normal residence should be 6 months of the last 12, or 3 years of the last 5. If your client is sofa-surfing and they have no other local connection, just residing in the borough currently would be enough.
para.10.5-10.14 Code of Guidance
Asylum seekers
A client will have a local connection is she was (at any time) provided with accommodation in a borough under s95 of the Immigration and Asylum Act 1999.
This is not the case if the client was then placed in another borough under s95. It is also not the case if she was placed in an accommodation centre in that borough under s22 of the Nationality, Immigration and Asylum Act 2002.
s199(6)&(7)
Care leavers
A client owed leaving care duties under s23C of the Children Act 1989 will have a local connection to the area of the children services authority.
Where a care leaver is under 21 and normally lives in a different area to that of a local authority that owes them leaving care duties, and has done for at least 2 years, including some time before they turned 16, the young person will also have a local connection in that area.
s199(8)-(11)
Detainees
Detention in prison (whether convicted or not) does not establish residency of choice in the area the prison is in, and so will not create a local connection. The same is true of those detained under the Mental Health Act 1983.
para 10.22 Code of Guidance
Violence
A client can only be referred to another borough under local connection if she will not run the risk of domestic violence in the other borough.
s198(2)(c)
It is the same if the client has suffered violence in a borough and it is probable that further violence of a similar kind would occur if she returned to the borough.
s198(2A)
A client should present in the borough she wants to be housed in, not the one she is fleeing. Councils will usually not house someone fleeing in the same borough she is fleeing from.
Possible duties
Possible duties owed to your client
The council will owe different duties to each client depending on the number of tests they pass, and the stage they are of homelessness.
A duty means the council must help your client in some way. This ranges from advice to providing accommodation.
You can ask for a decision on any duty to be reviewed.
Duty to provide information & advice
Advisory duty
Everyone
The council owes this duty to anyone in the borough.
They have to provide information and advice on:
- Preventing homelessness
- Securing accommodation when homeless
- The rights of people when homeless
- The duties of the council
- The help available for homeless people
- How to access that help
s179
Duty to make inquiries
Reason to believe client is homeless
As soon as a council has reason to believe your client is homeless or threatened with homelessness, they owe them the duty to make inquiries about whether the client:
- is eligible for assistance
- which duty they are owed
- whether they have a local connection
They must notify the client of their decision in writing.
s184
Interim duty
Reason to believe:
Eligible
Homeless
Priority need
If the council has reason to believe your client is homeless, eligible and in priority need, they will owe them this duty and need to provide emergency accommodation immediately.
s188(1)
This is owed even if the council thinks the client should be approaching a different council - the client should get emergency accommodation while the referral is made (s188(2); s199A(2)).
The Secretary of State recommends that the other council should respond to a referral within 10 working days.
(para 10.31 Code of Guidance)
Interim duty will end when the council notifies what other duty (if any) is owed, via a "s184 letter". If the client asks for a review of suitability of accommodation offered, the duty will continue until the outcome.
para 15.11 Code of Guidance
Initial duties
Once the council has determined the client is homeless/threatened with homelessness and eligible, they will have to work with the client on a personal housing plan, and begin the prevention duty (threatened with homelessness) or relief duty (homeless).
If they then decide the client has made themselves intentionally homeless, the prevention or relief duty would not necessarily come to an end, but a new duty would be owed under s190.
All notices to end a duty must be given in writing and can be reviewed on request by your client.
Eligible
Homeless/threatened
with homelessness
Personal Housing Plan
Personal housing plan
The council will have a duty to carry out an assessment.
They should identify what caused the homelessness or threat of homelessness, the housing needs of the client and any support they need to be able to secure and retain accommodation.
Then, the council must work with the client to develop a personalised housing plan which includes actions to be taken by the council and the client to prevent or relieve homelessness.
s189A
Deliberate and unreasonable refusal to complete any tasks that were agreed in the personal housing plan will end the prevention or relief duty.
s193B(2)
Prevention duty
Eligible
Threatened homeless
Local connection
The council must take reasonable steps to help the client stay in the accommodation.
This duty last for 56 days, or less if suitable accommodation is made available. The council cannot end the duty after 56 days it your client has been served with a s21 eviction notice, which has expired or expires in less than 56 days.
The duty also ends it your client becomes homeless as the relief duty would begin.
s195
Relief duty
Eligible
Homeless
Local connection
The council must take reasonable steps to help secure suitable accommodation, available for at least 6 months.
Duty lasts for 56 days, or less if suitable accommodation is made available. It can be extended at the council's discretion. The duty ends if the Main Duty starts.
s189B
If the client refuses an offer of suitable accommodation, the duty will end. The client must be given a reasonable amount of time to consider the offer and opportunity to view the property. The council must also take into account the support needs and vulnerabilities of the client.
para 14.5-14.12 Code of Guidance
Intentional homelessness
Intentional homeless
Where the client has a priority need but are intentionally homeless the council must provide advice and assistance to help them find accommodation for themselves and secure suitable accommodation for them for a period that will give them a reasonable chance of doing so.
s190
Eligible
Homeless
Priority need
Unintentionally homeless
Local connection
Main housing duty
If your client passes all 5 tests the council must make sure accommodation is available for the client.
s193(2)
This duty is ended if your client refuses a final offer of accommodation or refuses to work with the council.
s193(1A)
Eligible
Homeless
Priority need
Unintentionally homeless
Local connection
Ending duties/discharging duties
Ending duties
Different duties can end in different ways, this is also called "discharging duties". For specifics see the Housing Act 1996, Part VII.
However, there a couple of ways which we will likely come across, and need further explanation. These are through an offer of suitable accommodation or through deliberate and unreasonable refusal to co-operate.
Offers of accommodation
Offers of accommodation
The prevention or relief duty can be brought to an end by an offer of suitable accommodation. If this happens, it doesn't affect any further duties owed. So if the prevention duty is brought to an end by refusal of such an offer the client might still be owed the relief duty. and If the relief duty is ended in this way, the client might still be owed the main housing duty.
However, refusal of a final offer or Part 6 offer will preclude the client from being owed the main housing duty. If the offer was through the main housing duty, it will end the duty.
Suitability of accommodation
Suitable accommodation
A final accommodation offer, or a final Part 6 offer, must be suitable for the client and their household.
s193A(6)
The council needs to assess all relevant needs, requirements and circumstances. Location will always be a relevant factor.
The council have a continuing obligation to keep the suitability of accommodation under review, until such time as the accommodation duty is brought to an end.
B&Bs should be used as a last resort for clients with children, and for no more than 6 weeks.
Chapter 17, Code of Guidance
Location
Location
The council should, as far as reasonably practicable, secure accommodation within the borough. Where possible the council should try and retain links with schools, doctors, social workers and other key services and support. Commuting issues and key points in education, such as GCSEs, should be considered. Clients with a mental illness or learning disability should be considered carefully as they may be less able than others to adapt to disruption when placed in another borough.
Clients should be given a reasonable amount of time to consider offers of accommodation outside their borough.
para 17.47-17.62, Code of Guidance
Councils should have their own policies about how out of borough accommodation is allocated.
Violence
Where domestic violence or abuse is involved and the client is not able to stay in the current home, councils may need to consider the need for accommodation whose location can be kept secret and which has security measures to protect the occupants.
para 17.6, Code of Guidance
Where the client would be at risk of domestic abuse or other violence in the borough, there may be benefits of being accommodated elsewhere to reduce the risk of further contact with the perpetrator(s).
para 17.56, Code of Guidance
Violence
Final offer
A final accommodation offer must be an assured shorthold tenancy made by a private landlord of at least 6 months.
s193A(4)
The client must have been informed of the consequences of refusing the offer as well as the right to request a review of the suitability of the offer.
s193A(1)(b)
Part VI offer
Part 6 offer
A “final Part 6 offer” is a written offer under Part 6 of the Housing Act 1996, which states that it is a final offer.
s193A(5)
A Part VI offer will be an offer of housing register/social housing accommodation.
Deliberate/unreasonable refusal to co-operate
Deliberate & unreasonable refusal to co-operate
Deliberate and unreasonable refusal to complete any tasks that were agreed in the personal housing plan will end the prevention or relief duty.
s193B(2)
If this ends the prevention duty, the client may still be owed the relief duty if she becomes homeless (para 4.47 Code of Guidance). If the relief duty ends in this way, and the main housing duty would have otherwise applied (homeless, eligible and priority need), the council must secure accommodation for the client.
s193C
Warning
Before the duty is ended under this ground, the council must issue a warning informing the client that if they do not complete the tasks, the duty will be ended. There must be a reasonable time after the warning for the client to rectify the issue.
s193B(4)&(5)
Warning
Meaning of deliberate & unreasonable refusal
Meaning
The council must consider the needs of the client, in deciding whether refusal is unreasonable. Where a client appears not to be co-operating the council should review their assessment of the client’s case and the appropriateness of the personalised housing plan and explain the consequences of not co-operating before issuing a warning.
The council should notify any support services of any problems with co-operation before ending a duty.
The council should make sure the refusal to co-operate is not down to a mental health condition or other condition for which they are not receiving support.
para 14.49-14.53, Code of Guidance
https://www.openrent.co.uk/
http://www.dssmove.co.uk/
https://www.gumtree.com/
https://www.spareroom.co.uk/
https://www.zoopla.co.uk/to-rent/
NEED A LOCAL CONNECTION - see borough's allocation policy
https://homefinderuk.org/
https://www.locata.org.uk/LocataHome/login.aspx
Dependent on borough. Ask the housing department.
YMCAs
https://www.p3charity.org/
The Green Room - 07885 220522
Timeline
http://www.nationaldomesticviolencehelpline.org.uk/
0808 2000 247
The Emma Project - 07590 712872
Daria House - 07884 886901
https://www.streetlink.org.uk/#
http://www.nosecondnightout.org.uk/help-a-rough-sleeper/
0870 383 3333