Homelessness and ‘move on’ housing

The Court of Appeal recently considered the use of supported ‘move on’ housing in the exercise of homelessness duties. Matt Hutchings KC and Tara O’Leary look at the outcome.

The Court of Appeal has handed down judgment in Hodge v Folkestone and Hythe DC [2023] EWCA Civ 896. It confirms that supported ‘move on’ housing is capable of meeting the definition of ‘accommodation’ under Part VII of the Housing Act 1996 (‘HA 96’) and can therefore be used by local housing authorities to discharge their homelessness duties.

The judgment arises from an appeal under s.204 HA 96 challenging an intentional homelessness decision, but is of wider application to a range of duties under Part VII.

Ms Hodge lived in a bedsit provided by an organisation called Porchlight, which ran a project intended to assist single homeless people by supplying temporary accommodation whilst they accessed support and planned a move into longer-term accommodation. Folkestone and Hythe DC’s Part VI housing allocation scheme granted additional preference for persons moving on from schemes like Porchlight. Ms Hodge was granted a non-secure licence which was likely to have continued until she was ready to move to more permanent housing. Instead, she voluntarily gave it up and, after an extended period of sofa-surfing, applied to the local authority for assistance. It decided she was intentionally homeless because she had voluntarily left her Porchlight accommodation, which would otherwise have been reasonable for her to continue to occupy.

On s.204 appeal, Ms Hodge argued inter alia that she could not have become intentionally homeless from Porchlight because it was not ‘accommodation’ available for her occupation within the meaning of s.191(1) HA 96.

Amongst other arguments, she pointed to Birmingham City Council v Ali [2009] UKHL 36, which held that women occupying domestic violence refuges remain homeless within the meaning of s.175 HA 96 because a refuge is not accommodation which it is reasonable to occupy in the medium or long term. Ms Hodge suggested that Ali left open the question of whether a refuge – and, similarly, ‘move on’ housing – was capable of being ‘accommodation’ and argued that it was not. She also argued that a person could not become intentionally homeless from any accommodation which was not ‘settled’, such as temporary, non-secure housing.

Importantly, Ms Hodge accepted that the term ‘accommodation’ must have the same meaning across all provisions of Part VII. Therefore, if her arguments were correct, and ‘move on’ housing was not ‘accommodation’ at all, it would have meant that all persons living in similar schemes remain homeless within the meaning of s.175 and local authorities could not use projects like Porchlight to discharge Part VII duties, including the s.193 main housing duty.

Those arguments were dismissed by HHJ Parker sitting at Canterbury County Court, and have now been rejected by the Court of Appeal.

The Court did not accept the argument that there are categories of housing which cannot lawfully qualify as ‘accommodation’. Rather, it is a question of fact for local authorities to determine whether a place occupied by an applicant can be considered ‘accommodation’, as well as whether it would have been reasonable for the applicant to continue to occupy that place [73].

Further, there is no requirement that in order to meet the definition of ‘accommodation’, the accommodation must be ‘settled’. That is a concept invented by the courts which is relevant to the question of whether there is a causal connection between the loss of past accommodation and current homelessness, i.e. a different part of the intentional homelessness test [73].

Rather, the authorities showed that accommodation does not have to ‘have any quality except that of being fairly described as accommodation’: per Lord Hoffmann in R v Brent London Borough Council ex p Awua [1996] AC 55 (p.66-67) [24].

There was therefore no reason in principle why schemes like Porchlight were incapable of being ‘accommodation’. Folkestone and Hythe’s decision was upheld as lawful.

Matt Hutchings KC and Tara O’Leary are barristers at Cornerstone Barristers. They successfully represented the local authority, instructed by Alastair de Lacey of Folkestone and Hythe DC Legal Services