| SPOTLIGHT |
LexisPSL Local Government and Elizabeth England of 42 Bedford Row set out the duties owed by local authorities to those presenting as homeless, and the particular issues that affect elderly and vulnerable adults.
Local authority duties
Part VII of the Housing Act 1996 (HA 1996) sets out the statutory framework for assessing whether or not a person will be owed a duty, and if so what duty, by a local authority if they are homeless. References in this article to various sections refer to sections of the HA 1996.
The assessment to identify what duty (if any) is owed depends on whether that individual is;
References: HA 1996, ss 185-187; HA 1996, ss 175-178 HA; 1996, s 189; HA 1996, s 191; HA 1996, s 199
When a person presents themselves as homeless to the local authority and the authority 'has reason to believe' that a person is homeless, eligible and in priority need, they will provide immediate interim accommodation pending a full decision as to what duty is owed.
References: HA 1996, s 188(1)
If, after a full consideration of the case, an individual meets all of the criteria above they are owed what is usually referred to as 'the full housing duty', ie there will be a duty to provide that person with a home (HA 1996, ss 193,195). Otherwise, an individual might be owed a duty limited to short-term accommodation (eg HA 1996, s 190(2) where a person is intentionally homeless) or 'advice and assistance' (eg HA 1996, s 190(3) where a person has no priority need).
The particular issues relevant to elderly and vulnerable people are set out below.
'Eligible'
Part VII of the Act includes provisions that make certain persons from abroad ineligible for housing assistance. The regulations that set out which classes of persons from abroad are eligible or ineligible for housing assistance are the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (the Eligibility Regulations)
In R (on the application of MT) v Oxford City Council, the Administrative Court held that in circumstances where the homeless person had no capacity to understand an offer of accommodation there was no duty to accommodate him. He was, in effect, not eligible for accommodation.
References: R (on the application of MT) v Oxford City Council [2015] EWHC 795 (Admin)
'Homeless'
A person is homeless if he has no accommodation available for his occupation.
Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him.
References: HA 1996, ss 175(1), 176(1)
The Code of Guidance envisages that elderly people might be impacted by the following circumstances:
'Priority need for accommodation'
The main homelessness duties in HA 1996, ss 193(2) and 195(2) (to secure accommodation or take reasonable steps to prevent the loss of accommodation) apply only to applicants who have a priority need for accommodation.
HA 1996, s 189(1) and the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) provide the categories of applicant who have a priority need for accommodation, among whom are listed 'a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside'.
Old age is not sufficient to establish vulnerability. Similarly, there are guidelines in the Code of Guidance for joint working with social services for disabled and ill people. It is a matter of judgment for the local authority whether the applicant's circumstances make him or her vulnerable.
Following Hotak v LB Southwark et al, the test for vulnerability includes:
(i) whether the applicant is under a disability (or has another relevant protected characteristic),
(ii) the extent of such disability,
(iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and
(iv) whether the applicant is as a result 'vulnerable'.
In Wales, the Code of Guidance indicates that applicants over 60 years of age are automatically vulnerable.
References: Hotak v LB Southwark et al [2015] UKSC 30 at para 78
'Intentionally homeless'
A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
References: HA 1996, s 191
The accommodation is the person's last settled accommodation. This might affect an elderly person who leaves their home (for example by surrendering their tenancy) in favour of living with family, and then whose family cannot cope with the elderly person's care needs and ask them to leave.
In Haile v Waltham Forest LBC an applicant who had applied for accommodation as a homeless person had not become homeless intentionally where the cause of her current state of homelessness was not her surrender of her original accommodation but a later event which would have caused her to become homeless in any event.
References: Haile v Waltham Forest LBC [2015] UKSC 34
'Local connection'
People may have a local connection with a district because of residence, employment or family associations in the district, or because of special circumstances.
For elderly and vulnerable persons, special care should be made to emphasise family connections together with any support package that exists or is contemplated pursuant to the Care Act 2014.
Suitability of accommodation
Suitability of accommodation is governed by HA 1996, s 210. This section points to the relevant guidance, which is set out in The Homelessness (Suitability of Accommodation) Order 1996 (SI 1996/3204).
The Code of Guidance is the most useful reference for factors which the local authority must take into account, specifically at Chapter 17.
Of note for elderly and vulnerable applicants are issues of long-term affordability. This will be especially important for those people who are facing a reduction in their income owing to pension pressures.
The space, arrangement and location of accommodation is also important, for example it would not be appropriate to allocate an 8th floor flat which had no lift access to a person with mobility issues.
In Poshteh v Royal Borough of Kensington and Chelsea the test for suitability of accommodation was determined to be subjective, according to the particular needs of the applicant. This is particularly useful for elderly and vulnerable applicants seeking to rely on particular needs.
References: Poshteh v Royal Borough of Kensington and Chelsea [2015] EWCA Civ 711
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