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Assisting the homeless

Assisting the homeless 20541489 s 146x219LexisPSL Local Government, in partnership with Elizabeth England of 42 Bedford Row, look at how local authorities from 3 April are expected to assist the homeless.

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Homelessness legislation

The primary homelessness legislation, Part VII of the Housing Act 1996 (HA 1996), provides the statutory underpinning for action to prevent homelessness and provide assistance to people who are threatened with or actually homeless.

The Homelessness Reduction Act 2017 (HRA 2017) entered into force on 3 April 2018, significantly reforming England’s homelessness legislation. For background reading on main homelessness duties prior to the implementation of the HRA 2017, see Practice Note: Assisting the homeless pre-3 April 2018 applications.

The revised regime places duties on local authorities to intervene at earlier stages to prevent homelessness in their areas. It also requires local housing authorities (LHAs) to provide homelessness services to all those affected, not just those who have ‘priority need’. These include:

  • an enhanced prevention duty extending the period a household is threatened with homelessness from 28 days to 56 days, meaning that LHAs are required to work with people to prevent homelessness at an earlier stage
  • a new duty for those who are already homeless so that LHAs will support households for 56 days to relieve their homelessness by helping them to secure accommodation

Under the Homelessness Act 2002, all LHAs must have in place a homelessness strategy based on a review of all forms of homelessness in their district. The strategy must be renewed at least every five years. The social services authority must provide reasonable assistance. See Practice Note: Homelessness services and assessment duties.

Applications made after 3 April 2018

The elements of significant change which are set out in the HRA 2017 include:

- duty to refer

- duty to provide advisory services

- applications and inquiries

- assessments and personalised housing plans

- prevention duty

- relief duty

- main housing duty

- suitable accommodation—see Practice Note: Homelessness suitability of accommodation

- intentional homelessness—see Practice Note: Intentional homelessness

- local connection and referrals to another authority—see Practice Note: Homelessness and local connection

- reviews and appeals—see Practice Note: Homelessness—the review and appeal procedures

This article covers the following elements:

- the duty to provide information and advice

- the duty to assess and agree a personalised housing plan

- the prevention duty

- the relief duty

- the interim housing duty

- discretionary housing powers

- the main housing duty

- assistance to those not owed the main housing duty

The duty to provide information and advice

Advice and information about homelessness and the prevention of homelessness

The obligation to provide information and advice applies generically whether or not a person has made an application to the LHA or would be eligible to do so. This is in addition to the obligation to provide advice and assistance to an unsuccessful homeless applicant.

It is envisaged that generic advice for those who are not eligible for assistance could be through faith groups and charities. LHAs are otherwise encouraged to:

  • provide information themselves
  • ensure that it is provided by another organisation
  • ensure that it is provided in partnership with another organisation

LHAs are required to monitor the provision of information and advice to ensure that it continues to meet the needs of the district, and to ensure that it is up-to-date, and to ensure that it continues to be fit for purpose.

The information and advice concerns the prevention of homelessness, securing accommodation when homeless, providing advice in relation to a person’s rights to assist them to avoid homelessness, and how to access that help.

The information and advice must be up-to-date, comprehensive and tailored to meet the needs of particularly vulnerable groups applicants. Through the information and advice it is hoped that people will be able to take action for themselves to avoid homelessness and to seek assistance from the LHA in good time.

The specific advice that LHAs are expected to provide will concern:

  • tenants’ rights and rights of occupation
  • what to do about harassment and threats of illegal eviction
  • rights to benefits including assistance with making claims as required
  • how to protect and retrieve rent deposits
  • rent and mortgage arrears
  • how to manage debt
  • help available to people at risk of violence and abuse
  • grants available for housing repair and/or adaptation
  • how to obtain accommodation in the private rented sector—eg details of landlords and letting agents within the district, any accreditation schemes, and information on rent guarantee and deposit schemes
  • how to apply for social housing
  • how to access shared-ownership or other low-cost home ownership schemes

Vulnerable groups include persons released from prison or youth detention accommodation, care leavers, former members of the regular armed forces, victims of domestic abuse, persons leaving hospital, persons suffering from a mental illness or impairment, and any other group that the authority identifies as being at particular risk of homelessness in the district.

The LHA will have to work with statutory and non-statutory service providers to identify vulnerable groups and to develop an appropriate provision to meet that need.

HA 1996, s 179, as amended by HRA 2017, s 2, also extends a discretion to LHAs to prevent homelessness by the provision of:

  • a grant or a loan
  • access to local authority accommodation
  • furniture or other goods either by gift loan or otherwise;

and by making available local authority staff to assist in avoiding homelessness.

The duty to assess and agree a personalised housing plan

HRA 2017, s 3 introduced a new section 189A to the HA 1996.

If the LHA is satisfied that a person is:

  • homeless, or threatened with homelessness
  • eligible for assistance

they must make an assessment of the applicant’s case. If the applicant is not eligible for assistance or if the authority is satisfied that they are not homeless or threatened with homelessness within 56 days, they must be given a written section 184 notification of the decision reached. In some instances, further enquiries will need to be made to make a determination on these issues.

The Homelessness code of guidance for local authorities (2018 Code), Ch 11.5 explicitly states:

‘applicants who have been served a valid section 21 notice to end an assured shorthold tenancy of their only available home, which expires within 56 days, are threatened with homelessness.’

LHAs should adopt a collaborative approach, taking account of the applicant’s needs and making all reasonable efforts to engage an applicant.

The assessment must be carried out at an interview.

The assessment of circumstances and needs

Regard must be taken of the assessment that is made under HA 1996, s 189A when determining whether a person has become homeless intentionally. It is therefore a vital duty for both the LHA and the applicant.

The authority’s assessment of the applicant’s case must include an assessment of:

  • the circumstances that caused the applicant to become homeless or threatened with homelessness
  • the housing needs of the applicant including, in particular, what accommodation would be suitable for the applicant and any ‘other relevant persons’ with whom the applicant resides or might reasonably be expected to reside, and
  • what support would be necessary for the applicant and any other relevant persons to be able to have and retain suitable accommodation

Housing circumstances

This will usually include enquiring into the applicant’s accommodation history at least as far back as their last settled address, and the events that led to them being threatened with or becoming homeless. LHAs should ensure staff have sufficient skills and training to conduct assessments of applicants who may find it difficult to disclose their circumstances, including people at risk of domestic abuse, violence or hate crime.

Housing needs

This will need to consider the individual members of the household, and all relevant needs. This should include an assessment of the size and type of accommodation required, any requirements to meet the needs of a person who is disabled or has specific medical needs, and the location of housing that is required. The applicant’s wishes and preferences should also be considered and recorded within the assessment, whether or not the housing authority believes there is a reasonable prospect of accommodation being available that will meet those wishes and preferences.

Support needs

This should be holistic and comprehensive, and not limited to those needs which are most apparent or have been notified to the housing authority by a referral agency. LHAs should not use a tick-box or checklist approach. Some applicants will identify care and support needs that cannot be met by the housing authority or which require health or social care services to be provided alongside help to secure accommodation. Housing authorities should be mindful of duties under the Care Act 2014 (CA 2014), including those relating to assessment and adult safeguarding, and the use of CA 2014 powers to meet urgent care and support needs where an assessment has not been completed.

Assessment

The assessment must be carried out in a way that is flexible to the needs of the applicant. It is an individual and interactive process. LHAs must not rely on online services or processes. There should be at least one face-to-face interview. If that is not possible, an assessment might be completed over the telephone or with the assistance of a partner agency. The LHA should be prepared to be flexible to meet the needs of particular applicants.

A decision under HA 1996, s 189A must be notified to the applicant in writing.

Rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. However, where there is no risk of homelessness in the foreseeable future the housing authority should offer advice and assistance to the applicant as appropriate.

LHAs will also need to keep in mind the duty to refer.

The requirement to keep a case under assessment will come to an end when the LHA decides that it owes no duty to the applicant (HA 1996, s 189A(9)).

The personalised housing plan

After the assessment has been made, the LHA and the applicant must try to agree:

References:

HA 1996, s 189A(4)

- any steps the applicant is to be required to take for the purposes of securing that the applicant and any other relevant persons have and are able to retain suitable accommodation, and

- the steps the authority are to take under HA 1996, Pt VII for those purposes

While the personalised housing plan will follow from the findings of the assessment, the 2018 Code, Ch 11.24 suggests that both the assessment and the personalised housing plan should be communicated to the applicant at the same time so that the position is clear.

However, any delay in notification must not prevent an LHA from taking steps to assist the applicant where necessary (eg where there is an imminent risk of eviction).

What are reasonable steps?

LHAs and applicants should work together to identify practical and reasonable steps that can be taken by each to help the applicant retain or secure suitable accommodation.

There are two categories of steps:

- steps that the applicant is required to take (mandatory steps) (HA 1996, s 189A(4)(a))

- recommended steps which the applicant is advised to take (recommended steps) (HA 1996, s 189A(7))

Mandatory steps should be limited to those which the housing authority considers are required in order to prevent or relieve homelessness. The plan must set out clearly which steps are mandatory and which are recommended. This is essential, because the relief and prevention duties can be ended by an applicant’s failure to comply with a mandatory step. This is likely to be a trigger for legal challenge.

There is no tick-box or checklist approach. Each case will be different, but LHAs are expected to develop toolkits for common problems which can be tailored to the individual’s needs. LHAs may be tempted to have a series of precedent letters that they simply give to an applicant, but this would not constitute a personalised housing plan. There will be some cases for which the circumstances can be summarised quickly within a ‘cut and paste’ style precedent which has been adapted for an applicant. Other cases will take a significant effort and investment of time according to the nature and complexity of the case.

It is important that personalised housing plans are realistic. LHAs can take account of the local housing market and the availability of support services, as well as the applicant’s needs and their wishes. The LHA may have to contact third parties to determine whether certain support or facilities are available for the applicant. The applicant’s permission should be sought in advance of those enquiries.

The 2018 Code, Ch 11.20 says:

‘a plan which limited the search for accommodation to a small geographic area where the applicant would like to live would be unlikely to be reasonable if there was little prospect of finding housing there that they could afford. The plan might instead enable the applicant to review accommodation prices in their preferred areas as well as extending their home search to more affordable areas and property types. In their interactions with applicants, housing authorities are encouraged to provide sufficient information and advice to encourage informed and realistic choices to be identified and agreed for inclusion in the plan.’

The types of steps that are envisaged include, but are not limited to:

  • attempting mediation/conciliation where an applicant is threatened with parent/family exclusion
  • assessing whether applicants with rent arrears might be entitled to Discretionary Housing Payment
  • providing support to applicants, whether financial or otherwise, to access private rented accommodation
  • assisting people at risk of violence and abuse wishing to stay safely in their home through provision of ‘sanctuary’ or other measures
  • helping to secure or securing an immediate safe place to stay for people who are sleeping rough or at high risk of sleeping rough

The 2018 Code has a heavy emphasis on agreement, as this will improve the likelihood that the plan will be successful in preventing or relieving homelessness.

If an agreement is reached between the LHA and applicant for the personalised housing plan then this must be recorded by the LHA in writing and the record provided to the applicant.

References:

HA 1996, s 189A(5)

If no agreement is reached, then the LHA must record so in writing and provide that record to the applicant:

References:

HA 1996, s 189A(6)

- why they could not agree

- any steps the authority consider it would be reasonable to require the applicant to take, and

- the steps the authority are to take under HA 1996, Pt VII for those purposes

In the case of agreement, or the absence of agreement, the LHA may elect to record the advice that they have given to the applicant on what steps they consider it would be beneficial for the applicant to take, though that advice will not be binding on the applicant.

References:

HA 1996, s 189A(7)

If the LHA’s assessment of the applicant changes, or if the agreement is amended, or any agreed step is no longer appropriate, then this must be recorded in writing and a copy of that record must be provided to the applicant.

References:

HA 1996, s 189A(10)

If the LHA is unable to provide a copy of a document to an applicant then it is permissible to make that document available to the applicant for collection at the LHA office.

References:

HA 1996, s 189A(12)

Applicants have a right under HA 1996, s 202 to request a review of the reasonable steps the housing authority has included within their personalised housing plan within the prevention and relief stages. Housing authorities should encourage applicants to raise any concerns they have about their plan and work to resolve disagreements to minimise the occasions on which the applicant will feel the need to request a review.

HA 1996, s 189A refers to the need to ‘keep under review’ the assessment and personalised housing plan. This is distinct from the applicant’s right to a statutory review. A review, under the obligation to ‘keep under review’ can be conducted in any way that is appropriate in the circumstances, in conjunction with the applicant. The requirement to review a case, the appropriateness of any agreement reached, and the appropriate steps, will come to an end when the LHA decides that it owes no duty to the applicant.

References:

HA 1996, s 189A(9)

If the applicant believes that there is a factual error in the assessment this will trigger a review of the assessment and the plan under the obligation to ‘keep under review’. Equally, if the applicant stops engaging then this will trigger a review of the assessment and the plan, under the obligation to ‘keep under review’ as opposed to a statutory review under HA 1996, s 202.

References:

HA 1996, s 189A(9)

If a plan is amended and the applicant has failed to take a step that had previously been agreed but is subsequently removed, there is no sanction for the applicant having failed to take that step after the written notification is given.

The relationship between the duty to assess and agree a personalised housing plan and the prevention and relief duties

The priority for the LHA must be to prevent homelessness. This applies whether or not the applicant has a local connection to their area.

The prevention and relief duties (outlined below) may take place in parallel with the assessment process and the personalised housing plan. In some cases, successful prevention or relief will have been largely achieved before the assessment and personalised housing plan have been completed and the applicant has been informed in writing. Where this is the case, the record of actions taken might be included in the section 189A assessment, while any further steps needed to sustain the accommodation arrangements are included in the personalised housing plan.

If the applicant is actually homeless the authority may refer them to another authority where they have a local connection, and must provide copies of the assessment, and any revisions to it that have been notified to the applicant, as part of the referral arrangement. If the housing authority has agreed a personalised housing plan with the applicant they should also forward the plan to the notified authority if it has relevance, and with the applicant’s consent.

The assessment and the personalised housing plan must be kept under review during the prevention and relief duties. It is advisable to agree with the applicant a date on which the assessment and personised housing plan will be reviewed. Timescales will keep the process transparent and lawful. The prevention and relief duties cannot be ended where an applicant fails to comply with a recommended step.

The prevention duty

The prevention duty places a duty on housing authorities to work with people who are threatened with homelessness within 56 days to help prevent them from becoming homeless. If the LHA are satisfied that a person is:

References:

HA 1996, s 195

  • threatened with homelessness, and
  • eligible for assistance

the housing authority is obliged to take reasonable steps to help the applicant either remain in their existing accommodation or secure alternative accommodation.

HA 1996, s 195(2) says:

‘The authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation.’

The first priority is to keep people in their homes, or if this is not possible, then to move the applicant to a suitable property in a planned way.

The LHA cannot refer an applicant to another LHA during the prevention duty, even if the conditions for referral are met. This may mean that LHAs will be obliged to assist applicants who live away from the district. One step in the personalised housing plan may be to have the applicant apply to their own LHA. It is therefore essential for LHAs to establish protocols with other LHAs.

If an LHA is successful in assisting an applicant to prevent homelessness, but the applicant’s needs are such that there is a continuing risk of homelessness, then the LHA will want to work with other agencies to ensure that support is put in place to assist that person for the future prevention of homelessness.

If the prevention duty is unsuccessful in preventing homelessness then the relief duty should be considered (see below).

The LHA can continue with the prevention or relief duty for longer than 56 days as long as no other duties take precedence.

If the applicant is:

  • homeless
  • eligible for assistance
  • in priority need for assistance, and
  • not intentionally homeless

LHAs are not entitled to operate a blanket policy to end the prevention or relief duty after 56 days where there is a discretion to extend it and the circumstances are such to warrant it.

Where the LHA is not satisfied that they will owe the main HA 1996, s 193(2) duty to the applicant they may wish to continue the prevention or relief duty for longer.

Considerations may include:

  • the needs of the applicant
  • the risk of the applicant sleeping rough
  • the prospects of securing accommodation within a reasonable period
  • the resources available to the LHA
  • any wider implications of bringing the duty to an end (eg in the case of an applicant who has dependent children and who became homeless intentionally where Children Act duties may apply if accommodation could not be secured)

Section 21 notices

Special rules apply where an applicant has received a notice seeking possession pursuant to section 21 of the Housing Act 1988 (HA 1988).

The 56-day period does not apply where the applicant has been given a valid section 21 notice that will expire within 56 days, or has expired, and is in respect of the only accommodation that is available for the applicant’s accommodation.

Where the LHA is satisfied that, despite the section 21 notice, the landlord has agreed not to pursue possession, and there is a reasonable prospect of the accommodation being available for at least six months, the prevention duty may be ended.

References:

HA 1996, s 195(8)(a)

The relief duty

HA 1996, s 189B, inserted by HRA 2017, s 5, contains the relief duty. This requires housing authorities to help people who are homeless to secure accommodation.

This duty arises where the LHA is satisfied that the applicant is:

References:

HA 1996, s 189B(1)

  • homeless, and
  • eligible for assistance

Unless the LHA refers the application to another local housing authority in England, the LHA must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least:

References:

HA 1996, s 189B(2)

  • six months, or
  • such longer period not exceeding 12 months as may be prescribed

If the LHA is satisfied that the applicant is:

  • homeless
  • eligible for assistance, and
  • in priority need for accommodation

the LHA is obliged under HA 1996, s 188(1) to provide interim accommodation while the relief duty is fulfilled.

If the applicant has no local connect to the district but the LHA is satisfied that the applicant is:

References:

HA 1996, s 189B(2)

  • homeless
  • eligible for assistance, and
  • in priority need for accommodation

the LHA must consider its duties under HA 1996, s 198(A1) which contains the duty to refer to another LHA.

The reasonable steps which must be taken by the applicant and the LHA are contained in the personalised housing plan, drawn up and kept under review under HA 1996, s 189A. Regard must be had to the assessment and the personalised housing plan while fulfilling the relief duty.

Particular care should be given to those who are rough sleeping while fulfilling the relief duty as they will have particular support needs. Specific relief duty considerations in relation to applicants who are sleeping rough (or are at imminent risk of sleeping rough):

- working with other agencies and/or commissioned services—in ensuring rough sleepers are aware of, and have support to seek, housing assistance from the authority and in the provision of appropriate accommodation and/or support

- using discretionary powers to secure emergency accommodation to prevent nights on the streets, taking into account the risk of harm applicants may face—if the authority does not have reason to believe that the applicant may have a priority need and has not therefore provided interim accommodation under HA 1996, s 188(1)

- remembering that normal residence does not require a settled address and may include periods sleeping rough—if using discretion to enquire into whether an applicant has a local connection

If the LHA is successful in assisting the applicant to prevent homelessness, but the applicant’s needs are such that there is a continuing risk of homelessness, then the LHA will want to work with other agencies to ensure that support is put in place to assist that person for the future prevention of homelessness.

The relief duty comes to an end after 56 days. If the LHA has the information it requires to make a section 184 decision on day 57, it should not delay in notifying the applicant. However, if further inquiry is required then the LHA has a maximum of 15 days after the 56 days to notify the applicant of its decision.

References:

2018 Code, Ch 14.16

Relationship between the relief duty and the duty to assess cases of homelessness or threatened homelessness

It is advisable to refrain from issuing a section 184 notification until the relief duty has come to an end. This is because the duty to accommodate under HA 1996, s 193 cannot be engaged until after the relief duty has come to an end. If this duty is owed, it will detract from the Relief duty.

It may be tactically advantageous to an LHA to issue a section 184 notification if they are minded to owe the applicant a duty under HA 1996, s 190 (ie where the applicant is intentionally homeless), because it will alert the applicant to the fact that a full housing duty is not going to be owed. It would give an opportunity to review the personalised housing plan, and focus the applicant’s mind on relieving their homelessness

If the LHA has provided interim accommodation under HA 1996, s 188 and subsequently finds that the applicant does not have a priority need during the relief duty stage, a section 184 notification that neither the main housing duty nor the duty under HA 1996, s 190 will be owed once the relief duty ends will bring the section 188 duty to an end.

References:

HA 1996, s 188(1ZA)(b)

The relief duty will continue until it ends in one of the prescribed circumstances.

Ending the prevention and relief duties

The prevention duty and the relief duty are brought to an end in one of seven prescribed statutory circumstances.

References:

HA 1996, ss 195 and 189B

The prescribed statutory circumstances which bring the duties to an end are:

- the LHA is satisfied that the applicant has suitable accommodation available for occupation and a reasonable prospect of suitable accommodation being available for at least six months from the date of the notice—note that the Secretary of State has a power to increase this minimum period up to a maximum of 12 months (HA 1996, ss 195(8)(a) and 189B(7)(a))

- the housing authority has complied with the prevention or relief duty and 56 days have passed—regardless of whether the applicant is still threatened with homelessness in the case of the prevention duty or whether they have secured accommodation in the case of the relief duty (HA 1996, ss 195(8)(b) and 189B(7)(b))

an applicant who was owed the prevention duty has become homeless (HA 1996, s 195(8)(c))

- the applicant has refused an offer of suitable accommodation and, on the date of refusal, there was a reasonable prospect that suitable accommodation would be available for the minimum prescribed period (HA 1996, ss 195(8)(d) and 189B(7)(c))

- the applicant has become homeless intentionally from any accommodation that has been made available to them as a result of reasonable steps taken by the housing authority during the prevention or relief duty, whichever is relevant (HA 1996, ss 195(8)(e) and 189B(7)(d))

- the applicant is no longer eligible for assistance (HA 1996, ss 195(8)(f) and 189B(7)(e))

- the applicant has withdrawn their application for homelessness assistance (HA 1996, ss 195(8)(g) and 189B(7)(f))

In addition:

  • the prevention duty will end where the applicant has become homeless
  • the relief duty will end when:

- 56 days has passed and the LHA is satisfied that the applicant has a priority need and is homeless unintentionally (HA 1996, s 189B(4)), or

- on refusal of a final accommodation offer (HA 1996, s 189B(9)), or

- on acceptance of a Part 6 offer (HA 1996, Pt VI)

- on service of a notice under HA 1996, ss 193B or 193C (notices in cases of applicant’s deliberate and unreasonable refusal to co-operate)

The LHA is obliged to notify the applicant that the particular duty has come to an end.

Deliberate and unreasonable refusal to co-operate

Both the prevention and relief duties can be brought to an end if an applicant deliberately and unreasonably refuses to take any of the steps in their personalised housing plan that were either agreed, or set out for them where agreement could not be reached.

References:

HA 1996, ss 193B and 193C

The LHA must issue a written warning notice which sets out:

References:

HA 1996, s 193B(4)–(5)

  • if the applicant deliberately and unreasonably refuses to take any of the steps in their personalised housing plan, the LHA may bring the prevention or relief duty to an end
  • the warning must explain the consequences of a notice being given and the housing authority must allow a reasonable period after the warning is given before issuing a notice
  • LHAs should ensure sufficient time is given to allow the applicant to rectify the non-co-operation

LHAs are required to develop a procedure to be followed when issuing notices bringing their prevention or relief duties to an end under HA 1996, s 193B(2). The procedure must:

- be in writing

- be kept under review, and

- make provision for the decision to give a notice under HA 1996, s 193B(2) to be made by an officer of the LHA and authorised by an appropriate person

If the applicant continues to deliberately and unreasonably refuse to take any of the steps, then the LHA can issue a notice ending the prevention or relief duty. For further reading, see: 2018 Code, Ch 14.56.

A notice under HA 1996, s 193B must:

- explain why the housing authority are giving notice and its effect

- inform the applicant of their right to request a review of the decision to issue the notice (under HA 1996, s 202(1))

- inform the applicant that a request for a review must be made within 21 days of being notified of that decision, or such longer period as the housing authority may allow in writing (under HA 1996, s 202(3))

Regulations relating to the procedure to be followed by LHAs in connection with notices under HA 1996, s 193B are set out in the Homelessness (Review Procedure etc.) Regulations 2018, SI 2018/223—these relate to decisions to issue a notice.

The original decision to issue the notice must be made by an officer of the housing authority and then receive authorisation by an appropriate person. An ‘appropriate person’ is someone of at least an equivalent seniority to the officer who made the original decision to issue a notice, and they must:

  • work for the housing authority or local authority, and
  • not have been involved in the original decision to issue the notice

For further reading, see: 2018 Code, Ch 9.16–9.20.

The ending of the prevention duty under HA 1996, s 193B will not affect the LHA’s assessment of what duties are owed if the applicant subsequently seeks help having become homeless.

For applicants who are eligible for assistance, unintentionally homeless and have a priority need, the ending of the relief duty under HA 1996, s 193B will mean that the main housing duty under HA 1996, s 193 will not apply, but the authority must ensure that accommodation is available for occupation by the applicant.

References:

HA 1996, s 193C(3)–(4)

Meaning of deliberate and unreasonable refusal

The LHA must have regard to the particular circumstances and needs of the applicant, whether or not identified in the assessment under HA 1996, s 189A, in deciding whether refusal by the applicant is unreasonable.

Reference:

HA 1996, s 193B(6)

Where an applicant appears not to be co-operating, the LHA should review its assessment of the applicant’s case and the appropriateness of the steps in the personalised housing plan.

Reference:

HA 1996, s 189A(9)

The LHA should be satisfied of the following before ending the prevention or relief duty under HA 1996, ss 193B and 193C:

  • the steps recorded in the applicant’s personalised housing plan are reasonable in the context of the applicant’s particular circumstances and needs
  • the applicant understands what is required of them in order to fulfil the reasonable steps, and is therefore in a position to make a deliberate refusal
  • the applicant is not refusing to co-operate as a result of a mental illness or other health need, for which they are not being provided with support, or because of a difficulty in communicating
  • the applicant’s refusal to co-operate with any step was deliberate and unreasonable in the context of their particular circumstances and needs. For example, if they prioritised attending a job centre or medical appointment, or fulfilling a caring responsibility, above viewing a property, this is unlikely to constitute a deliberate and unreasonable refusal to co-operate. However, if the applicant persistently failed to attend property viewings or appointments without good reason, or they actively refused to engage with activity required to help them secure accommodation, then this might be considered deliberate and unreasonable refusal to co-operate

For further reading, see: 2018 Code, Ch 15.3–15.22.

Discretionary housing powers

HA 1996, s 205(3) enables LHAs to discharge the prevention duty and/or the relief duty by securing accommodation for an applicant, where it decides to do so. This flows from:

- the prevention duty requiring authorities to take reasonable steps to help the applicant to secure that accommodation does not cease to be available to them (HA 1996, s 195(2))

- the relief duty requiring LHAs to take reasonable steps to help the applicant to secure that suitable accommodation becomes available to them for at least six months (HA 1996, s 189B(2))

LHAs might use the section 205(3) power to deliver accommodation services for groups that are at higher risk of homelessness, for example young people with low incomes. The power might also be used to provide additional help to those least able to secure accommodation directly from a private landlord, such as people with an offending history or people with a mental health problem. Housing authorities will wish to consider local priorities, needs and resources when considering how the power might best be utilised in their district.

References:

2018 Code, Ch 15.35

The interim accommodation duty

If the LHA has reason to believe (this is a lower test than ‘is satisfied’) that the applicant may be (this is a lower test than ‘is’):

  • homeless
  • eligible for assistance, and
  • in priority need for accommodation

Then they have an immediate duty to secure that accommodation is available for the applicant and their household.

References:

HA 1996, s 188(1)

The interim accommodation duty applies even where the LHA considers the applicant may not have a local connection with their district and may have one with the district of another LHA giving rise to the possibility of referral.

References:

HA 1996, s 188(2)

The interim accommodation duty comes to an end when applicants are notified of certain decisions in relation to their application.

References:

HA 1996, s 188(1ZA)–(1ZB)

Following inquiries, where the LHA concludes that an applicant does not have a priority need, the interim accommodation duty ends when either:

- the LHA notifies the applicant of the decision that they do not owe a relief duty under HA 1996, s 189B(2), or

- the LHA notifies them of a decision that, once the relief duty comes to an end, they do not owe a duty under HA 1996, s 190 (duties to persons becoming homeless intentionally) or HA 1996, s 193(2) (the main housing duty owed to applicants with priority need who are not homeless intentionally)

An applicant whom the LHA has found to be not in priority need within the 56-day ‘relief stage’ will no longer be owed an interim duty to accommodate, but will continue to be owed a relief duty until that duty ends or is found not to be owed.

For any other case (including for applicants who have a priority need, and for applicants who the housing authority have reason to believe will be owed a duty because they have reapplied within two years of accepting a private rented sector offer, the interim accommodation duty will end on the following events, whichever is the later:

- the LHA notifies them of what duty (if any) they are owed under HA 1996, Pt VII once the relief duty comes to an end

- the LHA notifies them that they are not owed the section relief duty, or that this duty has come to an end

- the LHA notifies them of a decision following their request for a review as to the suitability of a final accommodation offer or Part 6 offer made within the relief stage

In summary, the LHA may bring the interim accommodation duty to an end:

- within the 56-day relief stage by issuing a section 184 notification of the decision that the applicant does not have priority need

- by issuing a notification that the relief duty is not owed or has been brought to an end, or

- notification of what further duties are owed, if any, under HA 1996, s 193 or s 190

In the event that the relief duty is brought to an end following refusal of a final accommodation or Part 6 offer, and the applicant requests a review as to the suitability of the accommodation offered, the interim accommodation duty will continue until a decision on the review has been notified to the applicant.

References:

HA 1996, s 188(2A)

HA 1996, Pt VI

Where an applicant is found not to be eligible for assistance, the LHA must provide, or secure the provision of, information and advice as set out in HA 1996, s 179.

If interim accommodation has been provided, notice periods should take account of the needs of the applicant and the time required for them to access assistance.

For households including children or particularly vulnerable adults who are owed duties under the Children Act 1989 or CA 2014, LHAs should have arrangements in place to manage a transition in responsibilities, so that there is no break in the provision of accommodation for applicants who cease to be eligible for support under HA 1996.

For further reading, see: 2018 Code, Ch 15.3–15.22.

The main housing duty

The duty to provide accommodation to the applicant pursuant to HA 1996, s 193(2) begins immediately on the LHA being satisfied that the applicant is:

  • homeless
  • eligible for assistance
  • in priority need
  • not intentionally homeless
  • not subject to a referral to another authority

The LHA has a duty to 'secure that accommodation is available for occupation by the applicant' and by his or her household. This is referred to in HA 1996, Pt VII as the ‘main’ housing duty but is often referred to between housing practitioners as the ‘full’ housing duty.

The main housing duty will not be owed to an applicant who has turned down a suitable final accommodation offer or Part 6 offer made during the relief stage, or has been given notice under HA 1996, s 193B(2) due to their deliberate and unreasonable refusal to co-operate.

The duty is not limited to a particular minimum or maximum time period, and so it may be indefinite. However, there is no duty to provide a lasting home. The main housing duty is the highest form of the safety net for people who are homeless. The safety net is, essentially, to provide accommodation for such a period that the applicant will be able to resolve their own lack of housing by either being provided with social housing through HA 1996, Pt VI (allocation of housing accommodation), or by being made a private rented sector offer of accommodation.

If the applicant accepts the offer of private rented accommodation and becomes homeless again within two years of acceptance of that offer the applicant will not need to prove priority need for accommodation again.

References:

HA 1996, s 195A(1) and (3)

If the LHA fails to provide accommodation despite being satisfied of the criteria listed above, the challenge is by way of judicial review.

Discharging the main duty

The section 193(2) duty ends if one of the circumstances set out in HA 1996, s 193(5)–(7F) occurs:

- the applicant refusing an offer of suitable accommodation secured in performance of the main duty (HA 1996, s 193(5))

- the applicant ceasing to be eligible for assistance (HA 1996, s193(6)(a))

- the applicant becoming homeless intentionally from their main housing duty accommodation (HA 1996, s 193(6)(b))

- the applicant accepting an offer of a tenancy made under HA 1996, Pt VI (HA 1996, s 193(6)(c))

- the applicant accepting an offer of an assured tenancy from a private landlord (not an assured shorthold tenancy), including from a private registered provider (HA 1996, s 193(6)(cc))

- the applicant voluntarily ceasing to occupy his or her main housing duty accommodation as his or her only or principal home (HA 1996, s 193(6)(d))

- the applicant refusing a final offer of accommodation under HA 1996, Pt VI (HA 1996, s 193(7)–(7A))

- the applicant accepting a final offer from the private rented sector (HA 1996, s 193(7AA)(a))

- the applicant refusing a private rented sector offer (HA 1996, s 193(7AA)(b)–(7AC))

The wording of HA 1996, s 193 is that the LHA ‘shall cease to be subject to the duty’, so the main duty ends automatically and without any need for the LHA to make a decision. It is advisable for the LHA to notify the applicant of the position. These notifications are known as ‘discharge of duty’ letters.

It is not the case that ‘no’ decision has been made, though, because the LHA will have made a decision that one of the criteria above has happened such as to automatically bring the duty to an end. It is therefore a decision on ‘what duty, if any is owed’ to the applicant, and as such it is open to a HA 1996, s 202 review by the applicant.

References:

Warsame v Hounslow London Borough Council [2000] 1 WLR 696

HA 1996, s 202(1)(b)

The main line of defence for an applicant on discharge of duty is to seek a review of the suitability of the accommodation that has been offered to them. If the accommodation was not suitable then it is not unreasonable to refuse it, and it follows that the main duty continues.

In circumstances where the housing authority accepted a section 193(2) duty on an application made before 9 November 2012, that duty cannot be brought to an end through an offer of private rented accommodation unless that offer meets the requirements of ‘a qualifying offer’.

A qualifying offer must be of a fixed-term tenancy of at least 12 months duration and be accompanied by a written statement that states the term of the tenancy being offered and explains in ordinary language that there is no obligation on the applicant to accept the offer, but if the offer is accepted the housing authority will cease to be subject to the section 193 duty. The applicant must have signed a statement acknowledging that he or she has understood the written statement accompanying the offer.

The duty to accommodate applicants who have deliberately and unreasonably refused to co-operate pending final offer

Applicants who have priority need but are no longer owed a relief duty following service of a section 193B notice due to their deliberate and unreasonable refusal to co-operate (see above) will not be owed the main housing duty under HA 1996, s 193, but will be owed an accommodation duty under HA 1996, s 193C(4).

The section 193C(4) duty is to secure accommodation for the applicant by:

References:

HA 1996 s 193C(5)–(6)

- making a ‘final accommodation offer’ of an assured shorthold tenancy—this is an offer made by a private landlord with the approval of the housing authority, with a view to bringing the section 193C(4) duty to an end. The offer must be of a fixed-term tenancy (within the meaning HA 1988, Pt I) of at least six months duration, and the accommodation must be suitable for the applicant

- making a ‘final Part 6 offer’ of a suitable housing allocation (under HA 1996, Pt VI)—this must be made in writing, and state that it is a final offer for the purposes of section 193C

The LHA must not approve a final accommodation offer or make a final Part 6 offer if the applicant has a contractual obligation in respect of their existing accommodation which they are unable to bring to an end before being required to take up the offer.

References:

HA 1996, s 193C(9)–(10)

HA 1996, Pt VI

This section 193C(4) duty ends if:

- the applicant accepts or refuses a final accommodation offer or a final Part 6 offer

- ceases to be eligible for assistance

- becomes homeless intentionally from the accommodation provided under HA 1996, s 193C(4)

- accepts an offer of an assured tenancy from a private landlord; or

- voluntarily ceases to occupy as their only or principal home, the accommodation provided

The duty to secure accommodation for a period that will give the applicant a reasonable opportunity of securing their own accommodation

Where the LHA is satisfied that the applicant is:

  • eligible for assistance
  • homeless, and
  • in priority need for accommodation, but
  • became homeless intentionally

the LHA must secure accommodation for a period of time that will provide a reasonable opportunity for the applicant to find their own accommodation, and provide advice and assistance to help secure that accommodation becomes available for occupation.

References:

HA 1996, s 190

A few weeks may provide the applicant with a reasonable opportunity to secure accommodation for themselves. However, some applicants might require more time and others, particularly where the housing authority provides pro-active and effective assistance, might require less time.

LHAs will need to take into account:

  • the particular needs and circumstances of the applicant and the resources available to them to secure accommodation—this might include any health or support needs that make it more difficult for the applicant to find and secure accommodation, as well as the support available from their family or social network
  • the housing circumstances in the local area, and the length of time it might reasonably take to secure accommodation—in assessing this, the housing authority might reflect on the efforts previously made by both the housing authority and the applicant to relieve their homelessness, and why these had not proved successful
  • arrangements that have already been made by the applicant which are likely to be successful within a reasonable timescale—for instance, if the applicant has secured accommodation that is not yet available to occupy or can demonstrate that accommodation will be secured, the housing authority should consider providing accommodation until the applicant is able to take up the accommodation secured

For further reading, see: 2018 Code, Ch 15.15.

If the LHA has notified an applicant that it proposes to refer the case to another LHA, the notifying authority has a duty to secure that accommodation is available for the applicant until they are notified of the decision whether the conditions for referral are met under:

- HA 1996, s 199A(2)—if referral is in the relief stage for an applicant who the authority has reason to believe may have a priority need, or

- HA 1996, s 200(1)—if referral is in the main housing duty stage for an applicant who has a priority need and is unintentionally homeless

At this point the duty under HA 1996, ss 199A(2) or 200(1) as applicable will come to an end and a duty under HA 1996, ss 189B or 193(2) will be owed by either the notified LHA or the notifying LHA.

When the LHA is satisfied that they are under no further duty to secure interim accommodation, or where this duty has ended, the LHA will need to terminate the applicant’s right of occupation.

Interim accommodation is usually provided under licences excluded from the requirement to issue 4 weeks written notice provided by the Protection from Eviction Act 1977. LHAs are required only to provide an applicant with reasonable notice to vacate the accommodation, and do not need to apply for a possession order from the court.

LHAs are public bodies and so must act reasonably by giving the applicant at least some opportunity to find alternative accommodation before the interim accommodation is terminated. What is considered ‘reasonable notice’ would depend on the facts of the case, taking into account the circumstances of the applicant and allowing time for them to consider whether to request a review of the decision.

Where an applicant rejects an offer of interim accommodation (or accepts and moves into the interim accommodation and then later rejects it), this will bring the housing authority’s interim accommodation duty to an end—unless it is reactivated by any change of circumstances. Note, however, that an applicant’s rejection of interim accommodation does not end other duties that the housing authority may owe under HA 1996, Pt VII.

Duty to provide advice and assistance

Where the LHA is satisfied that the applicant is:

  • eligible for assistance
  • homeless or threatened with homelessness, and
  • not in priority need for accommodation

the LHA is obliged only to provide advice and assistance to the applicant. In deciding what advice and assistance is to be provided, the LHA must have regard to their assessment of the applicant’s case under HA 1996, s 189A.

References:

HA 1996, s 190(4)

For further reading, see: 2018 Code, Ch 3: Advice and information about homelessness and the prevention of homelessness.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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August 23, 2019

‘Funding crisis’ - a detailed look at the funding shortage in UK schools

According to campaigners, more than 200 schools in England are cutting their school weeks short due to funding shortages. This raises questions over legal ramifications and the responsibility of the government. Jean Tsang, associate at Bates Wells and governor of a maintained primary school, addresses these questions and looks at the worrying effects of this ‘funding crisis’ on the ‘most vulnerable children’ in the educational system.
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August 16, 2019

Judicial review challenge over closure of children’s centres defeated by local authority

The case R (on the application of L, an infant (by his mother and litigation friend)) v Buckinghamshire County Council represents the first time when the High Court considered in detail the meaning of the ‘sufficiency duty’ in section 5A of the Childcare Act 2006 (ChA 2006) in the context of whether a council’s consultation on the closure of a number of children’s centres was unlawful or not. James Goudie QC examines the background to and the practical implications of the judgment.
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August 09, 2019

How does a local authority establish a market?

The LexisPSL team outline the powers available to local authorities looking to establish a new market.
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August 02, 2019

Forced academisation of schools - is resistance futile?

What are the circumstances which lead to a school being forced to become an academy, and is there anything that can be done to stop it happening? Katie Michelon provides an overview of the forced academisation process, and explains the options available to schools, parents and local authorities when faced with the possibility of an Academy Order.
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June 13, 2019

Home or away?

Katherine Illsley outlines how a local authority should approach the situation where a parent to be assessed for the purposes of public children care lives in another jurisdiction.
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June 07, 2019

Tenant Fees Act 2019 - government guidance

The government recently published guidance on the Tenant Fees Act 2019 (TFA 2019). Robin Stewart and David Smith of Anthony Gold Solicitors look at some of the key questions relating to the guidance, including enforcement, penalties and some controversial aspects such as guidance pertaining to payment of damages.
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June 07, 2019

How should the courts approach cases with an ‘open’ pool of possible perpetrators?

Chris Stevenson, barrister at Fourteen, examines the Court of Appeal’s decision in Re B (children: uncertain perpetrator) to allow a father’s appeal against a Family Court judge’s finding that he was within a pool of possible perpetrators responsible for sexually transmitting gonorrhoea to three of his children (registration required).
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May 24, 2019

Court of Appeal finds permissive housing policies can restrict development elsewhere

In Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669, the Court of Appeal dismissed an appeal by developer Gladman against the decision of the High Court to quash planning permission granted on appeal for a residential development on a site not allocated for development, not on previously developed land, and outside the existing built-up area.
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May 24, 2019

Safety first?

Daljit Kaur looks at the implications for disability discrimination of a case concerning a nursery-age child prevented from accessing provision over 15 hours.
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May 17, 2019

The changing landscape of local authority Trading Standards prosecutions?

Richard Heller considers the potential impact of Qualter and others v Crown Court at Preston [2019] EWHC 906 (Admin) could have on the way regional Trading Standards services investigate and prosecute criminal offences (registration required).
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May 17, 2019

Wish they weren't here?

Can a parent with parental responsibility object to their child, who is subject to an interim care order, being taken on holiday by their foster parents?
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May 10, 2019

Exploring the new guidance on greater protections from rogue landlords

Jason Hobday, associate at Womble Bond Dickinson, discusses the implications of recent government guidance documents which intend to enforce greater protections from rogue landlords (registration required).
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May 09, 2019

Court finds judge in Uber licensing case was not biased

Philip Kolvin QC examines the High Court’s decision in R (United Cabbies Group) v Westminster Magistrates’ Court to dismiss the claimant’s application for judicial review of a district judge’s grant of an operator’s licence for London private hire vehicles to the third interested party, Uber.
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May 03, 2019

End of the road?

Morayo Fagborun Bennett looks at the Court of Appeal's decision on waiving offers of alternative accommodation and the lawfulness of an earlier review decision on a subsequent homelessness appplication in Godson v London Borough of Enfield [2019] EWCA Civ 486.
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May 03, 2019

Court rejects implied duty to report change of address for council tax purposes (R v D)

Samuel Genen, solicitor at Steel & Shamash, comments on the case of R v D [2019] EWCA Crim 209 where the Court of Appeal ruled that a failure to notify the local council of a change of address for the purpose of council tax did not constitute a criminal offence under the Fraud Act 2006 (FrA 2006). (Registration required)
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March 22, 2019

Is it in the best interests of a child to give evidence in a foreign trial?

Katherine Duncan explains how the court, in Re X, carried out a balancing exercise in determining whether a child, who was ward of the court, should be permitted to travel out of the jurisdiction to give evidence at a foreign criminal trial.
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March 15, 2019

High Court’s inherent jurisdiction for the protection of vulnerable adults

The case of Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy, writes Bethan Harris.