Supporting 16- and 17-year-olds making homelessness applications A good practice guide

Transcription

1 Supporting 16- and 17-year-olds making homelessness applications A good practice guide

2 Michele Scott and Stephen White, edited by Penny Byrne Shelter 2006 First published in October 2006 by Shelter, 88 Old Street, London EC1V 9HU Cover photography by Nick David Registered charity number No part of this report may be reproduced without prior permission except for the purposes of review or referral. All legislation and the Homelessness Code of Guidance are Crown Copyright, and are reproduced by permission of the Office of Public Sector Information under the terms of the Click-Use Licence. ISBN

3 Contents Foreword 4 Introduction 5 The legal position in outline 7 How to make effective homeless applications 9 Challenging decisions 17 Informal challenges 17 Formal challenges 20 Other methods of redress 30 Summary 33 Appendices 34 Appendix 1: standard letters 34 Appendix 2: resources and sources of information 38 Appendix 3: extract from the Homelessness Code of Guidance 40 Appendix 3: homelessness applications for 16- and 17-year-olds flowchart 44 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 3

4 Foreword Young people are particularly vulnerable to homelessness and its consequences. In England, there are significant numbers of homeless young people who are not receiving the accommodation and support they desperately need. This guide will help professionals who work with young people to make effective homelessness applications, and to challenge negative homelessness application decisions where they feel they have been incorrectly made. The Vodafone UK Foundation is supporting Shelter s work with, and for, young people, enabling Shelter to provide them, and the people who work with them, with the information they need, at the time when they need it. The Vodafone UK Foundation and Shelter are working together to tackle youth homelessness and exclusion in the long term. This guide is an example of Shelter s work in supporting organisations with vital information and good practice ideas. It aims to be simple, practical, and easy to use. We hope you will find it a valuable resource. Adam Sampson Chief Executive, Shelter 4 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

5 Introduction In 2002, the Government introduced legislation to expand the categories of people who are considered to have a priority need for assistance under the homelessness legislation. 1 Previously, 16- and 17-year-olds would have had to have been considered vulnerable in order to have a priority need. From 31 July 2002, most 16- and 17-year-olds automatically have a priority need on account of their age. However, following implementation, it would appear that many homeless 16- and 17-yearolds experience difficulties when applying as homeless to a local housing authority, both in having their application taken and in obtaining interim accommodation pending the authority s inquiries. Examples of bad practice The following list gives some examples of bad practice that have been encountered in relation to 16- and 17-year-olds who approach a local authority for assistance because they are homeless. Placing young people in accommodation that is unsuitable and/or without adequate support. To help advisers who are experiencing these or similar problems, this guide gives details of the legal position, provides practical and tactical advice on how to make effective homelessness applications for 16- and 17-year-olds, and explains how to challenge negative decisions and bad practice. Prevention of homelessness The Government has placed increasing emphasis on prevention of homelessness in recent years. Where 16- and 17-yearolds are concerned, this will often involve family mediation services to try to resolve problems that have led to parents evicting their children. However, Government guidance is clear that local authorities should not use prevention as a way to avoid their obligation to take a homelessness application in an emergency situation. Refusal to provide accommodation or take a homelessness application until the young person has attended a mediation appointment. Requests for additional and sometimes irrelevant evidence. Delaying inquiries until the young person is 18. Findings of intentional homelessness for not keeping to the rules of the parental home. Ineffective liaison between social services and the local authority s homelessness section ( passing the buck between the two departments at the young person s expense). In many cases early, effective intervention can prevent homelessness occurring. Housing authorities are reminded that they must not avoid their obligations under Part 7 of the 1996 Act (including the duty to make inquiries under s.184, if they have reason to believe that an applicant may be homeless or threatened with homelessness), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant. Paragraph 2.3, Homelessness Code of Guidance for Local Authorities, July 2006 For organisations that are interested in youth homelessness prevention work, there 1 The Homelessness (Priority Need for Accommodation) (England) Order 2002; SI 2002 No Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 5

6 are various approaches that can be used: housing education in schools and youth organisations appropriate housing information and advice services family mediation services improved partnership working between statutory and voluntary service provision to identify and support young people at risk of homelessness protocol arrangements with specialist services to target specific support needs (substance use, offending, etc) planned housing strategies and support for young people leaving care awareness raising with landlords around risk identification and signposting to services awareness raising with youth organisations around risk identification and signposting to services provision of accommodation support services to homeless young people who have been rehoused to prevent repeat homelessness protocols with registered social landlords (RSLs) regarding the housing of young people. housing information and advice for young people in custody 6 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

7 The legal position in outline When a person approaches a local housing authority as homeless, and the authority have reason to believe that they may be homeless (or threatened with homelessness within 28 days), the authority must accept a homelessness application from them. The process of applying as homeless is governed by part 7 of the Housing Act The Government also issues a Homelessness Code of Guidance for Local Authorities, which authorities must have regard to when processing homelessness applications. The latest version of the Code of Guidance was published in July 2006, and came into force on 4 September The five tests When approached for assistance by a person who may be homeless, a local housing authority must apply five tests to her/his situation. Is the applicant homeless (as defined by section 175 Housing Act 1996)? Is the applicant eligible for assistance (under section 185 Housing Act 1996 certain classes of people who are subject to immigration control are not eligible for assistance)? Does the applicant have a priority need for accommodation (under section 189 Housing Act 1996 and the 2002 priority need order)? Has the applicant become homeless intentionally (ie has s/he deliberately done, or omitted to do, something that has caused her/him to become homeless; section 191 Housing Act 1996)? Does the applicant have a local connection (as defined by section 199 Housing Act 1996) with the area to which s/he has applied? The first four tests decide whether a housing duty is owed to the applicant. If the local authority is satisfied that they are passed (that is, that the applicant is homeless, eligible for assistance, has a priority need, and is unintentionally homeless), then the applicant will be owed a full housing duty; an authority will have a duty to secure settled accommodation for her/him. The fifth test decides which authority has the full housing duty. There are several things to note about this test. A local connection will be established by normal residence (for at least six out of the previous 12 months, or three out of the previous five years; that residence must be residence of choice), employment, close family associations, or other special circumstances (s.199 Housing Act 1996). It should only be applied once the authority is satisfied that the other four tests are satisfied (that is, that the applicant is homeless, eligible for assistance, has a priority need, and is unintentionally homeless). Any application of the local connection test before the first four tests are applied (for example, where the authority advise the applicant to go to another authority to make an application because s/he does not have a local connection), or where any duty other than the full housing duty is owed, will be unlawful (paragraph 18.3, Code of Guidance). It is discretionary; the local authority may apply the test (s.184(2) Housing Act 1996). If the applicant does not Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 7

8 have a local connection, the authority has discretion to refer her/his case to another authority (s.198(1) Housing Act 1996). This other authority will then have a full housing duty if it agrees that the conditions for referral are met (if it disagrees with the referral, then there is an dispute procedure for deciding which authority has the duty paragraphs , Code of Guidance). A referral to another authority must not be made if the applicant would be at risk of violence in the other authority s area (sections 198(2)-(3) Housing Act 1996). Where the applicant has no local connection in any area, the authority that took the application will have the duty.(paragraph 18.22, Code of Guidance). Priority need Regulation 3 of the 2002 Priority Need Order provides that a person aged 16 or 17 will have a priority need for accommodation unless s/he is: a relevant child under section 23A Children Act 1989 a child to whom the local authority owes a duty to provide accommodation under section 20 Children Act A relevant child is a 16- or 17-year-old who has left care and who was looked after by a local authority for at least 13 weeks since the age of 14 and at some time while 16 or 17. Social services are responsible for accommodating relevant children. provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. Social services are responsible for discharging this duty. It is arguable that any homeless 16- or 17- year-old is a child in need and therefore owed a duty under section 20. However, this has been rejected by the courts, 2 so, unless there are other specific child welfare concerns such as disability or abuse, the onus to provide accommodation will be on the housing authority under the homelessness legislation. It is good practice for an authority to have a formal liaison process between social services and the homelessness section to resolve any dispute as to whether a child is a child in need or a relevant child. In all cases of uncertainty as to whether a 16- or 17-year-old applicant may be a relevant child or child in need, the housing authority should contact the relevant children s services authority and, where necessary, should provide interim accommodation under s.188, pending clarification. A framework for joint assessment of 16- and 17-year-olds will need to be established by housing and children s services authorities (and housing and children s services departments within unitary authorities) to facilitate the seamless discharge of duties and appropriate services to this client group. Paragraph 10.39, Code of Guidance The duty owed under section 20 Children Act 1989 is to provide accommodation to children deemed to be in need. Section 20 (3) states: every local authority shall 2 R (on the application of M) v Hammersmith and Fulham LBC [2006] ECWA Civ Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

9 How to make effective homelessness applications Making the initial application When a young person makes a homelessness application, it is likely that s/he will do so at the point at which s/he needs accommodation. S/he may have been told to leave by family or friends, or be subject to violence or abuse. It is important that the local authority takes on the case and starts to make inquiries, and that suitable interim accommodation is provided pending those inquiries. An adviser will therefore need to be familiar with the following duties. The duty to make inquiries If a local authority has reason to believe that a person may be homeless or threatened with homelessness, it shall make inquiries as to: whether s/he is eligible for assistance, and if so, what duty (if any) is owed to her/him. Section 184(1) Housing Act 1996 As long as there is reason to believe that the applicant may be homeless, the local housing authority must take an application and start to make inquiries. Reason to believe should be interpreted in its ordinary common sense meaning there is therefore a low evidential burden. This means that if a local housing authority insists on the applicant providing particular documents (for example, a passport, a birth certificate, or parents tenancy agreement) before commencing inquiries, it is likely to be acting unlawfully. The duty to secure accommodation pending inquiries If the local authority has reason to believe that an applicant may be homeless, eligible for assistance, and have a priority need, it shall secure that accommodation is available for her/his occupation pending a decision on her/his application. Section 188(1) Housing Act 1996 This duty is often known as the interim accommodation duty. As with the duty to make inquiries, this duty is triggered by reason to believe that a person may be homeless, eligible for assistance, and have a priority need. The requirement is not for proof of homelessness, eligibility, and priority need. If a local authority insists, as a matter of policy, that accommodation will not be secured until a particular document is provided, this is likely to be unlawful. Note that for both the duty to make inquiries and the interim accommodation duty, local connection is irrelevant. Evidence required to trigger the duty to make inquiries and the interim accommodation duty Although only reason to believe is required to trigger the duty to make inquiries and the interim accommodation duty, tactically, the more evidence that can be provided at the initial application, the better. In many situations, however, the evidence that the applicant can provide will be limited. It is often helpful for an adviser to write a letter to the local housing authority outlining the basis on which the authority has reason to believe that the client may be homeless, eligible, and have a priority need. Any available evidence should be enclosed. Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 9

10 The client can then give the letter to the authority when s/he makes the application. An example of this type of letter can be found in appendix 1 (page 34). A list of the types of evidence that an adviser may attempt to get is below. Evidence of identity Passport. Medical card. School report. Official letters. Birth certificate. Evidence of homelessness If the client has had to leave the accommodation of a parent or friend, a letter from them stating this (this may not be possible, for example in the event of emergency or where that person is hostile). If there has been violence in the accommodation, an account of that violence, indicating third parties who can support that evidence (for example, relatives, police, social services, counsellors, solicitors, GP). If no independent evidence can be produced, a statement from the client can be used. Evidence of eligibility Passport or Home Office papers showing immigration status. Generally, unless the applicant is subject to immigration control or has been out of the UK for a considerable period, documents showing eligibility are unlikely to be requested at the initial application. Evidence of age (and therefore of priority need) Passport. Birth certificate. Medical card. School report (possibly). Letter from GP, college, relative, employer, responsible adult (eg schoolteacher, religious official). Often, a client will not have any of the above documents nor immediate access to them. Remember that the evidential threshold to trigger the duty to make inquiries and the interim accommodation duty is low only reason to believe is required. In the absence of documentation, the client s own account is evidence and, in itself, should give reason to believe. However, an adviser may well have to argue this point on behalf of a client. If the client has nowhere to stay and requires interim accommodation that day, an application should not be delayed in order to obtain documentation. If the client does have somewhere safe to stay for that night (for example, with a friend), and is happy to do so, it may be worth delaying making an application in order to get supporting documents. For 16- and 17-year-olds, evidence of age is likely to be the main sticking point, as it is this factor that confers priority need. If obtaining an official document such as a passport or birth certificate is not possible, the client could get a letter from a relative or other responsible adult. Strictly speaking, the client s own statement that s/he is 16 or 17 should give an authority reason to believe that they are 16 or 17. However, it can be quicker to provide 10 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

11 evidence than argue the point with a homelessness officer. Supporting the client s application while inquiries are being made Once the authority has taken an application, it will need to make full inquiries into the first four tests homelessness, eligibility, priority need, and intentional homelessness, in order to decide what duty it has to the client. An authority can apply the local connection test once it has decided that the first four tests are passed. Local connection is only relevant to the question of which local authority discharges the full accommodation duty. For this vulnerable client group it is good practice for an adviser to continue to give advice as necessary throughout the case (for example, if the local authority wishes to interview the client again or writes to her/him requesting further information). The issues covered below often arise with applications made by 16- or 17-year-olds. Mediation Many local authorities have set up mediation schemes to cater for the situation where a 16- or 17-year-old s homelessness has been caused by relationship breakdown between her/him and the people that s/he lived with (usually her/his parents). It is good practice for mediation schemes to be provided by an independent body (eg Relate) that offers sessions where the parties concerned can discuss their differences. Authorities should not insist on mediation in all cases. If there has been violence or abuse, for example, mediation would be entirely inappropriate. If the parent or relative will not agree to mediation, this should not be used against the applicant. It is normally better for a 16- or 17-year-old to remain in a stable home rather than face the uncertainty and upheaval of leaving home. The Government therefore considers mediation to be in the best interests of 16- and 17-year-old homeless applicants. The Government considers that, generally, it will be in the best interests of 16- and 17-year-olds to live in the family home, unless it would be unsafe or unsuitable for them to do so because they would be at risk of violence or abuse. It is not unusual for 16- and 17-year-olds to have a turbulent relationship with their family and this can occasionally lead to temporary disagreements and even temporary estrangement. Where such disagreements look likely to lead to actual or threatened homelessness the housing authority should consider the possibility of reconciliation with the applicant s immediate family, where appropriate, or the possibility of him or her residing with another member of the wider family. In all cases involving applicants who are 16 or 17 years of age a careful assessment of the young person s circumstances and any risk to them of remaining at home should be made at the first response. Some 16- and 17-year-olds may be at risk of leaving home because of a temporary breakdown in their relationship with their family. In such cases, the housing authority may be able to effect a reconciliation with the family. In some cases, however, relationships may have broken down irretrievably, and in others it may not be safe or desirable for the applicant to remain in the family home, for example, in cases involving violence or abuse. Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 11

12 Therefore, any mediation or reconciliation will need careful brokering and housing authorities may wish to seek the assistance of social services in all such cases. Paragraphs , Code of Guidance Mediation appointments must not be used by an authority, however, to postpone the duty to make inquiries or the interim accommodation duty. Because these duties are triggered by the authority having reason to believe that an applicant may be homeless, eligible, and has a priority need, informing applicants that they have a mediation appointment in two weeks time and nothing can be done until the outcome of that, for example, is clearly unlawful. Good practice guidance on mediation can be found in Shelter s Mediation for young homeless people: a good practice guide see appendix 2 (page 39) for details. Contacting parents In the case of a 16- or 17-year-old being told to leave the parental home, a local authority is likely to contact her/his parent/s. This will generally be to check if the 16- or 17- year-old is actually homeless, and her/his reasons for leaving home, for the following two reasons. To check that there has not been collusion. The Code of Guidance (paragraph 12.11) indicates that, in respect of applications from 16- or 17-year-olds, authorities have to be particularly alive to the possibility of collusion (that is, a situation where a parent and child agree that the parent will evict the child with the intention of her/his being rehoused by the authority). To establish whether the 16- or 17- year-old has become homeless intentionally. In some cases, parents explain their decision to evict the young person by making allegations about her/his behaviour. If this happens, and the authority intends to rely on the allegations to make a decision that the 16- or 17-year-old became homeless intentionally, then it must first put the allegations to the 16- or 17-year-old for comment. (This is on the basis of the general principle that an applicant must always be given an opportunity to explain matters that the authority are minded to treat as unfavourable to her/his application.) 3 It is often unfair to attribute a breakdown in a relationship to one party alone, and advisers should consider whether a decision that does so can be challenged. Contacting a 16- or 17-year-old homeless applicant s parents is, therefore, a reasonable part of the authority s inquiries. However, it would be inappropriate to do so if there has been abuse or violence. The Code of Guidance states that, in cases where violence is alleged, it is not advisable for the housing authority to approach the alleged perpetrator, since this could generate further violence, and may delay the assessment (paragraph 6.17). Suitability of accommodation All accommodation provided to homeless applicants must be suitable for the applicant (section 206 Housing Act 1996). This applies to both interim accommodation pending inquiries and that provided under the full duty. Note, however, that there is no right to request a formal review of the suitability of interim accommodation. 3 R v Wyre Forest BC ex p Joyce [1983] 11 HLR 73, QBD. 12 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

13 There are a number of provisions generally concerning suitability that apply to 16- and 17-year-old homeless applicants. An authority must take into account the individual needs of the applicant and any family members in assessing suitability. Lack of resources is not something that can be used as an excuse to fail to secure accommodation or to secure accommodation that is not suitable. 4 Accommodation must be affordable. 5 The applicant should be able to pay the rent/charges together with other normal living costs. 6 Any medical or physical needs that the applicant has should be taken into account (paragraph 17.5, Code of Guidance). Social considerations that might affect suitability should be taken into account (paragraph 17.6, Code of Guidance). The authority should consider any risk of violence or racial harassment (paragraph 17.6, Code of Guidance). The location of the accommodation should be considered; applicants should, if possible, be placed near established links, support, and employment (paragraph 17.41, Code of Guidance). Bed and breakfast accommodation (except for accommodation managed by a local authority or RSL) is generally not suitable for homeless applicants, but can be used in an emergency, or where it is the most appropriate option for the applicant (paragraph 17.24, Code of Guidance). Applicants with family commitments (that is, those with dependent children or who are pregnant), bed and breakfast can only be used for up to six weeks where no other accommodation is available. 7 However, although this would apply to a household containing a dependent 16- or 17-year-old child if the child were dependent, it does not apply to an unaccompanied 16- and 17-year-old or a couple who are both 16 or 17 unless they have a dependent child or are pregnant. As the applicant s circumstances may change, the authority should also keep the suitability of the accommodation under review for the duration of her/his occupation. Where young people actually become homeless and are provided with accommodation, local authorities should consider whether they have any care or support needs. Many young people who have experienced homelessness may lack skills in managing their affairs and require help with managing a tenancy and operating a household budget. Those estranged from their family, particularly care leavers, may lack the advice and support normally available to young people from family, friends and other mentors. 16- and 17-year-olds who are homeless and estranged from their family will be particularly vulnerable and in need of support. Housing authorities will need to recognise that accommodation solutions for this client group are likely to be unsuccessful if the necessary support is not provided. Close liaison with social services, the Supporting People team and agencies working with young people will be essential. Most 16- and 17-year-old 4 R v Newham ex p Sacupima & Ors [2000], LTL 23/11/00 CA. 5 The Homelessness (Suitability of Accommodation) Order 1996; SI 1996 No R v Hillingdon ex p Tinn [1988] 20 HLR 305, QBD. 7 The Homelessness (Suitability of Accommodation) (England) Order 2003; SI 2003 No Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 13

14 applicants are likely to benefit from a period in supported accommodation before moving on to a tenancy of their own, but housing authorities should consider the circumstances of each case. Paragraphs , Code of Guidance Most 16- and 17-year-olds will need both emotional and practical support in any accommodation secured. To merely place a young person in bed and breakfast accommodation or a hostel with other adults is not sufficient. To place a 16-year-old woman in a largely male hostel with shared facilities, or a young person of either sex in an environment where other residents have particular needs for example, with drug or alcohol users is likely to be unsuitable. If the young person feels threatened or harassed in any way, an adviser should treat this very seriously and (as long as the client is agreeable) advocate for an immediate move. Often, a young person will need support in managing financially, to ensure her/his needs are cared for, that rent is paid, and that the accommodation is sustained. Decisions and notification There is no set time within which a local authority must make a decision on a homelessness application. However, the Code of Guidance recommends that inquiries should be completed as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy itself what duty, if any, is owed or what other assistance can be offered. (paragraph 6.16). Thus, if the authority has completed the inquiries necessary to satisfy itself as to what duty it owes the applicant, it cannot delay reaching a decision further (for example, until the applicant reaches 18 see page 27). The Code recommends that inquiries be completed within 33 working days of the authority accepting the application. The Code of Guidance further states that applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, a decision that an applicant is intentionally homeless. (paragraph 6.15). Some authorities issue a letter to the applicant indicating the decision that they are minded to make, inviting further representations on the matter within a set number of days. Other authorities invite the applicant for interview to get her/his comments on a provisional decision. Notification of the decision must: be issued in writing, and, if not received by the applicant, can be treated as given to her/him if it is made available at the authority s offices for collection for a reasonable period (section 184(6) Housing Act 1996) explain the reasons for the decision if it is not in the applicant s interests (section 184(3) Housing Act 1996) inform the applicant of her/his right to request a review within 21 days (section 184(5) Housing Act 1996). Advisers should make a note of when the applicant receives the notification, as the 21 days within which a review should be requested runs from that date, not the date on the letter: A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority s decision (section 14 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

15 202(3) Housing Act 1996, our emphasis; see Statutory review, pages for more information on requesting a review). Duties and powers The authority s duties and powers in respect of the applicant depend on the decision that is reached, and are summarised in the table on overleaf. In all cases where there is a duty to give advice and assistance, the applicant s housing needs must be assessed before the authority gives advice and assistance (section 190(4) and 192(4) Housing Act 1996). The duties differ where the applicant is threatened with homelessness, rather than actually homeless; they are then focused on preventing homelessness (see Code of Guidance, chapter 14 for more details). Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 15

16 Table: local authority duties and powers Decision Duties Discretionary powers Legislation/ guidance Not homeless. None, although every authority must ensure that advice and information about homelessness and the prevention of homelessness is available free of charge to any person. - Section 179 Housing Act Homeless, but not eligible for assistance. As above. - As above. Homeless, eligible, but no priority need. To give advice and assistance in securing accommodation (can include, for example, assistance through a rent deposit guarantee scheme). Unless applicant is intentionally homeless, to secure accommodation. Sections 192 and 190(3) Housing Act 1996; Code of Guidance paragraphs Eligible, has a priority need, but intentionally homeless. Homeless, eligible, has a priority need, unintentionally homeless, and has a local connection. To give advice and assistance in securing accommodation. To secure temporary accommodation for a reasonable period. Full housing duty: to secure temporary accommodation until able to offer settled accommodation (or applicant voluntarily leaves or becomes intentionally homeless from temporary accommodation). - Section 190 Housing Act 1996; Code of Guidance paragraphs Section 193 Housing Act 1996; Code of Guidance paragraphs Homeless, eligible, has a priority need, unintentionally homeless, but no local connection. If no referral is made, or if the applicant has no local connection anywhere, as above. To refer the applicant to an authority where s/he does have a local connection, unless s/he is at risk of violence in that area. Section 198 Housing Act 1996; Code of Guidance chapter Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

17 Challenging decisions This section summarises the options available to 16- and 17-year-olds where problems arise following an application as homeless under part 7 Housing Act Informal challenges The following are some of the more common situations involving 16- and 17-year-olds where informal challenge may be necessary. Where an applicant is unreasonably turned away when attempting to make a homelessness application, for example asked to obtain an unreasonable level of evidence, or to wait until a mediation appointment some time in the future. Where interim accommodation is not provided. Where interim accommodation is unsuitable. An informal challenge is necessary in these situations because there is no formal right to a review of decisions in respect of them. The main purpose of an informal challenge is to persuade the authority to change its mind and obtain a positive result for the client. Failing this, it will be necessary to refer the client elsewhere so that legal action can be taken. For this reason, it is important that, in the course of the informal challenge, the groundwork is prepared for any further action for example, obtaining a clear statement from the authority as to its reasons for the decision, and details of any unlawful policy. This will maximise the client s chance of an early and successful outcome. Tactics The adviser will need to think practically of how to achieve the best outcome for the client. For example, if the client has been turned away because s/he has no formal identity document(s), and s/he is happy to stay at a friend s house that night and is able to get her/his passport the following day, there is little point in spending time arguing the issue with a homelessness officer. If, however, the young person is unable to obtain documentation for some reason, or if s/he requires accommodation that night, the adviser will need to contact the authority to advocate for the client. But, before doing so, consider if there is any other evidence that can be obtained at short notice. Remember that, in order to trigger the duty to take an application and make inquiries, the authority only has to have reason to believe a client may be homeless (section 184(1) Housing Act 1996). To trigger the duty to provide interim accommodation pending inquiries, the authority only has to have reason to believe the applicant may be homeless, eligible and in priority need (section 188(1) Housing Act 1996). Therefore, evidence need not be conclusive such that the authority is satisfied that an applicant is homeless, eligible, and in priority need before accommodation is provided. Example of an informal challenge Peter is 17 years old and has been evicted by his parents. He has approached the local authority for assistance, but has been turned away. The authority accept he is homeless and has raised no issue regarding eligibility, but states that it needs, as evidence of his age, either a passport or a birth certificate. At about 3pm, he seeks help from his local advice centre because he will have nowhere to stay that night. Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 17

18 Peter does not attend college and there appears to be no-one who can provide evidence of his age by tonight. He does not have a passport, and has no idea where his birth certificate is. He has phoned his parents to ask, but they have said that they do not know and will not look for it or let him return to the house to look for it. Peter is, however, optimistic that he will be able to get a letter from his GP or from his old school the next day. In this situation, the adviser can contact the authority and argue that the interim accommodation duty is triggered, as there is reason to believe that Peter is in priority need. He has told his adviser, and the authority, that he is 17. There is no reason to disbelieve him, nor does he appear older. He will be street homeless that night, and therefore his personal safety is at risk. It is likely that he will be able to provide evidence of his age the next day. The Housing Act 1996 does not require specific documentary evidence to trigger the duty to secure interim accommodation. Therefore the authority is applying a higher test, in requiring him to prove his age, than is required in law. Peter cannot obtain the documents for reasons beyond his control. It is therefore irrational for the local authority to refuse accommodation because of his inability to provide it with evidence of his age. If it is clear that the officer dealing with the matter does not have the authority to disregard what appears to be the authority s policy, then an adviser can point out that s/he is aware that the authority is acting unlawfully, that s/he cannot therefore let the matter drop, and needs to speak to a manager. Arguably, unless the authority has some reason to disbelieve an applicant, her/his own account of the situation provides reason to believe. If the applicant s own account is all that is available, then this argument can be made. Tactically, however, it is preferable, if possible, to obtain some other evidence if that required by the authority is impossible to provide. A homelessness officer may be reluctant to reverse a previous decision purely on legal argument. If new evidence is produced, this provides a reason for the officer to do so. Think creatively there will generally be some other evidence that can support the client. An adviser can then either ask the authority to obtain this, or do so themselves. For example, if written confirmation on age is not forthcoming, an adviser could telephone an appropriate person (teacher, church official, adult relative/friend), ask them to confirm age, make a careful note of the conversation, (date, time, who the person is, and her/his contact details), and then use this record as evidence. Note that once the authority has reason to believe that an applicant is homeless, eligible for assistance, and has a priority need, accommodation pending inquiries must be provided. The authority cannot lawfully postpone this duty by, for example having a policy that no accommodation is provided until a formal mediation appointment has taken place. Nor can it decline to start inquiries until after mediation as long as it has reason to believe the applicant is homeless (section 184(1) Housing Act 1996). An adviser can advocate by telephone or letter. This is a matter of personal preference, and can depend on how much 18 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

19 time is available. In the event that verbal advocacy does not work, a letter can then be faxed to a senior homelessness officer or the authority s legal department, setting out the duties and outlining how the authority has breached them. If an urgent appointment with a solicitor has been arranged, this should be included in the letter. It should be sent to the authority s legal department, and warn that legal action may be taken if an acceptable response is not received by the relevant deadline (for example, if the client will be street homeless that night, ask for a response by 4pm). It is possible that during the telephone conversation the homelessness officer will have said something which can support the argument that the authority is in breach of its duties. For example, s/he may indicate that s/he has applied a higher test than reason to believe by stating that the authority will not accommodate her/him because s/he has no proof of age, for example. Such evidence should be quoted in the letter to the authority, so advisers should always make a clear note of the details of any conversation with an authority officer, noting the date, time, and name of the officer, and attempting to record the exact wording of pertinent phrases. As well as assisting with an informal challenge, such records are invaluable evidence if the matter proceeds to court. If an informal challenge is unsuccessful Sometimes even a perfect argument will not work. Ultimately, if the authority refuses to take an application or provide accommodation, a legal challenge will be necessary. This will mean that an adviser will need to contact a solicitor who can pursue judicial review proceedings (see page 20 for more information on judicial review). Where advisers deal with a lot of homelessness cases, it is a good idea to set up referral procedures with local solicitors, establishing a named contact from both advice agency and the solicitors firm, and setting out details of what documents and information should be provided on referral. Advisers should not see referral to a solicitor as giving up or failing a client. Making a referral promptly when it is clear that an authority will not budge is the most effective way of assisting clients. If an adviser has advocated well for her/his client during an informal challenge, this will provide invaluable information and evidence in any legal proceedings. When advocating, advisers should try to do the following. Ascertain the reasons given for a decision. For example, My client is homeless and 16 therefore in priority need but he was not accommodated last night: why is that?, or Could you tell me why you have not accepted the letter from our client s mother as evidence of homelessness? Put the legal position to the officer concerned to obtain her/his response. For example, but you don t need to be satisfied that my client is 16 do you? Section 188(1) requires that you only need to have reason to believe he may be. If unlawful policies or procedures are indicated, check these with the authority s officer, ie I m sorry, are you saying that, and try to get an almost verbatim record of particularly interesting statements. Ask for a copy of the relevant policy or procedure. Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 19

20 Make clear records of all conversations with homelessness officers, noting the date and time of the conversation and the officer s name, job title, and contact details. Ask the officer for a written statement of reasons for the decision, and make a note that you have requested this. Send all relevant evidence to the solicitor if and when you refer. Once a solicitor has accepted a referral, if s/he considers that the authority has acted unlawfully, s/he will normally write a letter before action to the legal department of the authority. This will ask the authority to change its decision within a set time limit, failing which legal action will be taken. The solicitor will need to argue the unlawfulness of the decision, and therefore the reasons for the decision given to you by the authority will be invaluable. If there is a strong case, an authority will often change its decision, as it will not want the inconvenience and cost of court proceedings that it is likely to lose. Formal challenges If an informal challenge fails then advisers will need to refer the client to a solicitor with a view to judicial review proceedings (see Judicial review below). If the authority has taken on the case, made inquiries and then issues a negative decision, this can be challenged by statutory review (under section 202 Housing Act 1996) (see Statutory review, page 21). Judicial review Judicial review is a method of challenging public bodies regarding the exercise of their powers and duties. Proceedings are carried out in the administrative section of the High Court. Note that the Court will not substitute the authority s decision for its own. The approach is to look at the process of the decision-making, for example: have relevant matters been taken into account? has the law been applied correctly? has the authority acted reasonably? An authority is allowed a range of discretion when making decisions and therefore the Court will only intervene in the event of a significant flaw in the decision-making process. Process The High Court requires that action be taken promptly, at most no more than three months from the time the applicant became aware of the problem (although the Court can extend this in exceptional circumstances). In some cases, even if the applicant is within the three-month limit, the Court may consider that there has been undue delay and refuse to consider the case. This means that advisers should ensure a referral to a solicitor as soon as possible if judicial review may be required. Initially, an application for permission to apply for judicial review is required. If this is granted, the matter will proceed to a full hearing. In urgent cases (for example, where the client has no accommodation), the client s legal representative can apply for an injunction to compel the local authority to do something or prohibit it from doing something (for example, compelling the authority to provide interim accommodation) until the full hearing. An injunction can be obtained very quickly, 20 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide

21 theoretically within 24 hours, although it often takes some time before it is possible for the client to get an appointment with a solicitor. If the matter proceeds to a full hearing then the Court can make the following orders: mandatory: an order requiring the authority to carry out some act prohibiting: stopping the authority from carrying out some act quashing: an order that quashes a decision and requires the authority to come to a new decision declaration: making a statement concerning the action of the authority (for example, that a policy is unlawful). What decisions can be challenged by judicial review? In relation to homelessness, challenge by way of judicial review is generally only available for decisions on which there is no right to request a statutory review (see Statutory review below), for example, where the authority: fails to accept an application fails to carry out inquiries fails to provide or defers provision of interim accommodation fails to provide or discontinues accommodation pending review provides unsuitable interim accommodation under section 188(1) fails to notify the applicant, in writing, of a decision within a reasonable time fails to provide accommodation after admitting a housing duty, or makes provision of accommodation subject to unreasonable conditions. Judicial review and public funding Advisers should also bear in mind that judicial review is largely an option only for those entitled to public funding from the Legal Services Commission (formerly Legal Aid). Some people may have to pay a contribution. To check entitlement for public funding, advisers can use the calculator on the CLS website (see appendix 2, page 38, for details). In addition to the means test, there is also a merit test. There must be sufficient benefit to the client of taking the legal action, taking into account the chance of success, the benefit to the client of success, and the amount of time and work the case will take. The more evidence there is that the local authority is acting unlawfully, the higher the chance of success. Statutory review Under section 202 of the Housing Act 1996, applicants have the right to request a review of many decisions made under part seven of the Act. Many examples of bad practice in relation to 16- and 17-year-olds involve the outset of a case, for example, getting the authority to make inquires and secure suitable interim accommodation. However, other issues that have been reported include: being unreasonably found to be not homeless being unreasonably found to be intentionally homeless Supporting 16- and 17-year-olds making homelessness applications: a good practice guide 21

22 being found not to have a priority need, usually after making an application aged 17 and having turned 18 while the application was being processed. Each of these are discussed in more detail later in this section. Time limits A review must be requested within 21 days of the date the applicant is notified of the decision (section 202(3) Housing Act 1996). This time limit can be extended if the authority agrees to this. The local authority then has 56 days (eight weeks) from receiving the request to reach a decision. Again, this period can be extended if the authority and the applicant agree a longer period in writing. 8 Advisers should be aware that local authorities are often reluctant to extend the time limit for requesting a review, especially if there is no good reason why the applicant did not request the review within the time limit. If requesting an extension to the time limits, advisers should spell out any mitigating circumstances, for example, where the client has been in hospital and therefore unable to request a review. An unreasonable refusal to extend the time limit may be challangeable by way of judicial review (see page 20). Review procedure An officer not connected with the original decision and senior to the officer who made that decision must carry out the review, 9 although the officer responsible for the first decision may assist and/or make further inquiries. Once a review has been requested, the authority should give the applicant details of the procedure it will follow to undertake the review and the date that all supporting information is required by. If the reviewing officer decides that there has been an issue with the original decision-making process, but is nonetheless minded to still make a negative decision on the application, s/he must notify the applicant of the decision and give reasons for it. The applicant then has the opportunity to make further submissions. 10 A reviewing officer must make the decision on the basis of facts known to her/him at the time of the review decision. 11 This means that advisers need to be careful that, if possible, the review decision is not made after the client reaches the age of 18, as technically s/he would no longer be in priority need due to being due to her/his age (although s/he might still be in priority need because, for example, s/he is vulnerable). If the original decision was flawed, however, an adviser could argue that an authority cannot reasonably make such a decision, as it would be effectively profiting by its own default. Note that this same regulation can work in the applicant s favour if the issue is one of local connection through residence; an applicant who was found not to have a local connection with the district may have established one, usually by being resident in the district for over six months, by the time a decision on review is reached. On reviewing a decision, the local authority can uphold its original decision, replace it with a new decision, or withdraw the original decision and ask the homelessness section to make further inquiries. If a decision is withdrawn and a further decision is made that the applicant is not satisfied with, s/he can request a review of the new decision. 8 Regulation 9, The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999; SI 1999 No.71. NB in cases involving local connection the time period is 10 weeks, or 12 weeks where an arbitrator is appointed. 9 Regulation 2, SI 1999 No Regulation 8(2), SI 1999 No Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57; HLR 7, HL. 22 Supporting 16- and 17-year-olds making homelessness applications: a good practice guide