Housing Allocation and Homelessness Liz Davies, barrister Garden Court Chambers 16 April 2015
Housing Allocation Housing Act 1996, Part 6 (not amended by Localism Act 2011); 2015 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Part 1: updated but largely same format as 2012 (draft at time of preparation of this slide).
Housing Allocation Eligibility for an allocation: HA 1996, s 160A(3) (5): Person subject to immigration control not eligible unless class of person prescribed by Regulations; Other classes of persons from abroad who are ineligible can be prescribed by Regulations.
Housing Allocation Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, SI 2014/2603 (W.257): in force 31 October 2014: Reg 3 persons subject to immigration control who are eligible for an allocation: cont d
Housing Allocation Class A: refugees; Class B: exceptional leave to remain, not subject to condition of no recourse to public funds; Class C: habitually resident without conditions; Class D: humanitarian protection; Class E: habitually resident with limited leave as relevant Afghan citizen.
Housing Allocation Reg 4: other classes of persons from abroad ineligible: Those who are not habitually resident and not exempt from habitual residence test; and Those whose only right to reside is as: Jobseeker or family member as jobseeker; or Initial right to reside for 3 months; or Derivative right to reside as Zambrano carer.
Housing Allocation Reg 4(2): persons exempt from habitual residence test: Worker; Self-employed; Accession State national subject to worker authorisation (Croatian nationals in first year of employment) until 30 June 2018 although can be extended; Family member of above; Certain permanent residence rights; Person in UK as result of deportation/expulsion/removal by compulsion of law.
Housing Allocation Eligibility: If in doubt, look it up; Regs 3 and 4 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, SI 2014/2603 (W.257); Chapter 2 Code of Guidance (note that draft Code refers to all derivative right to reside which is wrong).
Housing Allocation Draft Code para 3.8: Under section 20 of the 2014 Act, Local Authorities must take their homelessness duties into account in the exercise of their functions. In Wales the requirements in local homelessness strategies are expected to be incorporated into the local housing strategy where this is still prepared. Where a Local Authority still publishes a local homelessness strategy it is important that the allocation scheme is consistent with the housing strategy as a whole.
Housing Allocation HA 1996, s 167(2) reasonable preference: (a) (b) People who are homeless (within the meaning of Part 2 ); People who are owed any duty by a local housing authority under ss 66, 73 or 75 Housing (Wales) Act 2014. Para 3.19 draft Code refers to (b) and to people owed homeless duties under HA 1996, Part 7.
Housing Allocation Note that s.66 duty is owed to people who are threatened with homelessness ie likely to become homeless within 56 days; So reasonable preference includes people threatened with homelessness within that period.
Housing Allocation Other legislation: Social Services and Well-being (Wales) Act 2014: in force April 2016; Renting Homes (Wales) Bill; Equality Act 2010 & Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011.
Essential materials: Part 2 ( H(W)A ); Part 2 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness (draft at time of writing); Text-books: Housing Allocation and Homelessness (Jordans, 2015, Luba, Davies & Johnston) forthcoming; Homelessness & Allocations (Legal Action, 2012, Arden, Orme & Vanhegan).
Regulations: Allocation of Housing & Homelessness (Eligibility) (Wales) Regulations 2014, SI 2014/2603 (W.257); Homelessness (Suitability of Accommodation) (Wales) Order 2015 (drafts subject to consultation); Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 (draft); Homelessness (Review Procedures) (Wales) Regulations 2015 (draft); (Consequential Amendments) Regulations 2015, SI 2015/752 (W.59).
Commencement: Intended to be 27 April 2015; Transitional arrangements? Part 2 clearly laid out, each section containing duty is followed by section containing ending of duty; In plain English (and Welsh?).
Key points: Emphasis on advice & information to help to secure accommodation; Advice & information based on person-centred assessment of need; Definition of threatened with homelessness extended to 56 days: long period for local housing authority to help applicant to secure accommodation; help to secure accommodation duties owed to all applicants who are homeless/threatened and eligible; Cont d
Key points cont d Accommodation duties to applicants who are, or reason to believe may have, priority need; Use of the private rented sector to assist applicants and to bring homeless duties to an end; A gradual end to the becoming homeless intentionally test.
What has happened to becoming homeless intentionally test? Local authorities must opt in to decide that will have regard to the test (s.78(2)); Test can only be applied to some or all of categories specified by Welsh Ministers (s.78(1)): Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 (draft) currently all the categories of people who have a priority need; Local authorities could choose not to apply test to some of those categories eg young people, pregnant women and/or families (para 17.3 draft Code).
In order to opt in, local housing authority must: Make a decision to have regard to the test, and specify which categories of applicant it will be applied to; Inform Housing Minister in writing which categories and reasons notice will be published on Welsh Government website; Publish notice on LHA website at least 14 days prior to implementation; Must then apply the test to all applicants falling within specified categories (s.78(4)).
If test is to be applied, what duties does it affect? Not: duty to help to prevent applicant from becoming homeless (s.66); Duty to help to secure accommodation from becoming homeless (s.73); Interim duty to secure accommodation for homeless applicants in priority need (s.68). It affects: Duty to secure accommodation for applicants in priority need when s.73 duty ends (s.75(2)(d)).
Applicants who have a priority need but have been found to have become homeless intentionally: Will not be accommodated under s.75(1); Will have been accommodated under the interim accommodation at s. 68(3); Interim accommodation duty at s. 68(3) comes to an end when s.73(1) duty comes to an end (s.69(3)); Applicant will be entitled to interim accommodation for sufficient period, beginning on day of notification that s.75 duty will not apply, to allow him/her reasonable opportunity of securing accommodation (s.69(5)); No assistance from draft Code as to length of sufficient period : note that case-law concerning reasonable opportunity has held that this is personcentred: R (Conville) v Richmond upon Thames [2006] EWCA civ 718, [2006] HLR 45, CA
In the future (perhaps 2019): S75(3) provides that s.75(1) duty to secure accommodation for applicant in priority need when duty at s.73 ends will apply to applicants who: Became homeless intentionally; and Does not have suitable accommodation available for minimum period of 6 months; and Is eligible for help; and Has a priority need; and
Section 78(3) Cont d Is one of or resides with: Pregnant woman; Dependent child; Aged under 21 at date when application made; or Aged between 21 25 and was looked after, accommodated or fostered; and Did not receive offer of accommodation under this section in 5 years prior to this application.
Private rented sector: Any accommodation that is suitable and available for a minimum period of 6 months can bring the duties to help to an end: S.66 help to prevent applicant from becoming homeless (s.67(3) acceptance and (4) refusal); s. 73 help to secure accommodation (s.74(4) acceptance and (5) refuses). Cont d.
Private rented sector offer can end the duty to secure accommodation at s. 75(1): Acceptance of assured shorthold tenancy (s.76(2)(b)); Refusal of private rented sector offer (s.76(3)(b)) as defined at s 76(4).
Private rented sector offer defined at s.76(4): Offer of assured shorthold made by private landlord; Accommodation available for applicant; Suitable for applicant; Made with the approval of LHA in pursuance of arrangements made with view to bringing duty to an end; and Fixed-term tenancy of at least 6 months. Restricted case: presumption of private rented sector offer (s.76(5)).
Homelessness: definition at ss 55 58, see Chapter 8 draft Code No accommodation available for occupation; or Cannot secure entry; or Not reasonable to continue to occupy; Threatened with homelessness if likely that person will become within 56 days; not reasonable to continue to occupy if probable that will lead to person being subjected to abuse; Accommodation must be available and reasonable for all those who normally reside with the applicant as a member of his/her family and any other person who might reasonably be expected to reside with applicant (s. 56).
Eligible for help: S 61 and Schedule 2, Chapter 7 draft Code; Regs 5 and 6 Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, SI 2014/2603 (W.257); Identical to Regs 3 and 4 re allocation; Note that none of the duties apply to applicant who is not eligible except: Interim duty to secure accommodation where LHA has reason to believe that applicant may be eligible (s.68); and Referral to social services in cases involving children (s.96).
Priority need: s 70: applicant or person with whom she or he resides or might reasonably be expected to reside (chapter 16 draft Code): Pregnant woman; Dependent child; Vulnerable as a result of some special reason (old age, physical or mental illness, physical or mental disability): definition s. 71; Homeless as result of emergency; Aged 16 or 17 on date of application; Aged 18 21 at date of application & particular risk of sexual or financial exploitation; Cont d
Priority need: s 70: Aged 18 21 at date of application and was looked after, accommodated or fostered; former member of armed forces, homeless since leaving; Former prisoners with local connection and vulnerable.
Becoming homeless intentionally: Familiar definition at s 77; Chapter 17 draft Code of Guidance; Only relevant if: LHA has published notice of its decision to have regard to the test in relation to specified category of person; and Duty to secure accommodation to applicants in priority need at s 75(1) would otherwise apply.
Referral to another local authority, s 80: Local connection elsewhere, no local connection at originating LHA and no risk of domestic abuse; Local connection defined at s.81: Residence of own choice; Employment; Family associations; Special circumstances; NASS accommodation for asylum seekers. Referral to LHA in Wales or in England; Referrals from LHAs in Wales or in England; Chapter 18 draft Code of Guidance.
Duty to provide information, advice & assistance: s 60: Service to all people in its area, or people who have local connection; Free; Information & advice relating to preventing homelessness, securing accommodation, accessing any other help; Assistance in accessing help under H(W)A 2014, Part 2; Chapter 9 draft Code of Guidance.
Duty to assess person s case s62: on application if it appears person may be homeless or threatened with homelessness; Contents of assessment: s 62(5): Circumstances caused applicant to become homeless/threatened; Housing needs; Support needs; Whether any duty owed; Identify outcome applicant wishes; and Assess whether exercise of functions can contribute to outcome; Notify to applicant (s.63) with reasons for decisions against applicant s interests; Chapter 10 draft Code of Guidance.
Notification: S 63 outcome of assessment: reasons for any decision adverse to applicant s interests; Restricted case specific details; Notification of decision to refer to another local housing authority; Right to request review and time limit (21 days); Must be in writing; If not received, treated as notified if available at office for reasonable period for collection; Paras 10.47 10.53 draft Code of Guidance.
Section 68 interim duty to secure accommodation for applicants who the LHA has reason to believe may be: Homeless; Eligible for help; and Have a priority need; Duty continues if s.73(1) duty being performed (s.68(3)) or where applicant referred from LHA in England; Chapter 11 draft Code of Guidance.
Interim duty to secure accommodation ends (s.69): Notified no duty owed; or Notified that s.73 duty come to an end and no s.75 duty owed: if intentionally homeless, accommodation continues for sufficient person ; or Refusal of offer of interim accommodation; or Become homeless intentionally from interim accommodation; or Voluntary ceases to occupy interim accommodation; or Power to secure accommodation pending decision on review; Paras 15.34 15.42 draft Code of Guidance.
Section 66 duty to help to prevent applicant from becoming homeless: Applicant is eligible and threatened with homelessness; What does it mean (s.65): Reasonable steps to help having regard to need to make best use of resources; Not required to secure offer of Part 6 HA 1996 accommodation; Not required otherwise to provide accommodation; Examples at s.64 and chapter 12 and paras 15.1 15.25 of draft Code.
Section 66 duty ends upon notification to applicant (s.67) that: Applicant has become homeless (so s.73 duty applies); or Applicant no longer threatened with homelessness and suitable accommodation likely to be available for occupation for a period of at least 6 months; or Applicant refused offer of suitable accommodation likely to be available for at least 6 months, having been notified in writing of consequences of refusal or acceptance. Paras 15.26 15.33 draft Code.
Section 73: duty to help to secure accommodation: Applicant is homeless and eligible; help to secure defined at s.65, examples at s.64 and chapters 12 and 13 draft Code of Guidance; If applicant has priority need (or reason to believe he/she may have), interim accommodation duty continues: s.68(3).
Section 73 duty ends on notification to applicant (s.74): End of 56 day period; or Earlier, if reasonable steps have been taken to help to secure suitable accommodation; or Applicant has suitable accommodation available for occupation for minimum period of 6 months; or Applicant has refused offer of accommodation from any person which is suitable and available for occupation for minimum period of 6 months, having been notified of consequences of refusal or acceptance; Paras 15.43 15.56 draft Code of Guidance.
Section 75 duty to secure accommodation for applicants in priority need when s.73 duty ends: Applicants who were owed s.73 duty; and S.73 duty ended at end of 56 days, or earlier if LHA satisfied that reasonable steps were taken; and Applicant does not have suitable accommodation available for minimum period of 6 months; and Applicant is eligible for help; and Applicant has priority need; and If becoming homeless intentionally test is applied, applicant has not become homeless intentionally. Chapter 14 draft Code of Guidance.
Duty to secure accommodation ends on notification to applicant (s.76): Applicant accepts offer of Part 6 HA 1996 accommodation or offer of suitable accommodation under assured (including assured shorthold) tenancy; or Applicant refuses suitable interim accommodation under s.75, private rented sector offer or offer of Part 6 HA 1996, having been notified of consequences of refusal or acceptance; or Applicant has become homeless intentionally from s.68 or s 75 accommodation; or Applicant has voluntary ceased to occupy as only or principal home interim s.68 or s 75 accommodation. Paras 15.57 15.74 draft Code of Guidance.
Other ways in which duty can end (s.79) upon notification of decision, with reasons, to applicant: Applicant no longer eligible; Mistake of fact led to notification of duty; Applicant withdrawn application; Applicant unreasonably failing to co-operate. Paras 15.74 15.85 draft Code of Guidance.
Notification: S 84 written notice that duties have ended: no longer regards itself as subject to duty; Reasons; Right to request review & time limit; Paras 15.86 15.90 draft Code of Guidance.
Where accommodation secured (s.68 or 75): Suitable for applicant (s.59); Affordable (s.59(2)); Draft Homelessness (Suitability of Accommodation) (Wales) Order 2015: Take into account health needs, proximity & accessibility of family support, disability, proximity & accessibility of medical facilities & other support services which are currently used and are essential to well-being; Distance of accommodation from area if out of area; Significance of disruption to employment, caring responsibilities or education; Cont d..
B&B not suitable for person in priority need unless basic standard and occupied for 2 weeks, higher standard for 6 weeks Shared accommodation only suitable if meets higher standard; Private rented sector: reasonable physical condition, complies with all statutory requirements, landlord fit & proper person, draft written tenancy agreement provided. Chapter 19 draft Code of Guidance.
Other duties: Protection of property: ss 93 94, paras 11.12 11.18 draft Code of Guidance; Duty to c-operate: generally and over specific request: s 95; Co-operation in certain cases involving children: s 96.
Review (s.85): Decision as to eligibility; Decision that duty not owed under ss 66, 73 or 75; Decision that duty (ss 66, 68, 73 or 75) has come to an end; Decisions as to what reasonable steps were taken (ss 74(2) and (3)); May request review of suitability of accommodation if accepted it; Request made within 21 days or such longer period as agreed in writing; Procedure: s 86 and Homelessness (Review Procedures) (Wales) Regulations 2015, paras 20.1 20.24 draft Code of Guidance.
Appeals to County Court (s.88): On point of law; 21 days from notification or longer period if Court gives permission if good reason; May confirm, quash or vary decision; Power to secure accommodation pending appeal if under duty under ss 68, 75 or 82; S.89 appeals against refusal to accommodate pending appeal; Paras 20.25 20.36 draft Code of Guidance.