Homelessness For LawWorks Tony Martin Supervising Solicitor, Legal - - PowerPoint PPT Presentation

BPP LAW SCHOOL BPP LAW SCHOOL

Homelessness For LawWorks

Tony Martin Supervising Solicitor, Legal Advice Clinic tonymartin@bpp.com

BPP LAW SCHOOL

Homelessness Allocations Legal Aid

BPP LAW SCHOOL

Legal Aid is available in homelessness cases to:

• Review a homelessness decision

(including decisions about Housing Needs Assessments and Personal Housing Plans); and

• Review the suitability of

accommodation; and

• Appeal a decision to the county

court; and

• Advise on the failure of the Council

to take an application, make a decision or provide interim accommodation (“Gatekeeping”).

BPP LAW SCHOOL

• A homelessness

application is an application for homelessness assistance which may lead to the provision of accommodation;

Homelessness and Allocations

• It is therefore a safety net

provision;

• It is not an application for

Social (Council or Housing Association) Housing.

BPP LAW SCHOOL

• Applications for Social Housing

are made under Part 6 of the Housing Act 1996, to the Housing Register;

• The fact that a person is homeless

should give them reasonable preference on a Housing Register, regardless of the outcome of any homelessness application;

• The Localism Act 2011 gave

Councils a wider discretion in deciding who to admit to the Housing Register and what priority to afford people.

Allocations

BPP LAW SCHOOL

• Part 7 Housing Act 1996,

recently amended by the Homelessness Reduction Act 2017

• New online

Homelessness Code of Guidance

• Regulations
• Councils are required to

have a Homelessness Strategy

Homelessness legislation

April 18, Slide no: 6

BPP LAW SCHOOL

Local authorities must provide free of charge to anyone in their district information and advice on:

• preventing homelessness;
• securing accommodation when homeless;
• the rights of people who are homeless or threatened with

homelessness, and the duties of the authority;

• any help that is available from the authority or anyone

else for people in the authority’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and,

• how to access that help.
• Advisory services have to be designed with certain

specified vulnerable groups in mind.

S179 Advice

April 18, Slide no: 7

BPP LAW SCHOOL

• If a local authority have reason to believe that a person

may be homeless or threatened with homelessness, they shall make enquiries as to:

• (a) whether s/he is eligible for assistance, and
• (b) if so, what duty (if any) is owed to him/her.

The starting point

April 18, Slide no: 8

BPP LAW SCHOOL

There are a number of ways in which a person can be legally homeless:

• No accommodation anywhere in the world that s/he has

a legal right to occupy; or

• The accommodation is not available; or
• The applicant cannot gain entry to the accommodation;
• r
• The accommodation is not reasonable to continue to
• ccupy, including on grounds of violence, domestic or
• therwise.

Homelessness – s175

April 18, Slide no: 9

BPP LAW SCHOOL

• A person is threatened with homelessness if it is likely

that s/he will become homeless within 56 days.

• A person is also threatened with homelessness if they

have been served with a valid s21 notice and that notice will expire within 56 days (s175 (5)).

Threatened Homelessness – s175

April 18, Slide no: 10

BPP LAW SCHOOL

A complex mixture of immigration law, EU/EEA Treaty rights and the habitual residence test

Eligibility

April 18, Slide no: 11

BPP LAW SCHOOL

• A British citizen, who is

habitually resident in the common travel area

• A Commonwealth citizen

with a right of abode, who is habitually resident in the common travel area

• A person who is in the UK

as a result of being deported, expelled or

• therwise forcibly

removed by law from another country to the UK

Definitely Eligible 1

April 18, Slide no: 12

BPP LAW SCHOOL

An EEA National who is:

• A worker (includes part time and

seasonal workers, those workers who are temporarily incapacitated, and many people who lost a job and are looking for another)

• A self-employed person
• A close family member of the above

2 categories

• A person with a permanent right to

reside in the UK by virtue of Reg 15 (c) (d)(e) of the 2006 Immigration (EEA) Regs

Definitely Eligible 2

April 18, Slide no: 13

BPP LAW SCHOOL

• a person with refugee status
• a person with exceptional leave to remain or

humanitarian protection which is not subject to a “no recourse to public funds” condition

• a person who has indefinite leave to remain (settled

status) and who is habitually resident in the CTA, other than a person who has been given leave on the basis of a sponsorship undertaking and who has been resident for less than 5 years (unless the sponsor has died)

• a person who has limited leave to enter or remain in the

United Kingdom on family or private life grounds under Article 8 of the Human Rights Convention, which is not subject to a “no recourse to public funds” condition

Definitely Eligible 3

April 18, Slide no: 14

BPP LAW SCHOOL

Where the Council are satisfied that a person is homeless or threatened with homelessness and eligible for assistance, they must:

• Carry out a housing needs

assessment; and

• Draw up a personal housing plan

(PHP); and

• Continue to investigate the

homelessness application. If they decide that a person is either not homeless or not eligible, they must issue a written decision (s184) giving reasons

Homeless and Eligible

April 18, Slide no: 15

BPP LAW SCHOOL

• The content of the assessment must include:
• circumstances that caused the applicant to become

homeless or threatened with homelessness,

• housing needs of the applicant including, in particular,

what accommodation would be suitable for the applicant and any persons with whom the applicant resides or might reasonably be expected to reside (“other relevant persons”), and

• what support would be necessary for the applicant and

any other relevant persons to be able to have and retain suitable accommodation.

• There is a duty to notify the applicant, in writing, of the

assessment

Housing Needs Assessments -s189A

April 18, Slide no: 16

BPP LAW SCHOOL

• On completion of the assessment the LA must try to

agree with the applicant:

• any steps the applicant is to be required to take to secure

that the applicant and any other relevant persons have and are able to retain suitable accommodation, and

• the steps the authority are to take.
• The agreement must be recorded in writing.
• Where an agreement cannot be reached then the

authority must record in writing the reasons why they could not agree and set out the steps above.

• There is also a requirement to keep the assessment

under review until the LA ceases to be under any duty.

Personal Housing Plans (PHPs)

BPP LAW SCHOOL

• Requires Councils to help any eligible applicant to

secure that accommodation does not cease to be

• available. It ends when:
• Suitable accommodation likely for 6 months;
• After 56 days (except in s21 cases)
• Applicant has actually become homeless
• Refusal of an offer of suitable accommodation;
• IH from and accommodation made available
• No longer eligible for assistance
• Application withdrawn
• Deliberate and unreasonable refusal to cooperate

Prevention duty - s195(8)

April 18, Slide no: 18

BPP LAW SCHOOL

• Requires councils to take reasonable steps to

secure accommodation for any eligible homeless

• person. It ends when:
• Suitable accommodation likely for 6 months;
• After 56 days (except in s21 cases)
• Applicant has actually become homeless
• Refusal of an offer of suitable accommodation;
• IH from and accommodation made available
• No longer eligible for assistance
• Application withdrawn
• Deliberate and unreasonable refusal to cooperate

Relief Duty - s189B(7))

April 18, Slide no: 19

BPP LAW SCHOOL

Where a council decides that an applicant has deliberately and unreasonably refused to cooperate, the Council needs to be satisfied that:

• Steps in PHP are reasonable in the context of the

applicant’s particular circumstances and needs; and

• Applicant understands what is required of them and is

therefore in a position to make a deliberate refusal; and

• Applicant is not refusing to co-operate as a result of a

mental illness/other health need/difficulty communicating; and

• Applicant’s refusal to co-operate with any step was

deliberate and unreasonable in the context of their particular circumstances and needs.

Deliberate & unreasonable ss193B/C

April 18, Slide no: 20

BPP LAW SCHOOL

Two steps

Step 1

• Issue a warning

letter

• 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. Step 2

• Issue a section

193B (2) notice.

• This notice must

explain why the housing authority are giving notice and its effect, and inform the applicant of their right to request a review of the decision to issue the notice and the timescale.

BPP LAW SCHOOL

• Written notice must be given;
• The notice must specify which of the circumstances (in

either section 195(8) or section 189B(7)) apply; and

• inform the applicant that they have a right to request a

review of the housing authority’s decision to bring the duty to an end;

• and of the time frame within which such a request must

be made.

Notification to end Prevention/Relief

April 18, Slide no: 22

BPP LAW SCHOOL

• Intentionally Homeless from accommodation made

available at the relief stage.

• Decision that an applicant has deliberately and

unreasonably refused to cooperate.

• Refusal of a suitable offer of a “final accommodation
• ffer” (private sector) or a final Part 6.
• Final accommodation offer = AST of minimum 6 months.
• Final Part 6 offer = one offered in writing and identified as

such.

• Must have been informed of the consequences of refusal

and the right to request a review of the suitability.

• Additional suitability requirements apply to private rented

accommodation

Ending the Main Duty at Relief stage

April 18, Slide no: 23

BPP LAW SCHOOL

• The Council must consider whether:
• A person has a priority need for

accommodation; and if so

• The person has become homeless

intentionally.

• They can also consider whether the

persons has a local connection.

• Then the Council must issue a written

decision (s184)

• If this is a negative decision there is a

duty to give reasons

The Homlessness Application

April 18, Slide no: 24

BPP LAW SCHOOL

If the local authority have reason to believe that an applicant may be:

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

they shall secure that accommodation is available for his/her occupation pending a decision on his/her application.

Interim duty – s188

April 18, Slide no: 25

An applicant with family commitments must not be in B&B accommodation for more than 6 weeks

BPP LAW SCHOOL

Not eligible for assistance - duty ends immediately

• No Priority Need - duty ends when either:
• End of relief duty; or
• End of relief duty + no duty under section 190 (duties to

persons becoming IH) or section 193(2)

• Any other case - the later of:
• Notification of duty (if any)
• not owed the section relief duty/come to an end;
• decision following their request for a review as to the

suitability of a final accommodation offer or Part 6 offer made within the section 189B relief stage.

Ending the Interim duty

April 18, Slide no: 26

BPP LAW SCHOOL

Priority Need- s189

• a pregnant woman or a person with whom she resides or

might reasonably be expected to reside;

• a person with whom dependent children reside or might

reasonably be expected to reside;

• a person who is vulnerable as a result of old age, mental

illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

• a person who is homeless or threatened with

homelessness as a result of an emergency such as flood, fire or other disaster.

April 18, Slide no: 27

BPP LAW SCHOOL

Priority Need- Priority Need Order

• 16 and 17 year olds who are not relevant children
• 18, 19, 20 year olds who were at some point fostered,

looked after or accommodated by Social Services whilst 16 or 17;

• Vulnerable as a result of
• being looked after, accommodated or fostered, if aged 21
• r over, or
• having been a member of the regular armed forces, or
• having served a custodial sentence, been committed for

contempt or remanded in custody.

• being homeless due to violence, including DV.

April 18, Slide no: 28

BPP LAW SCHOOL

Vulnerability: after Hotak & Panayiotou

The test involves comparing the ability of the applicant to deal with the effects of being homeless with the ability of a hypothetical ordinary person to deal in the same situation. In order to be found vulnerable, the applicant must be:

• significantly more vulnerable than an ordinary person in

need of accommodation, and

• likely to suffer greater harm in the same situation.

Vulnerability in this context is a homeless applicant's vulnerability if s/he is not provided with accommodation, not her/his 'need of care and support' generally.

April 18, Slide no: 29

BPP LAW SCHOOL

• The vulnerability assessment is a composite decision

that involves not only the issue of whether an applicant can find and keep accommodation, but also whether s/he would suffer injury or detriment when homeless in circumstances where a less vulnerable person would

• not. All the particular difficulties of the applicant should

be carefully considered together.

Composite decision

BPP LAW SCHOOL

• The comparator is the 'ordinary person if made

homeless' and not a hypothetical or actual 'ordinary homeless person'; the Supreme Court held that 'an applicant should be compared with an ordinary person who is in need of accommodation'.

• It is for the local authority to consider what features the

'ordinary person in need of accommodation' would have, but this should be a national, rather than local, notion; a local authority does not always have to set out the characteristics of the 'ordinary person' comparator.

• Using statistical data to determine who the comparator is

and whether an applicant is vulnerable is dangerous and should be avoided.

The comparator

BPP LAW SCHOOL

• In Panayiotou the Court of Appeal has held that the test of being

'significantly more vulnerable' is to be read as applying a qualitative, not a quantitative test: 'the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189(1)(c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk

• f suffering such that the harm or detriment would make a

noticeable difference to his ability to deal with the consequences

• f homelessness' (para 64).
• Where a local authority decided that a homeless applicant was

not in priority need despite being 'more vulnerable than ordinarily vulnerable', this was unlawful because the authority was using a quantitative approach, i.e. basing its decision on an assessment

• f how much more vulnerable the applicant was required to be in
• rder to meet the threshold for priority need.

Significantly more vulnerable

BPP LAW SCHOOL

• For the purpose of applying the vulnerability test, a local

housing authority should assess vulnerability on the assumption that an applicant has become or would become homeless, not on the applicant's ability to manage while s/he is still housed: the authority must assess the homeless applicant's vulnerability if s/he is not provided with accommodation.

• Advisers should ensure that local authorities know why a

particular homeless person has greater difficulty in dealing with all the potential hazards of homelessness than other

• rdinary persons in need of accommodation. It is also

important to show the effect that any characteristic may have on a person's ability to obtain and retain

• accommodation. Expert evidence should be obtained if

relevant.

Applying the vulnerability test

BPP LAW SCHOOL

Disability: Public Sector Equality Duty

At each stage of the decision- making process about an applicant's vulnerability, the authority must consider the equality duty and 'sharply focus' on:

• whether the applicant has a

relevant protected characteristic

• its extent
• its likely effect, when taken

together with any other features,

• n the applicant if and when

homeless, and

• whether the applicant is

vulnerable as a result.

April 18, Slide no: 34

BPP LAW SCHOOL

Intentionally Homeless – s191

A person becomes homeless intentionally if:

• s/he deliberately does or fails to do

something

• in consequence of which
• s/he ceases to occupy accommodation
• which is available for his/her occupation ,
• and which it would have been reasonable

for him/her to continue to occupy. Council must be satisfied and cast genuine doubt in applicants favour, but the Council is the arbitrator of fact.

April 18, Slide no: 35

BPP LAW SCHOOL

Good Faith

• An Act or Omission in Good Faith in ignorance of a

relevant fact, cannot form the basis of an intentional homelessness decision. Examples:

• Ignorance of HB entitlement: Gibbons v Bury BC [2010]

EWCA Civ 327

• Leaving accommodation unaware landlord needed to
• btain a possession order, despite failure to follow advice

to go to Council: Ugiagbe v Southwark LBC [2009] EWCA Civ 31

April 18, Slide no: 36

BPP LAW SCHOOL

Causal connection

• For homelessness to be

intentional, the ending of

• ccupation of the accommodation

must be a consequence of a deliberate act or omission by the

• applicant. Having established that

there was a deliberate act or

• mission, the housing authority

will need to decide whether the loss of the applicant’s home is the reasonably likely result of that act

• r omission. This is a matter of

cause and effect.

April 18, Slide no: 37

BPP LAW SCHOOL

Local connection – s199

• The local connection provisions

allow one authority to transfer the duty to another authority.

• It is a power, not a duty.
• It applies at two stages:
• At the relief stage - may refer an

applicant to another authority in England only.

• At the main duty stage - may refer

an applicant to another authority in England, Scotland or Wales.

April 18, Slide no: 38

BPP LAW SCHOOL

Local connection test

A person has a local connection with the district of a local housing authority:

• because s/he is or in the past was, normally resident

there, and that residence is or was of his/her own choice;

• because s/he is employed there;
• because of family associations; or
• because of special circumstances.

Time spent in prison does not count towards normal residence. Time spent in accommodation occupied as a result of serving in the regular Armed Forces does count, as does time spent in NASS accommodation. —

April 18, Slide no: 39

BPP LAW SCHOOL

Main housing duty

The duty is to secure that accommodation is available for

• ccupation by the applicant. It ends if the:
• Applicant ceases to be eligible
• Applicant accepts Part VI offer
• Applicant accepts non shorthold from private

landlord/RSL

• Applicant accepts or refuses a private rented sector offer
• f a fixed term assured shorthold tenancy of at least 12

months’ duration

• Applicant is intentionally homeless from s193

accommodation

April 18, Slide no: 40

BPP LAW SCHOOL

Main housing duty cont.

• Applicant cases to occupy s193 accommodation as only
• r principal home
• Applicant refuses an offer of accommodation under

s193, which the Council is satisfied is suitable, having warned the applicant of the possible consequences of refusal and of the right to request a review of the suitability of the accommodation

• Applicant refuses a final offer under Part 6 (Housing

Register) or nomination to RSL, which the Council is satisfied is suitable, having warned the applicant of the possible consequences of refusal and of the right to request a review of the suitability of the accommodation

April 18, Slide no: 41

BPP LAW SCHOOL

Challenging decisions

The Act provides for a two stage process:

• The unfettered right of review (which

amounts to a reconsideration of the decision by someone more senior in the structure); and

• A appeal to the county court on a point
• f law only.

The reviewer must consider:

• The information in the original

application; and

• Any new information, material or

argument put forward

April 18, Slide no: 42

BPP LAW SCHOOL

Time limits: Applicant

• The applicant has 21

days to request a s202 review from the date

• n which s/he is

notified of the original decision

• The applicant has 21

days to appeal from the date on which s/he is notified of the review decision or the date s/he should have been notified.

April 18, Slide no: 43

BPP LAW SCHOOL

Time limits: Council

April 18, Slide no: 44

Decision review relates to Number of weeks The steps they are to take in their personal housing plan at the prevention or relief duty or of notice being given of deliberate and unreasonable refusal to cooperate and the effect of the notice is to bring the prevention duty to an end 3 weeks either from:  date review requested; or  date written representations received eligibility for assistance; not homeless; or not in priority need; or intentionally homelessness; or suitability of accommodation; or notice ending the prevention or relief duty or of notice being given of deliberate and unreasonable refusal to cooperate and the effect of the notice is to bring the relief duty to an end 8 weeks from date review requested referral under local connection provisions at relief or main duty stage 10 weeks from date review requested referral under local connection provisions at relief or main duty stage and it was taken by a person appointed by the notifying authority and the notified authority in accordance with the Schedule to the Homelessness (Decisions on Referrals) Order (SI 1998 No.1578) 12 weeks from date review requested

BPP LAW SCHOOL

Decisions that are reviewable

• 1. eligibility for assistance;
• 2. not homeless;
• 3. not in priority need;
• 4. intentionally homelessness;
• 5. of the steps they are to take in their personalised

housing plan at the prevention duty;

• 6. of notice given to bring the prevention duty to an end;
• 7. of the steps they are to take in their personalised

housing plan at the relief duty;

• 8. of notice given to bring the relief duty to an end;

April 18, Slide no: 45

BPP LAW SCHOOL

Decisions that are reviewable cont.

• 9. notice under section 193B(2) in cases of deliberate and

unreasonable refusal to co-operate;

• 10. all local connection referrals
• 11. suitability of any accommodation offered, exceopt

interim accommodation.

April 18, Slide no: 46

BPP LAW SCHOOL

Review Procedure

• The overlapping decisions mean that

it will be possible for applicants to have more than one review running at the same time and/or overlapping.

• There is nothing to suggest that an
• fficer conducting the review cannot

carry out more than one review.

• The Council can issue separate

decisions or a single decision or more than one review point.

April 18, Slide no: 47

BPP LAW SCHOOL

Approach of the Courts

• It is therefore very important that, while Circuit Judges

should be vigilant in ensuring that no applicant is wrongly deprived of benefits under [the Act] because of any error

• n the part of the reviewing officer, it is equally important

that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.

• Accordingly, a benevolent approach should be adopted

to the interpretation of review decisions. The court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision.

April 18, Slide no: 48