Housing Allocation and Homelessness Events... · Housing Allocation Draft Code para 3.8: “Under...

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) People who are homeless (within the meaning of

Part 2 Housing (Wales) Act 2014);

(b) 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.

Homelessness: Part 2

Housing (Wales) Act 2014 Essential materials:

• Part 2 Housing (Wales) Act 2014 (“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).


Housing (Wales) Act 2014 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);

• Housing (Wales) Act 2014 (Consequential Amendments)

Regulations 2015, SI 2015/752 (W.59).


Housing (Wales) Act 2014

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?).


Housing (Wales) Act 2014 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


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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).


Housing (Wales) Act 2014 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)).


Housing (Wales) Act 2014 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)).


Housing (Wales) Act 2014 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 person-

centred: R (Conville) v Richmond upon Thames [2006] EWCA civ 718,

[2006] HLR 45, CA


Housing (Wales) Act 2014 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


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 ‘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).


Housing (Wales) Act 2014 ‘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)).


Housing (Wales) Act 2014 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).


Housing (Wales) Act 2014 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).


Housing (Wales) Act 2014 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


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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;



Housing (Wales) Act 2014 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;



Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 • 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;



Housing (Wales) Act 2014 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;



Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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).


Housing (Wales) Act 2014 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;



Housing (Wales) Act 2014 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.



Housing (Wales) Act 2014 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.



Housing (Wales) Act 2014 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.



Housing (Wales) Act 2014 Notification:

• S 84 written notice that duties have ended:

• no longer regards itself as subject to duty;

• Reasons;

• Right to request review & time limit;



Housing (Wales) Act 2014 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..


Housing (Wales) Act 2014 • 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.



Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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.


Housing (Wales) Act 2014 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;


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