‘Homeless Legislation – a thing of the past?’

[Update at the end of the post 15/11/2012]

Now that the Guardian has the story, I feel able to quote a briefing paper by Andy Gale of the DCLG that had found its way to me. This is the briefing that Andy Gale has been giving to Council officers (not councillors, as far as I know) on what he gives as the DCLG view of the post-Localism Act world, how Councils should implement it, and how officers should sell this to Councillors.

And it makes very interesting reading. Please note that there may be a more considered post on the issues and policy views to come on this blog in a bit. This post isn’t that one.

A copy of the briefing paper is here.

The briefing paper is aimed at council officials, effectively setting out the policy proposal that should be put to Council members and cabinet. It is, then, a DCLG briefing to unelected Council officials on how to steer Council policy.

You cannot separate the homeless changes in the Localism Act from the Allocation changes [...]

Avoid as far as possible the risk of the changes being used poliitically leading to statements such as-

‘It’s a power not a requirement so we don’t need to do it’
‘It has come from the Government so shouldn’t we reject it on principle politicially’
‘Isn’t this all about cuts and welfare reform!’
‘Surely the homeless are in greatest housing need’

And as part of the ‘strategic package’ Council members should be told:

Homelessness can be manipulated to guarantee a fast track into social housing. This means fewer properties are available for other housing needs groups and transfer cases leading to frustration.

The social housing stock is reducing and only X [sic] number of empty properties are available to let in each year.

[...]

[The homeless] can apply for social housing equally with all other applicants but their homeless status will no longer give them an advantage over tenants and other households in urgent housing need

[...]

With so few properties should we help only those most in need of help, transfer tenants and some groups who make a special contribution?

And, of course, council members should be told that:

We can change the balance in our social housing estates by giving more priority to new categories such as:

Low Income households who are working?
Some groups who are undertaking training or volunteering?
Those prepared to undertake training course [sic] on how to be a good tenant
Clear rent account cases and good behaviour?
Ex-armed forces

So far, so much policy spin and issue blindness masquerading as ‘avoiding a political response’, which, although apparently coming as a surprise to the Guardian and a lot of people on twitter, is not a surprise to anyone who actually followed the development of the Localism Act. This is exactly what the Localism Act was intended to enable, along with the flexible tenancy regime.

But then we come to the nitty gritty of policy and implementation.

The discussion of policy options on ‘ending’ the homeless housing duty in the PRS, on pages 3-5 is fascinating. The pressure is to have a ‘full’ policy implementation – described as ‘ending the duty for all accepted cases’ (meaning all homeless duty cases to be discharged by PRS offers, though the language used is telling). However, it is acknowledged that most LAs are likely to go for ‘ending the duty for a % of cases – less targeted’, where the availability of PRS supply will determine the % that have duty ‘ended with a PRSO’.

The answer to this issue, at least in parts of the country where there is still some available social housing, is that Councils:

May well need the reasonable preference for accepted homeless cases to be reduced to the bottom of the reasonable preference groups to ensure that a social housing offer doesn’t come before a PRSO offer.

In any event, a ‘key message’ should be sent out to applicants and stakeholders, which ‘as a minimum’ should state:

-Homelessness will no longer give automatic priority for social housing
-Access to social housing is limited but priority will be given to the following groups a, b, c etc
-Most households in the future who is [sic] accepted as homeless will/may have that duty ended through one offer of suitable private rented accommodation

And now for the master stroke. Gatekeeping! Pages 7-8 of the briefing document. Yes. the DCLG are advocating a policy of gatekeeping.

First we have a ’4 message priority statement’:

1. The Council will continue to meet its legal duties to homeless households but that homelessness will no longer give priority for social housing
2. The Housing Options Service is now a service for all residents who need advice on their housing options or to help prevent homelessness and is no longer just a homelessness service
3. Access to social housing is limited but priority will be given to low income working households (plus any other local priorities set by the authority).
4. Due to resource constraints and high private sector rents in the district any household in the future who [sic] is accepted as homeless will have that duty ended through one offer of suitable private rented accommodation.

Then how to deal with homeless applicants:

Step 3 An approach for dealing with new homeless cases post enactment.

-A household approach claiming to be homeless and it appears that they may have a priority need
-They are given clear advice on their options and the clear 4 message priority statement above is explained and reinforced.
-The key message from that statement is reinforced which is that being accepted as homeless will only result in PRS accommodation and will not be likely to result in an offer of social housing
[...]
- Where homelessness cannot be prevented and a homeless application is lawfully triggered the household will be offered one of two options 1) The prevention alternative PRS accommodation route option or 2) the Homelessness Application Route.

The ‘Alternative Prevention Route’ means that a household has

the choice of:
a) remaining with relatives or friends and finding PRS accommodation themselves in their own timescale backed by any deposit or Bond guarantee scheme
b) Remaining with relatives and friends and receiving 2 or several offers of accommodation through the private sector access team
c) If they are physically homeless and have no relatives or friends to stay with the PRS access team can make one immediate offer of PRS accommodation of their choice depending on the availability that day.

Those that take a prevention option which is outside the district could be allowed to remain on the Council’s Housing Register (although of course they will not be granted reasonable preference for being homeless). This will allow households to seek social housing through work in the district, or some other locally set criteria.

Meanwhile the Homeless Application route

The target time for all homelessness investigations and decisions will be no longer than 48 hours. [...] Once sufficient evidence is obtained a decision will be taken.

[...]

Cases accepted as being owed the full homeless duty will receive one immediate offer of suitable private sector accommodation to end that duty. Careful pre-offer assessment will need to be undertaken into employment, schooling, health and support factors and any areas where there may be fear of violence.

[...]

The prevention option would give the applicant more choice of area for the PRS offer and is therefore likely to be chosen as the default option.

This appears to be advocating gatekeeping, pure and simple. It is not lawfully open to an Authority to offer a housing options ‘deal’ before taking a homeless application. It is not lawful for an Authority to send away those who appear to be homeless, eligible and in priority need to ‘stay with relatives or friends’ while they look for their own accommodation. The s.184 duty is triggered on presentation to the Authority, not at whatever point housing options decide that the applicant isn’t going to accept the ‘deal’.

Yet here is Andy Gale, policy adviser at the CLG, advocating just that as a model for housing options practice.

And what of existing (pre 8 November) applicants in temporary accommodation? The new PRS discharge doesn’t apply. However:

Accepted homeless cases in temporary accommodation will by law retain their reasonable preference status [...] However, that RP status can be set to the lowest reasonable preference level that can lawfully be given. [...] This may effectively mean that existing accepted homelessness cases will not be likely to obtain an offer of social housing.
[...]
There is the option that all existing cases could be written to and informed that the Council has met its legal duty to provide temporary accommodation and that duty has been met.

There is the option to ‘close’ the case as the duty has been met and the household is adequately housed in temporary accommodation.

[...]

All to be provided with the option of taking a ‘qualifying offer’ in the private rented sector.

What is proposed, then, is that Councils should adjust the degree of reasonable preference for homelessness to make it practically impossible for pre 8 November 2012 applicants (and those with an existing duty owed, and in temporary accommodation) to obtain a permanent social housing allocation.

That is a definition of ‘reasonable preference’ that it would be interesting to see tested in the courts.

It is also an interesting idea that the temporary accommodation occupied by many existing applicants could actually be considered as suitable for long term, semi-permanent occupation. That would seem to give rise to a whole other set of challenges.

The DCLG vision, then, is of a complete separation between Part 7 and social housing, with reasonable preference downgraded to the point of meaninglessness. The availability of discharge through the PRS is seen as a means of reducing the number of homeless applications, the conclusion being “inevitably that new statutory homelessness applications will become minimal”. However, that reduction is apparently predicated on unlawful gatekeeping and a frankly astonishing belief that most homeless applicants are only making an application as a means of gaining social housing, and will just stay with their families instead.

Gatekeeping has been treated with a nod and a wink by the DCLG and its predecessors for many years, but it is surprising to see a DCLG policy advisor openly advocating it.

As the briefing notes at several points, the availability of suitable PRS properties for discharge is key.  And here is the great gaping hole in this wheeze. The only acknowledgement that this might be tricky for Councils is a note that:

A procurement exercise is required to source accommodation providers so that there is always PRS accommodation available to the Council. For some authorities in London this may inevitably mean looking for accommodation outside their area.

(This, one might think, is a rather different approach to out of borough placement to that publicly espoused by the DCLG in the draft guidance that followed Grant Shapp’s description of out of borough - “Not only do I think it’s unfair and wrong, I have also made the legislation and guidance very clear that they are not to do this.”)

Just how likely is that that Councils, particularly in London (anywhere in London) are going to be able to find much in the way of PRS property that meets the suitability requirements of the Suitability Order and is somehow miraculously available for a rent within the LHA limits (or Universal Credit cap!).

The other issue noticeably avoided in the briefing is that PRS discharge (or gatekeeping people into the PRS without the protection of the suitability requirements) will lead to an increased level of repeat applications. Households accommodated for a 6 month fixed term (or 12 months if via PRS discharge of duty) then homeless again when the landlord serves notice. Rather than a fall in statutory homeless applications, the approach set out in the briefing may potentially see them rise, alongside the rise in homelessness already taking place.

Assuming there are any housing lawyers left, there will certainly be a rise in challenges, on suitability, on gatekeeping, and given the evidence of this briefing, maybe to Council policy too.

And yes, the title of this post is a direct quote from the briefing…

[Update. The Guardian picked up on this post and quoted it substantially here. As can be seen from the Reader's Editor note at the top of that article, CLG have complained forcefully to the Guardian about the identification of Andy Gale as being of CLG.

The exact wording of their denial, that "Andy Gale is not employed by the department and that it has no contractual arrangements with him." is, in an entirely speculative manner, possibly interesting.  However, it is clear that CLG do not want to be publicly associated with Andy Gale's briefing and indeed 'Andy Gale CLG Policy Advisor' has now been removed from the speakers listing for a Capita conference in January 2013, for which he was included until the evening of Tuesday 13 November, being after the publication of the Guardian article. It is also very clear that Andy Gale has been using the title 'Policy Advisor CLG' in these briefings and for many conference appearances in the last couple of years. There may be more to this story.

Anyone who can shed a little light on Andy Gale's relation with/to CLG (up to the afternoon of Tuesday 13 November 2012) is very welcome to contact me - contact@nearlylegal.co.uk in confidence. ]

[Update. And then the whole tale came out.]

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Posted in Allocation, FLW article, Homeless, Housing law - All, Introductory and Demoted tenancies, Regulation and planning, secure-tenancy and tagged , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

26 Comments

  1. Saw the Guardian story on this earlier, and my first thought was that Councils acting according to Gale’s paper will be likely to find themselves in breach of the law. The Localism Act doesn’t actually give Councils the power to bypass Homelessness legislation.

    The bottom line remains that there is a statutory duty to investigate whether someone presenting as homeless is eligible; homeless; in priority need; and not intentionally homeless. Any attempt to evade this duty to investigate would be unlawful. Some might argue that the ‘mediation’ process set a precedent for attempting to prevent homeless applications.

    This briefing paper is very worrying as, apart from pandering to a range of prejudices about homeless people, it seems to be looking for ways for Councils to duck responsibilities under the guise of ‘localism’.

    • Geoff,

      Localism doesn’t give councils the right to circumvent homelessness legislation, but, as this paper makes clear, it shifts the goalposts completely in terms of what the local authority can do to (lawfully) discharge duty. Pre-localism we had the classic PRS/Part 7 gatekeeping stand-off. As the detail of Localism now hits home its going to be a bizarre PRS-options/PRS-discharge dilemma. Some Councils will still no doubt dip into unlawful waters through a combination of incompetence (and to be fair I wouldn’t fancy having to try and explain this to prospective homeless households) and gatekeeping (Mk II), but underlying all of this is a Localism Act which pretty much tears up the old Part 7 rule-book.

      • In some ways, the Localism Act symbolises the incompetence of the present government, and their lack of understanding of social housing and homelessness.

        Its ‘reform’ of homelessness legislation seems to be based on assumptions that successful homeless applicants all got permanent Council housing; played the system at the expense of other social housing applicants (!); and then lived in tax payer funded luxury ever after. Gale’s Briefing Paper doesn’t exactly dispel any of these myths, and might well be seen as a guide on how to avoid housing the homeless in social housing. It also seems to be attacking ‘rights’ that no longer exist – indeed much of this stuff isn’t all that new.

        The ‘tearing up’ of the rights of homeless persons actually began much earlier. The requirement for all tenancies outside the Council sector to be either Assured or Assured Shorthold after the 1988 Housing Act opened up the route for the use of non-permanent private sector accommodation. The same Act’s abolition of rent controls also puts much of the private sector out of reach of poorer households.

        The 1996 Act part 7 further reduced rights by ending the duty to provide permanent accommodation, replacing it with the duty to provide temporary accommodation for 2 years. This was only partially remedied by the 2002 Act, which took out the 2 year limit and meant that the duty to secure accommodation applied until the applicant ceased to meet the 1996 Act s193 tests. The prevention strategy required by the 2002 Act has largely resulted in homeless households being dissuaded from making applications and being pressured to sign up with private landlords.

        The potential to house the homeless in insecure private sector lettings is already there in the 1996 and 2002 Acts, via the somewhat muddled rules re the use of offers of Assured Shorthold tenancies. The concept of ‘settled’ accommodation, rather than permanent, also predates the Localism Act, going back (at least) to Hoffman’s judgement in R v Brent LBC ex parte Awua (1995).

        The Localism Act is really the next step in a lengthy process of undermining the housing rights of the poor and the homeless.

    • Having attended an Andy Gale seminar, he does not advocate avoiding the duty to investigate his view is that it no longer needs the indepth level of investigation that it requires at the moment – to paraphrase:
      You look homeless, therefore you are
      You have two children with you, by the looks of them they could only be yours
      You’re not intentional…
      A new character for The Thick of It?

      • Well, his briefing paper certainly does advocate avoiding the duty to investigate, via the ‘alternative prevention’ route.

        And yes, The Thick of It did spring to mind ;-)

  2. Where are Councils going to get the PRS stock from? Why should the taxpayer be paying TWICE, in Housing Benefit for PRS plus funding Social Housing. Taxpayer being totally ripped off again. Bottom line is Social Housing is being privatised in stages. Taxpayers need to voice their verdict at the ballot box!

    • I’ll ignore the incorrect comment about taxpayers funding social housing. The real question is when there can ever be a well informed debate about these topics which addresses the problems.
      When priority needs applicants routinely turn down perfectly good accommodation you know there is something wrong with the system (Personal experience in London, documented in a recent NFTMO publication if people want that info.)
      Councils are paying more than double their own rents for ex-council flats, but justify this by saying that at least they have some control over tenants by letting directly. I’m presuming that the PRSO could be a private property managed by the council, but using the procurement route to source these properties smacks of an almighty wheeze which will lead to exceptions to the LHA limit for substandard properties.
      (And if the council let managed proerties, does that count as public or private sector for HB and welfare reform purposes ?)

      It’s a web that is becoming more and more snarled and it needs unravelling. I don’t know who will do that though.

  3. Of course the whole point of the guidance seems to be to ‘prevent’ homeless applicants out of a homelessness application, therefore the PRS they are being pointed to doesn’t need to meet the Suitability regs..that’s how they will have enough PRS..some Councils have been doing this for years.

  4. Andy seemed confused whether he was spouting official DCLG policy at the session I attended (The strange case of Dr Jeykll and Mr Hyde?).

    The feeling I got was something like:

    When presented by someone who looks a ‘bit homeless’ and a ‘bit in priority need’ the council officer would make an offer – option A – a PRS property this morning – option B – a homeless application this morning followed by a PRS property this afternoon.

    Others have mentioned a ‘nuclear’ option where part 7 is simply revoked completely – other DCLG staff have mentioned that Eric Pickles was once quoted in an interview as believing in extra-terrestrial life – so I suppose anything is up for debate …..

  5. I work as a homeless officer-Andy Gale’s paper is reflective of the real world. There should never have existed a link between Part 6 & Part 7 in the first place. To those of you who do not believe that the homelessness legislation has not been manipulated on a regular basis please get real!!!! Homeless legislation was intended so that those who were in the most need and have nowhere to go could access emergency housing it was not intended for families to contrive homelessness in order that their offspring could queue jump housing waiting lists. Housing Options is not about securing safe passage into social housing for those who believe it is their birth right. It is about ensuring that there is appropriate housing of whatever tenure in order that people have somewhere to live. The provisions of the new Localism Act make it easier to identify the genuine cases ahead of those who are trying it on. Long may it remain.

  6. I do take your point Andrew and we in the Legal world do live in the real world. Hard as it is for many homeless officers to believe, we do sort out those who are genuinely homeless from those who are not, but the Government hasn’t seen fit to change the legal definition of ‘homeless’ so if a client fits that definition, they are homeless. Tinkering with the allocation and discharge of duties has not altered that, leaving a potential running battle between Authorities and advice agencies when ‘gatekeeping’ or ‘Housing Options’ is offered instead of a homelessness application. And until Authorities start to use their statutory powers to tackle the serious disrepair in the private sector, it is not going to be resolved.

  7. Chris I have to say I agree with Andrew to an extent. There is a difference between sticking to the letter of the law and applying legal solutions in the everyday lives of people.

    Homelessness units have traditionally used gatekeeping not because they are inept or malicious, they have used gatekeeping because they have to operate under rules that are passed down to them by governments that are unachievable.

    The real villain of the piece is government policies, and not just Cameron’s arrogant 6th form prefects either, this stuff first came in under Labour.

    Politicians want to make it seem to the public that they are on top of homelessness and that when it occurs it is being handled sensitively and humanely.

    Successive governments have always held the carrot of funding over the heads of homelessness units. The logic being, “Make it look like you are following our guidelines and we’ll give you more money so you can deal with what is really going on”.

    Its a massive lie, it long has been and its time it was stopped. Politicians should fess up the fact that they never really get a handle on homelessness and stop putting all the blame on councils for covering up their own mistakes

  8. Re: Ben Reeve-Lewis
    13/11/2012 at 4:45 pm
    “Homelessness units have traditionally used gatekeeping not because they are inept or malicious.”

    I have worked with councils who have turned away a single parent mother with a 2 month old baby; a women who was escaping domestic violence who had been stabbed in the neck and had proof of this; a man with five kids who had evidence, local connection, the lot but was told that “even if we house you at some point at best we’d chuck you in a dodgy B+B on the other side of London”…

    This was happening all the time and involved councils all over London but no one would talk about it – even independent homeless charities because they were scared to bite the hand that feeded them.

    I spoke with a housing manager about a suicidal 17 year old and she said “what do you want me to do with him? his support needs are too high so I wouldn’t know where to place him”

    there is an unwritten procedure that councils work to in London. its a culture. few actively talk about it but all staff know what they need to do in terms of making it difficult for people to get their applications accepted. it has developed slowly over a period of about a decade and most staff automatically know the tricks to gatekeep. I believe its gone on for so long that many do not even consciously know they are gatekeeping as they have done what they do for so long they’ve lost all perspective.

    This gatekeeping process doesn’t just involve direct housing staff – it includes other people the homeless come into contact with – even security staff on the doors at some councils.

  9. I totally agree with that Mark, some Councils have such a deeply ingrained culture that they cannot see that they are doing anything wrong, let alone acting contrary to law. Some of these Councils do not even maintain the basic Public Service ethos that Councils are supposed to have. One in particular that I have had regular dealings with will use excluson from their offices as a way of dealing with anyone who even tries to complain!

  10. I was employed as a S202 review officer and was quite appalled at some of the decisions I had to review but always attempted to give good advice to the rank & file decision makers about the things they needed to consider – but the homeless management if I upheld an appeal asked why did you do that; we could have made them a quick offer from the register rather than having an appeal recorded. I said that regardless of what they may do, I had to follow the legal rules. Staff were told that if an applicant was directly referred by a solicitor or advice agency that they should take a homeless application; otherwise it was not necessary. Staff did not dare make any decision without management approval for fear a criticism. Eventually I was relieved of my 202 role. Prevention was essentially prevention of making a homeless application- we are now moving towards permanent “temporary” accommodation. If a person is not roofless then they are not regarded as homeless

  11. Colin, Chris, Mark…me too on all those counts at one time or another. And I think you make a valid point that the rules on the various stripes of gatekeeping are often so ingrained that front lone officers dont even know they are doing it. Often more complex knowledge is reserved for managers so that frontline staff cant challenge effectively.

    The best day of my life was chucking in my notice as a homelessness case worker to become a TRO. It stopped me pursuing a career as an alcoholic, which I was well on the way to in my time as a homelessness case worker and I’ve seen decent, committed people worn down and sacked for capability because they just cant make those decisions anymore.

    Homelessness, particularly in major cities is a treadmill for staff and applicants. All that happens is decisions get grinded out day in day, like a mincer.

    But you all well know where those pressures come from. The audit commission, the CLG. Shit rolls downhill not up and staff in homelessness units dont have the space or motivation to kick back because there is always another emergency in the queue.

    We all have horror stories of our own, I’ve been involved in things I feel profoundly ashamed to have been but you will all also have stories you are proud to tell, of staff bucking the system to help people out

  12. Well this is a bit odd: I am doing a workshop at the CIH Homelessness allocations and lettings conference on 20/21st November in Nottingham, and Andy Gale, Specialist Adviser, DCLG is doing one on discharging the homeless duty to the private rented sector. So he and presumably CIH thought he was an adviser to the DCLG on 7th November. Or it is a different Andy Gale or a different DCLG?

    • Certainly CIH and Capita listed Andy Gale as ‘Policy Advisor CLG’ in the November and January conference listings.

      I would be very interested to know what actually happens at the conference…

  13. http://www.oxford.gov.uk/Direct/67763Item14.pdf – at the bottom of the letter he seems to at least in 2007 be employed by the CLG. Perhaps he then set up one of those dubious but obviously perfectly legal tax efficient companies which the CLG just happen to use thereby meaning the CLG were not wrong when they said he wasn’t employed by them, as such.

    Perhaps the email address use is a mere oversight.

    That or I,m totally wrong which is probably the case.
    http://www.zoominfo.com/#!search/profile/person?personId=632562313&targetid=profile

    • Definitely advisor till 2008 – OBE citation (yes!) in 2008 says formerly DCLG advisor. And yes, has been listed as CLG advisor at endless conferences since 2008 – up till the Capita one in January 2013, until it was pulled when this all kicked off.

      The email address – yes, that is very interesting indeed. I had heard about that. And I have heard other things which I can’t go public on yet…

  14. The standard and level of knowledge when it comes to homelessness legislation is, in my experience, quite poor amongst the homeless officers/housing advisors that I have dealt with. There are exceptions of course, and they stand out among the less informed.

    Staff at management level can seem to operate on a ‘plausible deniability’ tactic, and are as knowledgeable as the staff, and arguably less so as they dont have the day to day repetition of common aspects of the legislation.

    It would take a total rehaul of departments to change the indoctrination of bad practice in a lot of Councils, and I agree with the comment above that said ‘Councils have such a deeply ingrained culture that they cannot see that they are doing anything wrong, let alone acting contrary to law.’

    This is not an excuse, and the facts are available to whoever wishes to find them, but it is hard for a conscientious and knowledgable officer to argue their point to a manager who doesnt know the law themselves, and whose priority is often not the statutory duty of the Council towards an applicant, but the running total of the amount of people in temporary accommodation (which of course, is always too high).

  15. Pingback: Scandalicious – the man from the ministry who wasn’t | HackneyRenters

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