The bedroom rule is a “bright line rule” contained in Reg 13D(3) of the HB Regs 2006 which entitles HB claimants to one bedroom for each of the following: a couple, a person who isn’t a child, two children of the same sex, two children who are less than 10 years old, and a child.  In Burnip, and Trengove, the applicants had been assessed for DLA as requiring day and night care from another person.  However, there was no provision in the bedroom rule for an extra bedroom for a carer.  [Ms Trengove's claim was continued after her death by her personal representative]  This rule has been changed from 01.04.2011 so that carers requiring a bedroom can be taken into account, but these claims related to periods before then.  In Gorry, two of Mr Gorry’s children, both girls, had (different) disabilities which meant that it was inappropriate for them to share a bedroom.  The rule change after 01.04.2011 does not apply to persons in Mr Gorry’s case so the judgment will have a continuing significance in such cases.

The questions were whether the bedroom rule was discriminatory under Article 14 of the European Convention; and, if so, whether there was any objective and reasonable justification for their discriminatory effect.  They agreed with each other although Kay LJ gave the lead judgment on the former, answered in the positive; and Henderson J gave the lad judgment on the latter, answered in the negative.

On the former, the appellants’ case was that the rules had a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied.  The shortfall for these applicants was significantly greater than for other applicants because their HB was based on one room less than their objective needs.  Alternatively, drawing on Thlimmenos v Greece (2001) 31 EHRR 15, the right is also violated “when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.  The Court held that discrimination was established on the basis of either approach.  It seems to break new ground on the latter, as Kay LJ put it (at [18]):

Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenosin which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.  I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination.  However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established.  I can see no warrant for imposing a prior limitation on the Thlimmenos principle.

Kay LJ then went on – and this is, I suspect, properly obiter (see [19]) but significant – to suggest that the UN Convention on the Rights of Persons with Disabilities could have been used as as an aid to the interpretation of Art 14 so that, if its meaning had been elusive or uncertain, that uncertainty would have been resolved in favour of the appellants (at [22]).

So, there’s a lot of assistance there for future claimants/appellants where discrimination on the grounds of disability are pleaded.

We then come to justification and I really must applaud Henderson J’s meticulous examination of the benefits claimed by the appellants in the round.  He noted, first of all, that this was not a case where “very weighty reasons” were required as it was a case of indirect discrimination or failure to make an exception from a policy or criterion of general application, especially where social policy questions were in issue (at [28]).  Mr Burnip was entitled to incapacity benefit, DLA, and a student loan, in addition to his HB.  His weekly income was £288.09.  For hb purposes, DLA is disregarded; his reckonable income exceeded the applicable amount by £12.25; his maximum eligible rent, based on entitlement to one edroom, was £103.85, which was reduced by 65% of £12.25 (application of the taper).  In short, he was entitled to £95.89 pw for hb; his rent was £155.77 pw.  He received a discretionary housing benefit payment intermittently, it did not cover the shortfall or the difference between the one and two bedroom rate, and there were periods when he received nothing at all.

Henderson J made three crucial points: (a) incapacity benefit and DLA are designed to meet ordinary living expenses and not intended to meet housing needs – that is HB – so, it would be wrong in principle to regard “those subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay” ([45]); (b) discretionary housing benefit payments were not a complete or satisfactory answer to the problem that he needed two bedrooms but was assessed on the basis of one bedroom only because they are (i) discretionary, (ii) payable from a capped fund; (iii) could not be relied on to meet the difference between one/two bedroom rates; and (c) the difficulty in finding suitable accommodation and the probable need for adaptations mean that it is likely to require a long-term commitment for which there was a need for “… a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits” ([47]).  The same reasoning held good for Ms Trengove and for Mr Gorry.

The government seems to rely on discretionary housing benefit payments every time it reduces the applicable amount or makes other deleterious changes to the rules, and this case should be a salutary lesson to them that they cannot simply rely on that before the courts.

More generally, Henderson J said that the kinds of considerations which allowed the Court of Appeal to uphold discriminatory rules against persons with disabilities in the immigration context – AM (Somalia) at [29], Kay LJ, and [64]-[72] – were not relevant here where “we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard” ([64]).  He went on to say that the exception here is for a small category of persons (“relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”: [64]), so that the cost and resource implications would be modest.  Finally, as Parliament has now legislated for cases of the Burnip/Trengove variety, at a time of economic hardship, should “… be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy” ([64]).

The Court granted a declaration by way of relief, leaving it to Parliament to resolve the problem.

Joe Halewood, who runs a fine blog on supported housing at SPeye, has unearthed a rather alarming statement from the DWP buried in the impact assessment on under occupation changes to HB for social housing from October 2011. The passage (at para 5) reads:

“From 1 April 2013 it is intended to introduce size criteria for new and existing working-age Housing Benefit claimants living in the social rented sector. The size criteria will replicate the size criteria that apply to Housing Benefit claimants in the private rented sector and whose claims are assessed using the local housing allowance rules”

The implication is that this would include the shared accommodation/single room limit for single under 35s being applied to social housing. Joe has sought clarification from the DWP and we understand that Inside Housing may have as well, but so far, nothing from the DWP.

Does anyone know anything more about this? The effects could clearly be drastic. And does the DCLG know about this?

[Update 15 March 2012. The position of CIH on this is that the regulations, currently being drafted, have the effect that the power is to make a deduction based on the number of people in relation to the number of bedrooms. Under this method there cannot be anything smaller than one bedroom. We understand that the CIH are involved in the drafting process.

However, this doesn't explain the use of the word "replicate" in the DWP Impact Assessment. While it appears unlikely that the forthcoming property size regulations will have the effect on the under 35s feared, it would be good to have clarification from the DWP.]

Sullivan LJ found that this was sheltered accommodation, but, given that this question was said to raise a major issue for local authorities, made general comments.  Oxford’s position started, in their written argument, with the proposition that sheltered accommodation had to have six essential features: small, easily managed, self-contained accommodation with its own bathroom and kitchen; which is grouped together on a site; is designed specifically for the elderly, disabled or other vulnerable persons; is served by a warden, who deals with estate management issues and emergencies only; is served by an emergency alarm system; and has a communal common room, for social activities, and gardens.

Having started from that rather pedantic, overly positivist approach, it seems that during the oral argument they were effectively forced to resile from it.  They argued that at least some of the features had to be present.  This had to be correct, as Sullivan LJ observed, because not only was it the previously accepted position of the Upper Tribunal (CIS/1460/1995, Judge Mesher) but also Parliament had not defined the term in a statute which (let’s face it) has highly prescriptive definitions of most things ([17]).  Further, it was clear from Oxford’s own evidence from other organisations that the term “sheltered accommodation” is highly variable in practice and those organisations included “extra care” sheltered accommodation within its ambit.

So, Oxford then submitted that, as was accepted, Mr Basey’s accommodation was one rung below a care home and his care needs were so great that he did not live independently.  This was, then, supported accommodation.  That was an interesting submission in its own right, but the HB regs don’t refer to supported accommodation so it wasn’t going to get them very far.  And, as Sullivan LJ pointed out, “I can see no sensible basis for the blanket proposition that accommodation which is only ‘one rung’ below that which is to be found in a care home is not to be regarded as sheltered accommodation, whereas accommodation which is more than one rung below is to be regarded as sheltered accommodation” ([26]).

The Upper Tribunal had made the observation, in finding for Mr Basey, that it would have been perverse “if occupiers who had less need to use the common rooms in sheltered accommodation (because they are more able to manage on their own) were entitled to receive housing benefit to cover the cost of these rooms, while those, such as the Respondent, who had more need to use the common rooms (because they were less able to manage on their own) were not so entitled” ([27]). Oxford argued that it would be anomalous if Mr Basey was so entitled because others with self-contained accommodation, which included a kitchen and a bathroom, wouldn’t be entitled to HB in respect of fuel and cleaning of those rooms. Sullivan LJ wasn’t really having that – as he put it, “a line has to be drawn somewhere” – and the Regs tend to adopt the “broad assumption” that communal rooms are necessary in sheltered accommodation.

What will be particularly useful to both claimants and local authorities alike is Sullivan LJ’s final couple of substantive paragraphs where he draws a distinction, first, between “ordinary” and “sheltered” accommodation, and then between a “care home” and “sheltered accommodation”, as follows:

At one end of a broad spectrum, sheltered accommodation is distinguishable from “ordinary” accommodation because it will incorporate particular features which are not normally found in “ordinary” accommodation and are designed to meet the needs of occupiers who are vulnerable in some way, often by reason of age, and increasingly by reason of disability. The Appellant’s six “essential common features” are no more than a non-exhaustive list of examples of such features. The presence, or absence of a particular feature is not determinative.

At the other end of the spectrum a care home is not sheltered accommodation. The occupiers of a care home may well need a greater level of care than is available in very sheltered accommodation … but the level of care may well be determined more by personal choice and/or availability, or more probably lack of provision in a particular area. The emphasis in a care home will usually be rather more on care than accommodation, and this will normally be reflected in the basis upon which such accommodation is occupied. Typically the occupiers will occupy their rooms under licence. Of particular importance for present purposes – eligibility for housing benefit in respect of service charges for heating, lighting and cleaning common rooms in sheltered accommodation – those having exclusive possession of their own living space within that sheltered accommodation will be in occupation, and will be liable to pay the rent and service charges which are eligible for housing benefit, pursuant to a tenancy.

I can’t help but finish with the observation that the HB regs force local authorities to argue things which they probably wouldn’t want to argue otherwise.

In the first decision ([2011] UKUT 144 AAC), Judge Mark held that it did not [we discussed that decision here NL].  It was a void agreement because EM’s dad clearly knew that she lacked capacity (citing Hart v O’Connor [1985] AC 1000).

However, in somewhat dramatic fashion, Judge Mark returned to the matter ([2012] UKUT 12 (AAC) – not on BAILI yet but we have seen the judgment thanks to a friend of the blog)  in accordance with Rule 45(1)(a), Tribunal Procedure (Upper Tribunal) Rules 2008, which enabled him to re-open the decision if he had overlooked a legislative provision or binding authority which could have a material effect on the decision.  At this hearing EM brought an entirely new ground to the table, so to speak: contracts for necessaries, either under section 7, Mental Capacity Act 1995 or the common law position as exemplified by In Re Rhodes (1890) 44 Ch D 94.  And he also had the redoubtable Nathalie Lieven QC and David Blundell acting for EM (presumably pro bono, although this isn’t stated).

Although Judge Mark was in some doubt as to whether section 7 covered this matter (is the provision of accommodation “goods and services”?), he held rightly that the common law would cover this matter if the provision of this accommodation was a necessary.  Wychavon argued that it wasn’t necessary because EM had previously lived in the garage and could do so again; but, as Judge Mark pointed out, that flew in the face of the evidence which had been accepted by the judge in the first tier tribunal and was in some respects uncontested.

As Judge Mark points out, HB is not only payable where a person is liable for rent but in respect of payments for the dwelling which is occupied as a home, and EM was so liable.  Wychavon submitted that such matters were best dealt with through the Court of Protection.  Judge Mark agreed but was also right in saying that such applications take many months and, pending that application, a person without capacity should not be left without necessaries.

There is a parting salvo because it was clear that the issue here was not between EM and Wychavon but between Wychavon and Worcestershire CC, which had effectively passed the matter on: “It is very unfortunate if that is the case, and if this series of appeals at public expense has been made necessary because of arguments between different authorities as to from whose budget essential provision should be made”.

This is a decision of the Supreme Court. It considers the issue of whether deductions in respect of Social Fund Loan repayments and overpaid benefits can continue to be made after the making of a DRO during the moratorium period of 1 year after which time the debt will be written off. It also tidies up the existing law and introduces coherence which both parties sought.

Mrs. Payne had received a Social Fund loan of £843 in September 2007. In August 2009 she obtained a DRO listing the SF loan as a qualifying loan. On being informed of this the Secretary of State started to make deductions. Mrs. Cooper was determined to have been overpaid benefit and in December 2009 the Sec of State began making deductions from her ongoing benefit entitlement. In January 2010 she obtained a DRO listing the overpayment as a qualifying debt. The Sec of State continued to recover the overpayment.

The Supreme Court held that the Secretary of State for Work and Pensions cannot recoup loans and overpayments during the moratorium of a Debt Relief Order. (This is for the 1 year period after a DRO has been made). After that time the debt is written off for good.

The judgments of Cranston J in the High Court and the Court of Appeal were upheld. Further – the Supreme Court ruled that recovery of overpayments and Social Fund Loans from debtors should be brought into line. Henceforth bankruptcies shall not be treated differently from Debt Relief Orders. The cases of R V Secretary of State for Social Security ex p Taylor and Chapman [1997] BPIR 505 where it was held that deductions can continue to be made between the making of a bankruptcy order and the bankrupt’s discharge from bankruptcy were said to be wrongly decided. The case of R (Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327 [2008] 1 WLR 564 where it was held that once a bankrupt is discharged the liability to repay the Secretary of State is also discharged was said to be rightly decided.

The headline is that just shy of 800,000 properties nationally (including Scotland) will cease to be affordable, though there is considerable variation across areas and even across London boroughs. There is a projected national shortfall for the first time between HB claimants in the private sector and the number of affordable properties on the market.

Some of the results are very disturbing. Westminster has a projected shortfall of some 5,300 properties, Newham some 6,300 and Enfield some 12,000. Merseyside is short of 9,000 affordable properties and Birmingham 11,500.

I presume that this is based on existing rents. If landlords do reduce rents – as devoutly wished by the DCLG – then of course the picture will change. However, in areas of high demand (and for rented accommodation that includes much of the country) it seems unlikely that this will happen. Whatever happens, the next 12 months at least are going to be very difficult for a lot of people.

A new proposal, announced by the eminently sane and reasonable Councillor Phillipa Roe, is that from April 2013, Westminster are to maintain a naughty and nice list and to use it for awarding or withholding Council Tax Benefit.

we believe that potentially linking council tax benefit to certain levels of behaviour is a sensible and fair way forward that rewards those that play an active part in their community whilst cracking down on those that misbehave or break the law

Yes, they’ll know if you’ve been bad or good, so be good for goodness sake.

Quite where the funds to maintain such a list would come from is not clear. One suspects funding limitations would militate against checking it twice. No pouting now!

In SS, the issue arose because the first tier tribunal signally failed to approach the proceedings in the correct way in the absence of the Claimant.  It simply rubber-stamped the decision of the local authority without exercising its inquisitorial function properly or at all.  As Wikeley J pithily observed,

The First-tier Tribunal appears to have lost sight of those basic principles [concerning revision and supersession decisions] in this case.  I am not convinced that the local authority’s staff ever had proper sight of them.  The tribunal simply adopted wholesale the summary of facts as presented by the local authority’s decision maker …, as being “not … facts in dispute”.  Yet they clearly were in dispute in several important respects.

The disputes were substantial and material from the Appellant’s perspective and the local authority’s case had been “confused from the outset” ([14]) and actually, as the facts suggest, got worse with decision-making processes which were “at best obscure” ([27]).  Wikeley J remitted the matter back to a different first tier tribunal, in the absence of full evidence enabling him to make a decision there and then, but with the ringing words that, where the decision-making process has been so far defective or non-existent that there has never been a valid basis for a determination against the Appellant, in an extreme case the whole process can be held to be abortive and the appeal summarily allowed.

In MB, the matter was slightly more complicated because of the underlying allegations of fraud on the part of the Appellant, but the issues are interesting and important.  In essence, the Appellant was the legal owner of a property in Ireland and the first tier tribunal had found that the ownership of that property placed her outside the capital rules for entitlement to HB.  They had done so, however, without considering the laws of Ireland regarding beneficial ownership, or indeed without really applying any law about beneficial ownership as far as I could see it.  MB, who began as a litigant in person and was refused leave to appeal as such, was subsequently granted permission and was successful after the intervention of the Free Representation Unit, and it is right to point out that she was represented by Giles Robertson (FRU’s Treasurer), who did (by the account of Wikeley J, for it is he again) a fantastic job.

Mr Robertson demonstrated that the law on beneficial ownership was different in Ireland to England and Wales, and that it was unclear whether MB had any or what entitlement to the property in equity.  The key point, though, was that it was Irish law which was required to be applied in the circumstances.  As regards whether her interest was worth more than £25k, the first tier tribunal had also failed to apply Reg 48, regarding the valuation of capital held outside the UK.  He was also successful on another ground which was that the first tier tribunal had simply accepted statements as to MB’s income from two “accountants”, although that evidence was suggested by MB to have been provided for different purposes (to get a tenancy), without considering the contrary evidence of MB herself.  Although Wikeley J had regarded this submission as “unattrative”, Mr Robertson made the (wonderful) point that the argument was “advanced not because of its beauty but because of its truth” ([47]; it’s worth reporting that just for the sake of its brilliance).  The first tier tribunal hadn’t given any reasoning as to why it supported those statements over MB’s and was, therefore, flawed.

Mr Robertson was, however, unsuccessful on an evidential point of significance.  The local authority’s position was that MB was the legal owner of the Irish property; it was for her to disprove her entitlement.  Wikeley J agreed, although this required MB to prove a negative, ie non-ownership.  However, the point was that “a claimant must to the best of his or her ability give such information to the [local authority] as he reasonably can, in default of which a contrary inference can always be drawn” (Kerr v Department for Social Development [2004] UKHL 23, [63], Baroness Hale, citing CIS/5321/1998).

I’ll leave it there but suffice to say that things aren’t looking good for MB, and one might suspect that she will need to have Mr Robertson on speed dial.

And finally, we have MR, which is the odd one out being a decision of Paines J, but it seems to me to be of some significance in relation to resettlement of offenders.  The significant question was which rule was to be applied where the claimant had been recalled to prison to serve the remainder of a sentence and was on remand for another alleged offence.  Reg 7(13) of the HB rules applies to an absence which is unlikely to exceed 13 weeks where the person intends to return to the dwelling.  Reg 7(16)-(17) disapply that rule in the case of a person detained in custody on remand, where the rule is that the period of absence must not exceed 52 weeks.  Paines J held, after receiving submissions from the Secretary of State, that the latter rule applied to MR as he was unable to read the regulations in any other way ([20]).

This is a case which turns very much on its facts and as far as the Income Support claimant is concerned, turned out badly.

Mrs. M. was the divorced wife left in occupation of the matrimonial home. Her husband had first acquired the home without a mortgage for the sum of £69,950 in 1987. 15 years later he took out a borrowing charged on the property in the sum of £114,000. In the ancillary relief proceedings in 2007, Mrs M agreed to indemnify her husband against this borrowing for the transfer of the home to her. She was at that time claiming Income Support. She was unable to obtain the necessary re-finance to release her husband from his liability but continued paying the contractual monthly instalment.  In December 2008 she applied for this housing cost to be taken into account as part of her Income Support claim. The Decision Maker refused. Her appeal to the First Tier Tribunal (Social Entitlement Chamber) was allowed.  The Secretary of State’s appeal to the Upper Tribunal was refused. The Secretary of State appealed to the Court of Appeal.

Their decision turns on the interpretation of paragraph 15 of Schedule 3 of the Income Support (General) Regulations SI 1987/1967 (ISGR). This provides at (1) that:- “A loan qualifies under this paragraph [for housing costs] where the loan was taken out to defray monies applied for any of the following purposes – (a) acquiring an interest in the dwelling occupied as the home.” Paragraph 4(2)  of Schedule 3 provides that a loan which would otherwise qualify under paragraph 15 “shall not so qualify where the loan was incurred during the relevant period”. [ie. while the person was entitled to Income Support]. The Court of Appeal asked itself 2 questions:- Was the loan taken out to acquire an interest in the home or to pay off another loan that was taken out for that purpose and if so, was that loan incurred before 2003 (when Mrs. M. was not entitled to Income Support).

The Court found that the loan for which Mrs. M. was liable remained her husband’s loan. Therefore she had not taken it out to acquire an interest in the dwelling. They considered she had not taken it over either and that even if she had, this would be an unacceptable extension of the wording in paragraph 15(1). Further, they were not prepared to draw a distinction between “taking out” the loan and incurring the loan so that even if she had “succeeded in establishing that she had taken out the loan at the time of the ancillary relief proceedings ….. she would necessarily have incurred it whilst she was on income support and paragraph 4(2) would have disqualified her from benefit.”

This is one of the few cases on this area of law to have reached the Court of Appeal. For Mrs. M. reliance was placed on AH v Secretary of State for Work and Pensions [2010] UKUT 353 (AC) but the Court found that concerned refinancing permitted under 4(6) insofar as it does not exceed the original borrowing. In the Court’s words: “There is little even tangentially relevant authority on any of the issues that arise for our determination… “. 

The Observer noted that a debate in the Lords on the Welfare Reform Bill gave rise to the prospect of the return of the window tax.  The glorious proposals to cut the benefits of under-occupiers, so that they have to find a less commodious garrett, gives rise to the question of what constitutes a bedroom for the purposes of under-occupation. Lord Foulkes asked Lord Freud, the minister, whether “a boxroom with a skylight that did not open would be considered a bedroom”. Lord Freud replied that ”Boxrooms without opening windows normally would not count as bedrooms.”

As Lord Foulkes noted, for £20 per week, some tenants may be tempted “to board up their windows, as some owners used to do when there were window taxes”. Lord Freud, apparently not stroking a white cat at the time, replied that the Government would work to stop people taking such action. One can only presume that benefit fraud departments will be checking up on the presence of opening windows, hidden behind plasterboard and faded posters of David Cameron declaring the NHS to be safe in his hands.

Meanwhile Kenneth Clarke, a distinctly 18th Century figure himself, in the style of Gillray or perhaps Rowlandson, has tabled an amendment to the LASPO bill introducing the new crime of trespassing to a residential building with intent to live there. The amendment is here – NC26. Later the same day, the MoJ released the response to the consultation on changes to the law on squatting. The response is here [pdf].

The amendment covers trespass to a residential building, including a temporary or moveable structure, where residential is defined as “designed or adapted, before the time of entry, for use as a place to live”. The offence is not committed by anyone holding over at the end of a lease or licence, but, as David Smith noted, would potentially be committed by anyone who was invited to stay by someone holding over at the end of a lease or licence. The maximum penalty is 51 weeks, up from the current 6 months for breach of the Criminal Law Act 1977 provisions. There is also a fine of up to £5,000.

The definition of residential building should exclude the concerns that Gypsies and Travellers had about criminalising parking up in the environs of a building (car park, yard etc.) and this would not generally catch occupations by protestors or sit-ins by workers, unless part of the building was residential.

However, this remains a considerable extension of the law that had only criminalised a refusal to leave a property where it was effectively occupied already or was shortly to be.

The consultation response, which is supposed to justify this amendment, is a confused affair, right from Crispin Blunt’s foreword, where after noting that it is already an offence to continue to occupy someone’s home, he promotes the amendment in these terms “But the offence will provide greater protection in circumstances where the harm caused is the greatest – squatting in someone’s home. This behaviour is unacceptable and must be stopped”. Mr Blunt should perhaps have read the response first. In particular the parts pointing out that failure to enforce existing powers by the police was a problem reported in landlords/property owners responses, see Q.19. In addition delays in court timetables and in bailiffs’ appointments were raised by these respondents. This is, of course, a funding issue that is only going to get worse.

The Metropolitan Police, on behalf of ACPO, opposed any change to the current law, while admitting that, well, maybe a bit of training on CLA 1977 wouldn’t go amiss for officers.

The equality impact assessment accompanying the consultation response also concedes that, even after this whole exercise, the MoJ have no real idea about the scale of the problem, or how far it is a problem. They estimate between “200 to 2100 criminal squatting cases in residential property” per annum. That is a broad range, equating to ‘dunno’.

The equality impact assessment notes that, on the basis of the reports prepared for Crisis and others, the proposal would impact disproportionately on the young and the disabled. But, well, tough.

Rather touchingly, the Magistrates Association were particularly concerned about Girl Guides stranded on mountains in bad weather and sought to ensure that any proposals wouldn’t criminalise them for sheltering in a building without permission. The Mags were right to be concerned as  the MoJ acknowledge at page 37 that Girl Guides sheltering in a residential building will indeed be caught. Perhaps optimistically, the MoJ hopes that the property owner wouldn’t make a complaint in such circumstances, as the MoJ wasn’t willing to entertain a ‘reasonable excuse’ exemption. That certainly has the smack of the 18th Century, criminalising storm tossed children seeking shelter on the mountainside.

But as so often these days, Deterrence is the sole rationale. The fact that deterrence relies on enforcement, and there is nothing that suggests this would be enforced any more vigorously than s.7 CLA 1977, appears to have escaped our lawmakers. Concerns that a large proportion of squatters are homeless, that there is a shortage of housing and that there are some 700,000 properties left vacant in England are countered with:

Through the Homelessness Ministerial Working Group, the Department for Communities and Local Government, Ministry of Justice and Home Office will work together to ensure that any local enforcement against squatting is carried out in partnership with local homelessness services to mitigate against an associated increase in rough sleeping.

And

The Government wants to increase the number of empty homes that are brought back into use as a sustainable way of increasing the overall supply of housing, and to reduce the perception of neglect that can blight neighbourhoods. Reducing the number of empty homes will also help to reduce incidence of squatting. That is why we have announced £100m capital funding within the Affordable Homes programme to tackle problematic empty homes – that is properties that are likely to remain empty without extra direct financial assistance from government. This programme will deliver at least 3,300 affordable homes by March 2015, as well as engaging local communities in dealing with empty homes in their area.

So, 3,300 homes by 2015 – if that comes off. If the upper estimate of 2100 cases per year is right, that is 6300 people homeless by 2015. A shortfall of 3,000. Not, of course, counting the existing waiting millions.

Oh and there will be a housing strategy shortly.

Crisis and Squash are opposing the amendment as criminalising vulnerable homeless people. See here and here.

Maybe something more 19th Century might be appropriate to finish with. Doré, perhaps. After all, Network Rail did want squatting to railway viaduct arches criminalised in its response to the consultation.