Gatekeeping special

This has been quite a week for issues about Local Authorities gatekeeping homeless applications coming to the fore. This post addresses practices and policies of three councils. Eastbourne BC, LB Haringey and Bournemouth BC.

Eastbourne BC

Eastbourne’s conduct of a homeless application was the subject of this Local Government Ombudsman decision. Quite unusually, the Ombudsman made a specific finding that

The list of failures I have identified indicate to me the Council did aggressively ‘gatekeep’ Mr X’s homelessness application with a view to avoid providing him with interim accommodation.

Mr X had previously approached Eastbourne in October 2013 about being threatened with homelessness by his landlord. At that point, Eastbourne were provided with information showing that

  • He had a personality disorder, mania, anxiety and depression
  • He had been referred to a psychiatrist
  • He was on medication (doloxatine 60mg and zopliclone 15mg)
  • He had angina and chronic obstructive airways disease (COPD) and took salbutomol.
  • He was in receipt of disability living allowance (high rate care).

That homelessness was avoided, but Mr X approached Eastbourne again in June 2014 after being served a s.21 notice. He was, unsurprisingly, told to stay in the property until a possession order was made and then approach Eastbourne. In July 2014, Mr X was unlawfully evicted. When he approached Eastbourne, he was told, with no reference to the earlier information, that he wasn’t in priority need. No s.184 decision was made and no temporary accommodation provided, though Mr X was sleeping rough. On two further attendances at the council’s office, this view that Mr X had given no reason to believe he was in priority need was repeated –

  • ‘He was unable to produce any evidence to support his health claims…no obvious PN’ (Priority need).

Further representations from a housing charity 3 days later, including detailed statements about Mr X’s mental health issues, were met with a response that:

  • Indicated without medical evidence to support his medical conditions the charity’s letter was all ‘hearsay’.
  • That Mr X needs to come in and sign a consent form for the Council to get medical information from his doctor and ‘until he does he will not be placed into B&B as only letter from [charity] to say he has medical problems but no proof has been supplied to give him a priority need. Which was requested at begin of his application and what he has supplied does not justify placement into B&B’.

It was not until a threat of judicial review that Eastbourne accepted the homeless application and found temporary accommodation for Mr X. Eastbourne claimed that this was after getting further evidence on Mr X’s health, but the LGO curtly observes “I have seen no evidence that new information was available to the Council on 29 or 30 July than was available when Officer B made the decision Mr X was not in priority need.”

The LGO’s findings are strong.

Under ‘Duty to make enquiries’, they include:

  1. Having found the Council had (or should) have accepted a homeless application on 25 June 2014, the Council then had a duty to make enquiries to see if it owed Mr X any duty under Part VII of the 1996 Act. (s.184 of Housing Act 1996 & The Code, Overview, para.14).
  2. Housing authorities are obliged to begin enquiries as soon as they have reason to believe an applicant may be homeless or threatened with homelessness. (The Code 6.16)
  3. Once a Council is satisfied that an applicant is not homeless, eligible or in priority need it should give an applicant a decision in writing straight away (LGO Focus Report). Decision letters must inform applicants of their right to request a review. (The Code 6.23)
  4. In some situations a Council will have enough information to make a decision at the first appointment and provide a written decision letter immediately. Officer A did not make a decision on 25 June.
  5. Officer A did not make enquiries of the landlord or Mr X’s medical advisers. Instead the Officer put the onus on Mr X to provide evidence. This is fault. The obligation to make enquiries and satisfy itself whether a duty is owed rests with the Council and it is not for applicants to ‘prove their case’. (The Code 6.15)

Under ‘Priority Need’, they include (in view of the 2013 evidence on file with the council):

  1. This was more than enough evidence to meet the low test of a ‘reason to believe’ Mr X ‘may’ have a priority need on 25 June 2014. The Council had then to carry out enquiries to establish whether or not he had a priority need on 25 June 2014 [10.3 Code]. It failed to do so until August 2014.
  1. I am very concerned Officers noted Mr X was not adequately dressed and did not appear to know where his medication was, but decided he was fine to sleep on the streets. Mr X’s physical presentation and confusion were further indications that his mental health condition may not have been as stable as assumed and that he might require care support.

And under ‘Continuing to occupy during possession proceedings’:

  1. Mr X’s s.21 notice to quit was due to expire on 1 July 2014.
  2. The Code says that where a tenant has a valid notice to quit, or a notice the landlord intends to recover possession, housing authorities should consider the scope for preventing homelessness by:
    • consulting the landlord at an early stage to explore the possibility of the tenant being allowed to remain for a period while alternative accommodation is found and, if the landlord is not persuaded to agree,
    • considering whether it would be reasonable for the applicant to continue to occupy the accommodation once the valid notice has expired. [8.30]
  3. Mr X had no defence to possession proceedings because the landlord was entitled to regain possession to sell the property. In this situation the Code states that the Secretary of State considers it is unlikely to be reasonable for a tenant to occupy the property beyond the date in the s.21 notice (1 July 2014). To do so would only incur court costs and place an unnecessary burden on the courts.

This last is a vexed topic, of course. The Housing Minister has apparently recently written to councils to tell them to have regard to the Code of Guidance on s.21 and ‘reasonable to remain’. I’m not holding my breath.

Despite all of the this, the council complaints process failed to identify any problem, and even in its response to the LGO, Eastbourne “stated it had accepted a full housing duty on ‘pragmatic’ grounds, indicating it remained of the view Mr X was not really eligible for assistance”.

Eastbourne to pay £2300 to Mr X for loss of possessions and distress. Refresher training for staff within 3 months on homeless legislation and complaints handling.

 

LB Haringey

Entirely by accident, I caught part of an episode of ‘Can’t pay, we’ll take it away’ (available to watch here). A woman and her three children (20, 14 and 9) were being evicted from her late father’s house, apparently by the father’s girlfriend having obtained a possession order and wanting to sell the property. Leaving aside that the High Court writ that the HCEOs were enforcing was quite likely obtained through using form N293A and thus an abuse of process, what was startling was the response of Haringey homeless, when a call was made to the out of hours line. This is a transcript of the calls, after the Council was told that eviction by the HCEOs was underway and the locks changed.  (CO – council officer, O – occupier, OF – occupier’s friend, HCEO – High Court bailiff)

CO to O: Are you working

O: I’m working yeah

CO: Do you have any money to book yourself into a hotel for today?

O: No, I work, the money is part time, I haven’t got any money in the bank like that

CO: Because I can help the children, the 14 and the 9, but I can’t help the 20 year old and I can’t help you.

OF – takes phone: So what’s this about?

CO: Because she works and she has access to finance, I can’t find anything for her. What she’ll have to do is to go to Apex Housing tomorrow morning, the Local Housing Office, and they’ll have to make the judgment. But for the kids, the 14 and the 9 year old I can help, I can pass the information on to a social worker

O: And now they want to take my kids

OF: This is not a social worker problem. Children are homeless, not in danger.

CO: Technically she is still in the house so she is not homeless. The minute she leaves the house she will be homeless.

HECO takes phone – These people have been evicted. You said these people aren’t homeless, they are. We have a high court writ.

CO: What I said is, the minute they leave the house they’re homeless

HCEO to O – would you please leave the house. She does.

HCEO to CO. The only reason they were in the house is because the phone needs to be plugged in to the charger here, it is her mobile phone. They’ve now left the property.

CO: Can I speak to the client please.

HCEO: No because you’ve said she’s got to be outside

CO: Okay, I didn’t say that, I said she’ll be homeless the minute she leaves the house. I’ll call her back in the next five minutes.

Officer calls back later.

CO: You need to go to the police station with the document and I’m going to call you there and speak to a police officer to verify the document.

O: OK, I’m going to Tottenham police station

CO: How long will it take you to get there

O: say 10 minutes

CO: In 10 minutes I’ll call you.

One hour later, leaving police station… Occupier says council say they don’t understand the paperwork (High Court writ).

7.30 pm. occupier’s friend calls the council out of hours line again. Switchboard denies any knowledge, refuses to transfer call to homeless and says homeless will have to call back.

9.15 Emergency call back (different officer)

CO: So, she’s got nowhere to stay

OF: Yes

CO: At all?

OF: She’s on the streets right now with the kids

CO: You are her friend?

OF: Yes I am

CO: So why can’t you accommodate her tonight and she can go to Apex House in the morning?

OF: It is not my duty to house her tonight. It is your duty, not mine.

CO: OK but you are a friend.

OF: Yes I’m a friend. I’ve got four children. So my house is full.

CO: Your house is full, you’ve got four kids, OK. Has she got any other friends or relatives she can stay with?

OF: No she hasn’t.

CO: OK, the reason why we’re sorting this information out is because at the moment we usually get information from a bed and breakfast and a lot of them are fully booked but we are trying to get some more information. Sorry just one second please… There is a bed and breakfast in Ealing. That’s the only one we’ve got.

OF: How are we going to get to Ealing this night? And the children have to be in school in the morning. (Ealing is an hour away, at least)

CO: That’s all we’ve got. If you are so concerned, you are her friend.

OF: No don’t be going on about the friend. Don’t put no guilt on me. Don’t put what you are meant to do on me and play games. It is your duty to house her.

CO: This is the last choice we’ve got.

OF: Don’t you dare try to blackmail me by saying as a friend I am meant to house her.

CO: If you change your mind you can call us back, we are here.

OF: There will be no going to Ealing with you providing the transportation

CO: I can give you the phone number (for social worker)

OF: I don’t need no social worker, we cannot get to Ealing this night without some support.

CO: Thank you, Bye bye now.

HCEOs then arrange for a hotel room, at 11 pm, and it appears, paid for the night!

“Haringey Council did not respond when they were asked to comment on matters in this programme”.

After I ranted on twitter about this blatant breach of duty and attempt at gatekeeping by Hargingey, the leader of Haringey Council replied:

We’ll see… The obvious lesson is ‘don’t do something so astonishingly unlawful ever again’.

Of course this also highlights the problems caused to homeless units by HCEO ‘without notice’ evictions. I understand that the ‘without notice’ procedure is currently under review.

 

Bournemouth BC

Oh Bournemouth. I first started looking at their policies after this news report caught my eye. Then found the policy here (hidden behind a link to a 2013 ‘reconnections policy’. The actual Reconnections Policy 2015 is here.)

I tweeted at Bournemouth, asking about the policy, pointing out it was a bit, well, unlawful. There was no direct response, but I think they subtweeted me…

So, what is wrong with the policy? This is a policy applied specifically to rough sleepers in the Bournemouth area. The aim is clear from the opening paragraphs:

The Reconnections Protocol has been developed to improve access to housing related support services, particularly for those with a local connection to Bournemouth who need those services.

The protocol also aims to actively support those without a local connection who are rough sleeping or are at risk of rough sleeping, to return in a planned way to an area where they have accommodation, support networks or some other connection. The protocol hopes to avoid people travelling between areas to rough sleep and therefore avoid perpetuating street lifestyles.

What this actually means is:

The protocol aims to reduce the number of people sleeping rough in Bournemouth by preventing migration of rough sleepers between areas and minimising people coming to Bournemouth seeking homeless services.

This Protocol sets out the procedures to be followed when establishing an individual‟s local connection to Bournemouth as a pre-requisite to accessing supported housing. It sets out how individuals will be helped to be reconnected to an area where they have support networks.

Let us pause there for a moment to remind ourselves that there is no ‘local connection’ condition for a council’s obligations under Part VII Housing Act 1996 to be engaged. none at all. Nor is there any ‘local connection’ criteria for assistance under Care Act 2014 if engaged.

The closest Bournemouth get to acknowledging this is:

The Protocol does not seek to override any legal requirements or obligations which are placed on any agencies involved in the implementation. In particular, where a local housing authority has accepted a legal duty to re-house a rough sleeper or single homeless person under Part VII of the Housing Act 1996, as amended by the Homelessness Act 2002, the Reconnections Protocol will not be applied.

Well no, that is just wrong. It is not a question of whether the Council has accepted a duty to re-house. The duties following on from s.183 Housing Act 1996 apply and pre-date ‘accepting’ a duty to re-house. But then, the policy goes on to define ‘vulnerability’ wrongly. Despite dating from July 2015 (ie, post-dating Hotak/Johnson/Kanu) appendix 3 to the policy defines vulnerability as follows:

It is a matter of judgement whether the applicant‟s circumstances make them vulnerable. When determining whether an applicant in any of the categories set out above is vulnerable, the local authority should consider whether, when homeless, the applicant would be less able to fend for him/herself than an ordinary person if homeless, so that he or she would suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects.

This is simply incompetent, coming two months after the Supreme Court rejected that entire definition.

So, the upshot is that Bournemouth will simply send rough sleepers back to where they came from unless they can establish a local connection – meaning

The person must have lived in Bournemouth for at least 6 months out of the previous 12 months, or 3 years out of the previous 5 years. Residence may include for example a tenancy or other settled accommodation supported by evidence.

Apart from Bournemouth’s Womens Refuge, which remains open access (and congratulations to the Refuge for retaining their entirely correct position) this is what happens:

All referrals into housing related support (HRS) accommodation services, aside from the Women‟s Refuge, must go via the SP Hub.
The SP Hub will require evidence of an applicant‟s local connection to Bournemouth, along with other information to determine whether they are eligible for HRS.
The Strategic Housing Options team determines the definition of local connection and therefore determines eligibility to services on this basis.

There may (emphasis on the may) be exceptions to the local connection rules by reason of fleeing DV, vulnerability if returned or refugees/asylum seekers, but then these people’s council of origin would have to fund accommodation in Bournemouth (apart, one presumes, for refugees).

So, if the homeless person has no immediately apparent local connection:

Where a client is assessed as having no local connection to Bournemouth and their circumstances have been assessed as not meeting the exceptions to the local connection criteria, the client should be referred to the BPRST. The BPRST will also gain direct referrals through their contact with rough sleepers on the streets.
Upon receipt of the referral the BPRST will commence an assessment of the client‟s reconnection needs immediately. As part of that, the BPRST will check whether the exceptions to the policy apply to that individual.

And then

Where it can be proven that the service user can be safety reconnected back to their area of locality, BPRST are to reconnect the client back to their home address as soon as is possible.

And if Bournemouth’s offer to pay for the homeless person to go somewhere else is refused?

Where a service user refuses to be reconnected via BPRST, that service user will be denied access to accommodation or homeless services in Bournemouth. BPRST will continue to work assertively to engage with the service user and reconnect them to their area of locality.
Those people who have disengaged with the reconnection process, or who have returned to the town after being relocated will be viewed as disengaging from the reconnection process and will continue to be excluded from all services except the BPRST.

So, a homeless person who has approached Bournemouth, but cannot show a local connection is sent straight to the ‘reconnection’ service. if they can’t show an exceptional status (none of which relate to Housing Act 1996 criteria), the reconnection service will organise sending them away. If the homeless person doesn’t accept, or does, then returns, Bournemouth, wholly unlawfully, exclude that person from all housing related services except the ‘reconnection’ service.

Bournemouth claim that this is in line with the ‘No Second Night Out’ ethos. NSNO do indeed arrange and encourage reconnection. But there is no exclusion from housing related services involved. I’ve asked NSNO what they think about Bournemouth’s claim to be in line with their values and will update with any response.

Significantly, despite the council being engaged with these people as homeless, and being approached by people as homeless,Bournemouth don’t accept that any s.183 duty is triggered and no s.184 enquiries are made. Indeed, the policy states as an afterthought (at page 11 of 11)

Rough sleepers are, of course, entitled to and may wish to make a homelessness application.

But everything in the policy up to that point is about avoiding any possible obligation – unlawfully so – and at no stage in the process set out in the policy is the Council required to consider whether s.183 duties are engaged in respect of the homeless person that they are actually interviewing about their homelessness.

This is a version of the ‘housing options’ gatekeeping. As the LGO noted in the Eastbourne decision:

Councils cannot use homeless prevention measures to defer an application for example by insisting on interviewing people and advising them on their housing options before processing an application. (R (Aweys & Others) –v- Birmingham City Council [2007]). Blocking applications is often referred to as ‘gatekeeping’.

Imposing a ‘local connection’ criteria on access to housing support is also unlawful gatekeeping (and seems to be rife on the south coast).

I have been told that Bournemouth’s ‘reconnection policy’ is now under review. Let us hope it is a quick and thorough review…

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 +.
Posted in Homeless, Housing law - All and tagged .

7 Comments

  1. Giles

    I will dig the papers out of the archives for the following re Bournemouth and many other south coast councils re “reconnection policies” and rough sleepers.

    Back in 2004 I became aware that Bournemouth et al – and from memory it was they who started this – had adopted ‘reconnection’ policies to rough sleepers with regards to the Supporting People programme (SP) and I contacted the ODPM as was (now CLG) to say is this lawful.

    While SP was not a statutory requirement, Bournemouth and other councils on the south coast were informing hostels and night shelters, with whom they had legally binding SP contracts for support, that if they took in rough sleepers who did not have a local connection then they would not get paid under the SP contract for supporting them for more than 1 – 3 nights (the time varied from LA to LA)

    The ODPM as was said this was fine as it was up to each LA and indeed they actually came up with a ‘reconnections’ policy for SP purposes for rough sleepers (which I have somewhere in paper archives)

    So Bournemouth while I fully accept and agree with your points above re Part VII, Bournemouth have been allowed to do precisely the same issue with regards to rough sleepers and ‘reconnection’ for well over a decade and with the full blessing of the ODPM now CLG!!

  2. Thanks for this, very interesting and quite concerning clearly.

    In the Bournemouth care, you reference the Acre Act 2014 – I assume that’s a typo and is in fact a reference to the Care Act 2014?

  3. On s21 and remaining in the property I have mixed views on this (and treat it on a case-by-case basis of course). However there is often merit in advising a client to stay put after expiry of a valid s21 notice, not least so that landlords don’t get into the habit of believing that expiry of the notice is a valid reason to take the law into their own hands and at worst, evict the tenant and at best (?) start harassing the tenant to leave…a common experience with some of my clients….so my usual tactic is to warn the client that they don’t have to leave, that only a court order can order them to do so with an enforcement by bailiffs, and refer them to the Council anyway in the hope that they are able to bid for a property before the need for any court action.

  4. I would agree with Chris L on this matter as the fact that the tenant is legally entitled to remain beyond the expiry of the notice is something that all Local Authorities, having a statutory obligation to provide advice, is required to make the tenant aware of. I have worked in many LAs and often applicants or landlords will say allege that the tenant is being told to not to leave. This is not something I would ever do nor recommend LAs do as the choice to leave or remain is entirely that of the tenant however if the LA fails to make the tenant aware that they have a right to remain past the expiry of the notice then they are failing to provide appropriate and correct advice. Additionally, if we all start telling tenants they must leave on the expiry of the notice then landlords will have no need to follow the correct legal process to obtain possession of their property.

  5. ive never seen a blantant disregard for a HOMELESS family by Haringey and I have never heard such rubbish the member of staff imparted to the poor woman. They refused to put her in emergency accommodation and refused to assist her at all because she was worker and then tried to badger her friend into taking responsibiity. I had heard Haringey were guilty of gatekeeping but to hear and see it was astonishing. Completely ignored homelessness legislation and made up their own. I was very disgusted

  6. Just come across this and thought I’d see whether Bournemouth have amended their policy. They seem to have done: their reconnections policy is now dated June 2016. Unfortunately, the offending paragraphs remain, Pereira test and all.

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