Homeless Reduction Bill – part 2

After my rantette about clause 1 of the Homeless Reduction Bill as published for second reading, it is time to turn to the substance of the Bill in terms of new duties and so on. And, some drafting issues aside, these are broadly positive.

But first, I should clarify some remarks I made about Wales in the last post that have excited comment. This Bill extends to England and Wales – as indeed it should. However, the issue is this: the Housing (Wales) Act 2014 amended various sections of Part 7 Housing Act 1996 so that (in Wales) they read as ‘A Local Authority in England’, thereby taking Wales out of HA 1996 in favour of Housing (Wales) Act 2014 provisions. But this Bill adds new sections to HA 1996, not amended by H(W)A 2014, and not specified as ‘local authority in England’ in this Bill. Someone is going to have to amend – either in this Bill, or by amends to H(W)A 2014. Parliament or Welsh Assembly…

Now, on to the rest of the substance of the Bill.

At clause 3 is a new ‘Duty to assess every eligible applicant’s case and agree a plan’, added as a new section 189A to Housing Act 1996. Broadly, this means that for each eligible homeless applicant, regardless of priority need or intentional homelessness, the Council must make an assessment of the applicant’s case, including:

(a)the circumstances that caused the applicant to become homeless or threatened with homelessness,
(b)the housing needs of the applicant including, in particular, what accommodation would be suitable for the applicant and any persons with whom the applicant resides or might reasonably be expected to reside (“other relevant persons”), and
(c)what support would be necessary for the applicant and any other relevant persons to be able to have and retain suitable accommodation.

And then notify the applicant of this.

Having done this, the Council must try to agree with the applicant:

(a) any steps the applicant is to be required to take for the purposes of securing that the applicant and any other relevant persons have and are able to retain suitable accommodation, and
(b)the steps the authority is to take under this Part for those purposes.

The agreement must be recorded in writing. If there is no agreement, the Council must record why there was no agreement, any steps the Council ‘consider it would be reasonable to require’ the applicant to take and the steps the Council is to take.

Rather wonderfully, if perhaps hopefully (and in legislative terms, pointlessly), at (7) we find

The authority may include in a written record produced under subsection (5) or (6) any advice for the applicant that the authority consider appropriate (including any steps the authority consider it would be a good idea for the applicant to take but which the applicant should not be required to take).

The assessment (agreed or not) must be kept under review and any changes in the Council’s assessment notified to the applicant.

Section 195 – duties to those threatened with homelessness – is amended to include reference to the ‘plan’. The duty to ‘help secure’ accommodation applies to all eligible homeless, regardless of priority need or intentional homelessness. But it is also amended to end the duty to help secure accommodation (as a s.202 reviewable decision) where:

the applicant has—
(i)suitable accommodation available for occupation, and
(ii)a reasonable prospect of having suitable accommodation available for occupation for at least 6 months, or such longer period not exceeding 12 months as may be prescribed, from the date of the notice,
(b)the authority have complied with the duty under subsection (2) and the period of 56 days beginning with the day that the authority are first satisfied as mentioned in subsection (1) has ended (whether or not the applicant is still threatened with homelessness),
(c)the applicant has become homeless,
(d)the applicant has refused an offer of suitable accommodation,
(e)the applicant has become homeless intentionally from any accommodation that has been made available to the applicant as a result of the authority’s exercise of their functions under subsection (2),
(f)the applicant is no longer eligible for assistance, or
(g)the applicant has withdrawn the application mentioned in section 183(1).

This decision is subject to s.202 review. Note that 6 months accommodation being available is sufficient to end this duty. Note also that ‘becoming homeless’ triggers further duties, as does the expiry of a 56 day period if the applicant is still threatened with homelessness.

But, as a but, the Bill then at clause 4(4) also removes elements of section 195A – specifically the two year automatic return as homeless from a private sector tenancy for someone made a restricted offer under s.193(7AA) and treating them as homeless from service of a s.21. This seems a gratuitous swipe at homeless with a ‘restricted’ (by immigration status) member of their household by whom they qualified for priority need – ie, a child.

Then, via clause 5, there is a new s.189B – Initial duty owed to all eligible persons who are homeless

This applies to all applicants who are eligible and homeless, regardless of priority need and intentional homelessness.

Unless the Council can refer to another council to whom the applicant has a local connection, they must:

take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least—
(a)6 months, or
(b)such longer period not exceeding 12 months as may be prescribed.

Again, reference is to be had to the assessment plan.

This duty ends after 56 days where the Council is satisfied that the applicant has priority need and is not intentionally homeless, to be replaced by a full housing duty. For everyone else, the council must give a notice for the reasons for ending the duty, which are the same as set out for the s.195 duty above. This is a decision subject to s.202 review.

So, so far, there is a 56 day ‘threatened with homelessness’ duty to ‘help secure that accommodation does not cease to be available’, then, once homeless, a 56 day duty to help secure accommodation (but the s.188(1) duty to accommodate those in apparent priority need still applies during this stage). The obligations to the intentionally homeless under s.190(2) are also amended to cover the period to the end of the new s.189B duty.

S.193 is amended to delay the full duty to eligible, homeless, priority and not intentional until the end of the s.189B duty.

Local connection referrals are amended by a new s.199A to allow for referral to another authority at the stage of the section 189B duty (still a reviewable decision).

The comes a very significant new clause – which is a major improvement on the version in the first draft of the Bill – the ‘non-cooperation’ clause. A new s.193B ends duties under 185B or 195 (as amended) where there has been a ‘deliberate and unreasonable refusal to co-operate’ withe Council by the applicant and a notice has been given under the new s.193A. But the conditions for giving such a notice are that the applicant had ‘deliberately and unreasonably refused:

(a)to co-operate with the authority in relation to the authority’s exercise of their functions under section 189B(2) or 195(2), or
(b)to take any step—
(i)that the applicant agreed to take under subsection (4) of section 189A, or
(ii)that was recorded by the authority under subsection (6)(b) of that section.

But the council must first give a warning to the applicant, then give a notice and the notice is subject to a s.202 review. Further, the council must have regard to the particular circumstances and needs of the applicant in deciding to issue a notice.

Moreover, while service of such a notice will end the ‘help to secure accommodation duty’, where the applicant is homeless, eligible, in priority need and not intentionally homeless, the council must continue to secure that accommodation is available for them, although the main housing duty under s.193 will not apply.

This is a huge improvement over the first draft of the Bill, providing suitable safety checks on what was close to being an open invitation to councils to find ‘non-cooperation’ (and we have seen councils argue that Yes meant No right up to hearing of a s.204 appeal).

The other significant point to note about s.193B is that the 12 month tenancy condition for discharge of duty by a private sector tenancy is amended to a 6 month tenancy. This echoes the Welsh legislation, but is a retrograde step. (I’m not wholly sure all the necessary amends have been carried out, but haven’t had time to check)

There are various other bits and pieces – interestingly including a general duty on public authorities to refer the homeless or threatened with homeless to the housing authority, with that person’s permission, as a new s.213B to HA 1996.

Overall, taken as a whole, the Bill is a positive step and my view is that second reading should be strongly supported. But there are some serious issues and drafting points that need to be addressed in committee and subsequent stages.

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 , .

34 Comments

  1. I feel a bit like ’emperors new clothes’ …. am I understanding this correctly? – roughly speaking the new ‘duties’ seem to be to provide a bit more detailed (written) advice and assistance (ie assessment/ plan) ? I assume ‘help’ someone secure accommodation is vague enough to not place any obligation on a council to actually provide accommodation?

    So while it *could* encourage councils to do things like, liaise with HB to make sure rent arrears are paid, pay deposits to secure accommodation, speak directly to LL to get them to withdraw notice, refer someone to supported accommodation (etc) – all things they could have already been doing anyway as part of prevention – does it feel likely to you that they will do this (particularly in London?) The northern council where I am does do some of that already (but not as much as it could) but I’m not sure how much use it will be to clients in most of the country?

    • It puts prevention work that some councils have been doing on a statutory footing – as an enforceable duty. The initial draft of the bill was clearer on what could amount to ‘help to secure’ – and it does include potentially providing accommodation.

  2. Here is the abridged version, All those threatened with homelessness, will be required to sign a claimant commitment, with the LA, to help prevent their own homelessness or take another housing option. Those that break the rules of their commitment will be sanctioned by the loss of the full homelessness rehousing duty and required to live in the private sector. Those that try their hardest will be placed in temporary accommodation.

  3. I am also concerned that this is a way of ensuring those affected by the Benefit Cap, who fail to “cooperate”, including accepting a PRS tenancy prior to loss of their current accommodation, will then be intentionally homeless.

    Yes s202 still applies, but the case law will not develop quickly enough, so local authorities will get 12 months to clear their books, with no come back for those who have already gone. That is assuming the case law is positive….

  4. Pingback: What happens when a homelessness reduction Bill meets a homelessness increase policy? | Red Brick

  5. Am I missing something? This sounds terrible to me. Why not just stop counting?

    Does anyone really think that local authorities will lift their game if this becomes an Act?

    “Plans” to do what? What you are told?

    This masks the problems by making it easier for local authorities to say people are not homeless by ‘preventing’, discharging or not accepting a duty at all. This ‘prevents’ nothing, except an honest conversation about why people become homeless, how we stop it from happening and how we handle people when it does.

    • I disagree. Will the Bill do anything to address the cause and rise in homelessness? Heavens no – that is something for government (and huge amounts of money). Will the Bill make a practical difference in a) proper assistance for those who are not in priority need, and potentially b) preventing or avoiding homelessness for homeless whether priority need or not – yes, it might, and there is an enforceable duty there.

      You are simply wrong to say it makes it easier for LAs not to accept a duty – it actually broadens the range of homeless for whom some form of duty must be accepted.

      You are also wrong on the nature of the agreements – read the relevant clauses.

      The days of homelessness being a simple route to Part 6 accommodation, at least in London and many other areas, are gone. There is little in this Bill that affects the ways in which a duty can be discharged to those in priority need without accommodation having been secured.

      Just wait till you see the forthcoming London Councils briefing in response to the Bill!

  6. I am reading but I am not changing my mind.

    All I can see is that the local authorities will a) have to write a narrative account, b) have to update their information sheets and lists of cheap landlords, and c) maybe make a phone call to their landlord. Clearly they are not putting together any new “services”, which appears to be the only new meaningful word, except for the movement from “shall” to “must”, in the existing section 179.

    How will this make the existing duty held in section 179 any more enforceable?

    If I am “wrong about the nature of the agreements”, and a deviation from an agreement (plan) being a ground to find someone IH, why have you confirmed that in my post above? I know how much trouble people get themselves into when they refuse offers of TA, and I am rightly concerned that this will increase those pitfalls.

    I would also comment that this does do something about the true causes of homelessness and their solutions; it gives the government a pass on having to address them for another decade.

    • Then you are are not reading. And my earlier reply was on the specific issue of refusal of suitable accommodation, not ‘deviation from a plan’, which is not a basis for IH.

      And as for the your final comment, no, it doesn’t. You, however, would apparently rather see homeless people who are not priority continue to be denied any form of assistance, pending the revolution.

  7. I see. My apologies. So the refusal of a prevention placement prior to a homelessness application could, subject to review, lead to an IH decision (which is a new ground for finding someone IH, right?), whereas being uncooperative will mean they no longer need to give out information sheets to non-priority cases?

  8. I don’t think concerted effort from government to increase the supply of accommodation for low income households is revolutionary. Unless this bill will change the meaning of “revolutionary” to providing a basic standard of living for its citizens.

    I thought I was cynical.

    • It is a private members bill, aimed at a small improvement in the statutory obligations on assistance for the homeless.

      If you seriously think a private members bill can increase the supply of affordable accommodation, you are sadly deluded. If you think that any incremental improvement in statutory obligations to the homeless should be dismissed out of hand because it doesn’t solve homelessness, you are deluded. I am astonished that you are willing to see people refused any form of assistance to avoid homelessness simply on the basis that the change doesn’t solve homelessness. It is hardly as if one change precludes the other, or support for one precludes support for the other. I do hope you enjoy your sanctimony.

  9. Romin Sutherland
    27/10/2016 at 5:31 pm

    S202 aside, will it make a refusal of a prevention placement grounds for an IH decision in the same way as an offer of TA?

    Giles Peaker
    27/10/2016 at 7:23 pm

    Yes.

  10. I am entirely in favour of any positive impact on the availability of advice and support for homeless people. I simply do not believe that this bill will achieve that. Any positive effect will be local, negligible and unmeasurable in any case.

    It makes a mockery of any genuine process of policy making to introduce legislation that directly conflicts with existing government policy. It solves nothing and risks accelerating the contrary policy by sheer force of acceptance.

    I think you think that I am naive, but I would advocate abandoning social housing waiting lists entirely. TA is the most expensive bottom end of the PRS barring crime anyway. I just want our legislature to be honest about it.

    This bill will probably pass. Not because it will actually help the people you refer to, but because it will allow the government to claim that they are doing something to address homelessness whilst smuggling in a whole new language of plans, agreements and cooperation. Why do you think you got this far? Compassion?

    You are taking an entirely formal, old school approach to this. In a world of Brexit and UKIP, words and rhetoric are everything. It doesn’t really matter who’s right, it just matters who wins.

    And you haven’t said whether it does introduce a new ground for an IH decision, as you’ve implied above.

    • I said it did.

      Though it is ‘in effect’ rather than IH. It is end of duty on refusal of suitable offer. A refusal of suitable accommodation proposed at ‘help to secure’ stage, as with refusal of suitable TA or refusal of suitable offer in discharge of duty. As with those, reviewable.

    • At 11:11 you said “no still wrong” so just wanted to clarify that you were referring to my comments on the information sheets.

  11. This is a bit more positive than the Part 1 stuff I was reading the other day. It’s still not exactly lighting a fire under local authorities but it’s a step in the right direction. I think there needs to be some shoring up of the language used though.

    Hopefully, the commitment to setting out what accommodation would be suitable for the applicant will take into consideration wider needs so that we don’t have the spectre of children being located hours from school, sick and disabled people being allocated properties hours from care and hospitals, etc. This appears to be the case from what you’re saying which is great.

    Combined with the warnings and notice required to show that someone is deliberately and unreasonably refusing to co-operate should help to prevent the whole non-cooperation argument from developing. Providing it is implemented properly, I don’t see LAs being able to use this as a tool for declaring intentionally homeless unless someone really is going out of their way to be obstructive.

    If done right, there’s no reason why this can’t be seen as a really positive step in the right direction.

    • I think I may have confused this issue. I take Giles to be saying that the cooperation requirement only applies to the new beefed up s179, and will not itself lead to IH decisions.

    • The ‘non-cooperation’ clause can lead to an end of duty (prevention or help to secure), but where homeless, eligible and in priority need, there is a continuing housing duty in any event (though not full duty if non-cooperation notice served and upheld on review).

      There is specifically not a new ‘Intentional Homelessness’ ground. There was in the first draft – I and many others argued strongly against it at the select committee.

    • There is no change to current position on locality as a matter for suitability. There was in the original draft, and councils have been lobbying hard, but no change to locality in the bill as currently drafted.

      I think the threshold and safety checks on ‘non-cooperation’ are hopefully enough. They are considerably higher than that in the Welsh legislation.

    • Thanks Giles.

      My major concern was that what constitutes suitability would get relaxed to give the local authorities more scope to discharge their duty with what would otherwise be considered unsuitable accommodation. If this isn’t an issue and we get all the other checks and written agreements then this to me has got to be seen as a win.

  12. The Bill passed Second reading today and is going to committee stage. Govt said additional costs to councils will be funded (but a) that is admin costs and b of course, the devil will in the detail).

    • The first year of the Welsh model saw a 50% rise in homeless applications dealt with – precisely because the prevention duty extends to non-priorty cases. But it also saw a 50% drop in the number of households going on to full duty.

      That said, I don’t think anyone is under any illusion that the Bill does anything to tackle the causes of homelessness – that is far beyond the capacity of a private members bill anyway.

  13. Will the enacted of this legislation coincide with additional resources for local authorities to tackle homelessness? I doubt it.

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