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.