Monday’s big news was the Govt announcement that it will support the Homelessness Reduction Bill – Bob Blackman MP’s private members bill, due for second reading on 28 October. But exactly what is it that the Govt is supporting?
The first draft of the Bill, largely based on draft amendments to Housing Act 1996 produced by an independent panel for Crisis (disclosure – I was on that panel), was then considered by the Commons and Local Government Select Committee, which then produced a report on the draft (disclosure again, I gave evidence to the Select Committee and written submissions on behalf of HLPA). As the report identifies, that first draft had some issues. In particular, it removed ‘locality’ as a condition for suitability and added a new definition of intentional homelessness for ‘failure to cooperate’ in preventing homelessness. There were also drafting issues around a clause intending to stop councils refusing to take a homeless application until possession order and notice of eviction, and around a new ‘no safe place to stay’ 56 day accommodation duty for those at risk of harm.
But since that stage, there have been some very significant changes. I am guessing that these are in large part due to lobbying by the Local Government Association and also due to the drafting of the current version having been carried out by DCLG. We have been a bit critical of DCLG drafting in the past. I’m afraid that this occasion will not be the exception.
So, what do we have in the Bill? This is the first of a couple of posts on the contents of the Homelessness Reduction Bill as published before second reading, looking at the draft and the effects of it. This is the most significant potential legislation on homelessness since 1996, and it needs close attention.
Clause 1 adds a new section 3A to s.175 HA 1996 on the meaning of “homeless” and “threatened with homelessness”. In place of the first draft’s simple statement that expiry of a s.21 notice meant that the tenant was to be treated as homeless (a formulation that did indeed need amending to avoid inadvertent consequences), there is a substantial series of sub-clauses which make this thoroughly conditional. For example new (3A) provides that a s.21 or s.8 notice means that the applicant is to be treated as not having the accommodation after expiry of the notice where:
(b) it is reasonable to suppose that the landlord intends to apply for an
order for possession of the accommodation under section 7 or 21 of that
Act (as the case may be), and
(c) no local housing authority in England asks, in accordance with
subsection (3D) or (3E), the recipient, and any other persons with
whom the recipient resides or might reasonably be expected to reside
(“other relevant persons”), to occupy the accommodation after the
Pausing for drafting problem number 1 – it is reasonable for whom to suppose? The local authority? The applicant? What would amount to a reasonable supposition (given that notice has been served!)?
(Actually, drafting problem number 1 in terms of scale is at the end of the Bill, where it is stated that it extends to England and Wales. I presumed that this was an error, as it really can’t extend to Wales, which introduce its own complete homeless provision in the Housing (Wales) Act 2014 – on which the first draft of this Bill was indeed based. However, I have heard that the DCLG do indeed think this Bill should extend to Wales. Now that is going to be entertaining. A constitutional dust up awaits.)
Then we come to subsections (3D) and (3E).
(3D) provides in respect of section 8 notices that the council can ask the tenants to remain if the council think there is ‘a reasonable prospect’ of possession proceedings being discontinued by the landlord, or the tenant successfully defending the proceedings. So, basically the council can tell tenants to stay and take the financial risk of defending possession proceedings, based upon the Council’s view that they have ‘reasonable prospects’ of defending. No suggestion, of course, the council would assist in that defence (and no provision for the tenant to dispute the council’s view.)
(3E) provides that the council can ask the applicant to stay after expiry of a s.21 notice where it is reasonable and the council have taken ‘reasonable steps’ to ‘try to persuade’ the landlord to ‘withdraw the notice’ or ‘delay applying for an order for possession’.
Oh where to start? I suppose with the idea that a s.21 notice can be ‘withdrawn’. A common law notice to quit by the landlord cannot be withdrawn, but waiver of the notice creates a new tenancy. The position on a statutory notice is unclear, but there is no statutory basis for a ‘withdrawal’.
And then, there is no requirement that the council has actually succeeded in persuading the landlord to withdraw notice or delay proceedings. All that is required is that the council has taken reasonable steps to try to do so.
Finally, let us consider time scales here. Unless the tenant (or applicant) has approached the council before expiry of the s.21 or indeed s.8 notice, all of this – at (3A), (3D) or (3E) will be taking place after expiry of the notice. So (3C), which provides that the applicant will not be treated as having accommodation available after the expiry of the notice is likely to be otiose in most cases, at least while the council ‘try to’ persuade the landlord, or consider prospective defences available to the tenant.
(3F) provides for factors the council must take into account in considering whether the tenant (or applicant) can be reasonably expected to remain after expiry of the s.21 or s.8 notice. These are ‘the likely consequences (financial or otherwise) of the tenant/applicant ceasing to have the accommodation for a) applicant, b) other relevant person or c) landlord, and then the same exercise for the tenant continuing to occupy after expiry of the notice.
The immediate suspicion is that this balancing act will be carried out in a familiar way, with the council balancing on the one side tenant having to pay the cost of possession proceedings and on the other side, the tenant not being (treated as) homeless yet, and concluding it is reasonable for the tenant to stay in occupation as long as possible.
(And oddly, the possibility of proceedings being discontinued or defended, or the likelihood of the council persuading the landlord to ‘withdraw’ notice or delay possession are featured again as factors to be considered).
You will have noticed the frequent use of ‘reasonably’. This is in effect the only safeguard against misuse of these provisions by councils in the wording. Given the pressures on many councils, one would expect them to take these clauses as far as they possibly can (unless threatened with judicial review, and there would certainly be judicial reviews) relying on having ‘taken reasonable steps to try’ to persuade landlords and assuring themselves that it is ‘reasonable’ in the circumstances to tell the tenants to remain. Judicial review would be the only remedy open to tenant/applicants – assuming they can find someone to act for them – and it is clear whoever drafted this in the DCLG did not have Wednesbury irrationality in mind as the test of ‘reasonable’, yet that is what it would be.
The Bill actually makes the position worse than the DCLG’s own statutory code of guidance, offering a statutory get out from any expectation that someone should be considered at risk of homelessness from expiry of a s.21 notice. The strong likelihood is that most applicant would be ‘reasonably’ expected to remain until at least possession proceedings have been issued, and quite possibly a possession order.
And one expects that not remaining when the council have told the tenant/applicant that it is reasonable to remain would of course be classed as intentional homelessness, whether one wished to be lumbered with possession proceedings and costs or not.
Part 2 will look at the substance of the new duties as drafted. Following when I get a chance…