Reducing the Homelessness Reduction Bill. Part 1

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
relevant day.

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…

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 .

19 Comments

  1. That homelessness regulations need updating I dont deny but what troubles me with this and the extension of the logic of the code of guidance on ‘Reasonable to remain’ after notice is the move towards making expiry of a notice the thing that triggers the homelessness duty, meaning all a landlord has to do is serve a notice and then dump the rest onto the council.

    Without those added caveats that would be the position. There is at least some practicality to the issues in Croydon v. Jarvis, in that the council can have regard to its own position in terms of resources.

    In rural areas many councils do take applications on expiry of notice but in London and other cities, where 500 people a week through the doors are the norm it would be absolute madness, given that most of them come brandishing a section 21. albeit mostly invalid.

    • As currently drafted, this clause does not make expiry of a section 21 the trigger, unless the council agrees it is. But remember, any move towards triggering the duty at expiry goes hand in hand with the new prevention duty and extended 56 day ‘at risk’ period. So the council has that extended time to try to prevent homelessness or otherwise help to secure accommodation.

  2. If councils are asking tenants to stay put, can the rent payments/lost income issues be transferred onto the council? The council should give the tenant a formal notice to stay and so should take on the responsibility for loss of rent or damage from the period the S21 notice ends until the bailiffs come knocking.

    This should be added to the act.

    Comments?

  3. But Giles it still means that the council have to step in if the landlord genuinely intends to evict (as per the current code) so the financial burden falls on the council and the landlord doesn’t have to get a possession order. So landlords serves notice, council call landlord and asks if they seriously intend to evict, landlord says yes, council obliged to deal with it. Cost to landlord nil, all costs pushed over to council, where it is quite common these days for councils to clear arrears or top up shortfalls with DHP.

    Expiry of notice may not be trigger but stated intention to follow up with possession is all that is needed to satisfy, thus abrogating the landlord of the responsibility for obtaining possession, rolling the costs downhill to the door of the HPU

  4. This is pretty typical for this debate the landlords blame the Authority and vice versa in an argument about budgets.The Bill is supposed to help the homeless. In practical terms, is it better for the tenant to leave their (err in their eyes) current home for a bed and breakfast …….or to wait hoping they will be housed before the bailiff arrives?

    Just asking.

  5. Hmmm… this doesn’t make for particularly reassuring reading. I realise it’s still a draft but, as it is, it creates way more questions than answers and flags up so many potential problems. It’s very clearly drafted from a local government perspective, trying to give them as much discretion as possible. The vague language really isn’t helpful to anyone else.

    I can imagine there are Homelessness Officers up and down the country cringing at this, thinking about how they go about applying what is “reasonable” to all their decisions.

    As you rightly highlight, there’s a very real possibility of tenants being classed as intentionally homeless because the local authority think it’s reasonable for the tenant to stay when the tenant feels it isn’t.

    There’s also the potential that all this will do is mean more valid s.21 notices going all the way to eviction stage because the local authority feel that it’s “reasonable” for a tenant to stay until the point the landlord has jumped through every hoop to get their property back. The costs for an eviction aren’t exactly cheap.

    To me this makes it pretty much worse for everyone.

  6. Yes. My concerns arent with the overall aim of radically changing the way homelessness is dealt with by a local authority, in fact my view of this Bill is that it doenst go anywhere close to dealing with the problem.

    The 5 tests of homelessness have long since passed their sell-by date. Making people’s complex lives fit little tick boxes or the value judgements of homelessness officers is a nonsense that benefits not a single person in the process.

    It is at best a reworking of the same old same old but Giles you accurately point out that the landlords costs are ultimately passed on to the tenant as a reason for the council to get involved but what, as is very common, a landlord serves notice because they want to raise the rent when the benefit cap puts the property beyond the reach of the tenant? Why should the council or the tenant be asked to foot the bill of protecting the landlord’s investment?

    Due process requires a landlord to evict through the courts and a tenant has a contractual right to occupy until possession is granted, which is why those subject to a notice arent actually homeless within the meaning of the Act, unless reasonableness is raised and the reasonableness in Para 8.32 of the code and these intended proposals, whether you look at the costs to the tenant or the landlord are merely passing the cost onto the council HPU instead.

    • I don’t see any costs being ‘passed on’. And there is the additional statutory power proposed to avoid or forestall full duty. As for the rest, benefit cap etc, of course – the bill does nothing about the perfect storm creating homelessness.

  7. Okay, strictly speaking the literal costs of possession action arent passed on but the HPU is being expected to save the costs to the landlord of possession proceedings by using public funds to re-house, simply because the landlord wills it.

    But here is my view as someone who’s job straddles rogue landlord enforcement and homelessness prevention.

    De-legalise the entire homelessness system. bring in a system where prevention, true prevention , not just buying time or farming applicants out to affordable areas is where its at. Take the billions wasted each year shoring up the 5 tests system and invest in multi agency, proactive problem solving, as opposed to making people’s lives fit boxes.

    Councils are generally shite at creative problem solving and inter-team working. That is their cross to bear but government need to not only usher in effective systems but also be able to fund them.

    I notice these admittedly rather arch comments by the LGA on these new proposals

    ““The Communities and Local Government Committee report acknowledges that councils cannot do this alone – This needs to include a collective effort from all public services, enabling councils to join up local services – such as housing, welfare, health, justice and skills – to prevent homelessness, address the widening gap between incomes and rents, and to resume their historic role as a major builder of affordable homes”

    I heartily agree and will add more when I get back from Disneyland haha

  8. Pingback: Homeless Reduction Bill - part 2 - Nearly Legal: Housing Law News and Comment

  9. Hi Giles. I’m a Housing Crisis Caseworker for a charity and I’ve been reading your blog for many years now. What about the possible use of CPR 46.2 (joining the local authority to the proceedings just for cost purposes and asking the court to make the local authority, rather than the tenant, liable for the £355 court fee and other relevant costs) in cases where the local authority unreasonably requires an order for possession? Am I barking up the wrong tree here?

    • It has been suggested before, but never heard of it being used successfully. I have my doubts, to be honest, particularly on an undefendable possession claim. In effect, T would have to show that the council was responsible for bringing the proceedings (no – as council advice to stay can’t be taken as binding on the tenant, simply advising of council’s position), or acted in bad faith or for an ulterior purpose (just possibly, but again, council advice not binding on the tenant), or there is some other conduct which makes it just and reasonable to make an order (again, council advice is not binding on tenant), or a clear case of wanton and vicious intermeddling with a dispute by a third party (Can’t see this being made out).

  10. Many thanks Giles. You mention that council advice isn’t binding on a tenant. However, in a situation where the tenant has no alternative accommodation and the tenant could be making themselves intentionally homeless if they don’t comply with council advice, could it not be argued that, in practical terms, the tenant has no choice but to comply? If so, then isn’t the advice effectively binding – if not in law then certainly for practical purposes? I just wondered if that had ever been successfully argued and, if not, what you thought of trying that argument.

    • Council not legally obliged to assist tenant until risk of homelessness – and on current case law, that can be taken as point of eviction. So, council not failing in its legal obligations by not assisting pre-proceedings. So, absent the council failing in its duty, I can’t see where you are going to get that third party costs liability from.

  11. Understood. Many thanks. Do you see any possibility of that changing if the council could be shown to have failed in it’s new prevention duties – if the bill passes?

  12. Pingback: Homelessness Reduction Bill: what is homelessness? | Shelter blog

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.