Mark Prichard has a very helpful version of Part VII as it will be amended – this was done before the Lords stage, but there were no amends in the Lords.
What follows is an overview. The statutory guidance that has yet to be released will be important, so this cannot be at all definitive. However, DCLG explanatory factsheets from November 2016 can be found here.
Threatened with homelessness
S.175 is amended at (4) and has a new (5)
(4) A person is threatened with homelessness if it is likely that he will become homeless within 56 days.
(5) A person is also threatened with homelessness if –
(a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person’s occupation, and
(b) that notice will expire within 56 days.
This extends the previous 28 day period for ‘threatened homelessness’ to 56 days and makes clear that a valid section 21 notice that expires within 56 days also constitutes being ‘threatened with homelessness’.
Two things to note on this s.21 point. First, one would expect housing options units to be buffing up on the conditions required for service of a valid s.21 notice (our attempt at a flowchart for guidance is here), as if the notice is not valid, there is no ‘threatened with homelessness’ trigger under s.175(5).
The second is that this does NOT amount to the end of councils’ frequent practice of insisting that tenants await possession proceedings, possession order and sometimes even a date for execution of warrant before they will be considered to be homeless. (This was a topic giving rise to considerable friction during the passage of the Bill. Suffice it to say the LGA and DCLG were not prepared to countenance the expiry of a s.21 giving rise to actual homelessness, despite the current statutory guidance). However, while being ‘threatened with homelessness’ triggers the 56 day prevention and help duty – see below – the new s.195(6) means that the prevention duty will continue for longer than 56 days if the applicant remains in the property, unless terminated for some other reason. So, where a s.21 notice has been served and will expire within 56 days, the prevention duty will potentially continue up to the point that the applicant is homeless.
We will see what the forthcoming guidance has to say on this topic and when an applicant should ordinarily be considered to be homeless after the expiry of a s.21 notice.
Duty to provide advisory services
I’m not going to dwell on this, but it is worth noting that the new s.179 is considerably more detailed on the extent, scope and targeting of the advisory services that the council must secure are provided by themselves or others.
Duty to assess every eligible applicant’s case and agree a plan
The new s.189A is key. The council must carry out an assessment in all cases where an eligible applicant is homeless, or threatened with homelessness. This is regardless of whether there is any priority need or possible intentional homelessness.
The assessment must include:
(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.
The assessment must be provided to the applicant in writing. Following 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 are to take under this Part for those purposes.
If there is agreement, this must be recorded in writing. If there is no agreement, the council must set out in writing:
(a) why they could not agree,
(b) any steps the authority consider it would be reasonable to require the applicant to take for the purposes mentioned in subsection (4)(a), and
(c) the steps the authority are to take under this Part for those purposes.
Not to forget the immortal addition:
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).
Both the assessment and the appropriateness of the agreement and steps to be taken by the council must be kept under continuous review until the end of duty in one form or another, and any changes to the council’s assessment notified to the applicant in writing. Likewise if any agreement or step is no longer considered appropriate by the council.
So there is an initial and continuing assessment duty, which would mean, for example, that any questions of priority need and intentional homelessness should have been addressed at an early stage – although they do not affect the prevention duty.
Duties in cases of threatened homelessness
The new s.195 sets out the ‘prevention duty’. This applies to all eligible applicants threatened with homelessness, regardless of priority need or intentional homelessness.
The duty is “to take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation”.
The reasonable steps must be with regard to the s.189A assessment.
This may extend to providing accommodation but certainly does not have to.
This duty ends when:
- The authority is satisfied that the applicant has suitable accommodation available, with a reasonable prospect of this being for at least the next 6 months (s.195(8)(a)). The definition of “reasonable prospect” is going to be interesting.
- Or, the 56 day ‘threatened with homelessness’ period has expired (save where a s.21 notice will expire in the next 56 days or has expired – s.195(6)), even if the applicant is still threatened with homelessness.
- Or, the applicant has become homeless (in which case the new s.189B duty kicks in – see below)
- Or, the applicant has refused an offer of suitable accommodation (available for longer than 6 months)
- Or, the applicant has become homeless intentionally from any accommodation ‘made available’ to the applicant by the authority under the ‘help to secure’ provision at s.195A(2).
- Or, through the applicant’s ‘deliberate and unreasonable refusal to co-operate’ under new s.193B and 193C (see below).
Notice of the end of this duty must be given in writing and is potentially subject to s.202 review.
Initial duty owed to all eligible persons who are homeless
Assuming that the applicant has become homeless, or is homeless at presentation, then the new s.189B duty applies.
It is worth noting that referral to another local authority in England can take place at this stage under new s.198(A1) – see below.
The duty is that the Authority “must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months (or such longer period up to twelve months as may be prescribed)”.
Steps taken by the Authority must be decided with regard to the s.189A assessment.
Under new s.189B(4)
Where the authority—
(a) are satisfied that the applicant has a priority need, and
(b) are not satisfied that the applicant became homeless intentionally,
the duty under subsection (2) comes to an end at the end of the period of 56 days beginning with the day the authority are first satisfied as mentioned in subsection (1).
Thus the usual main housing duty under s.193 does not kick in until 56 days after the Authority is satisfied that the applicant is homeless, where the applicant has a priority need and is not intentionally homeless.
Note that the 56 days is from the Authority being satisfied the applicant is homeless, not when the Authority is satisfied that they are in priority need and not intentionally homeless. So, for an applicant who first approaches the Authority as homeless, that 56 days includes the period of s.189A assessment and s.184 enquiries. On the other hand, for someone who approached as threatened with homeless and where the s.189A and s.184 assessment and decisions have already been made, the Authority has a clear 56 day window to ‘help to secure accommodation’ before the s.193 full housing duty kicks in.
That said, the s.188(1) duty to secure that accommodation is available for the applicant if the Authority has reason to believe that they may be eligible, homeless and have a priority need still applies, slightly amended.
So, while the ‘help to secure’ duty in general does not mean a duty to accommodate, for those who may be eligible, homeless and in priority need, there is a duty to accommodate, and, for those found homeless, eligible, priority and not intentionally homeless, this lasts until the end of the s.189B(2) duty (as provided in new s.188(1ZB)).
For those subsequently found not to be in priority need, the s.188 duty ends with the end of the s.189B(2) duty.
In general, for everyone else, the ‘help to secure’ duty does not mean a duty to secure accommodation by the Authority. However, for those not in priority need, this is a further duty to assist the applicant to secure suitable accommodation.
This duty can be ended where (s.189B(7)):
(a) 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 has secured accommodation),
(c) the applicant has refused an offer of suitable accommodation and, on the date of refusal, there was a reasonable prospect that suitable accommodation would be available for occupation by the applicant for at least 6 months or such longer period not exceeding 12 months as may be prescribed,
(d) 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),
(e) the applicant is no longer eligible for assistance, or
(f) the applicant has withdrawn the application mentioned in section 183(1).
In addition it can be ended (s.189B(9)) under:
(a)section 193A (consequences of refusal of final accommodation offer or final Part 6 offer at the initial relief stage), or
(b)sections 193B and 193C (notices in cases of applicant’s deliberate and unreasonable refusal to co-operate).
Any decision to end the duty is subject to s.202 review.
Duties to the intentionally homeless (beyond the s.189B and s.188 duties)
Under amended s.190, duties to those in priority need but intentionally homeless are now (s.190(2)(a)) to secure accommodation is available for such period as will give the applicant a reasonable opportunity of securing accommodation, such period commencing after the end of the s.189B(2) duty. This is potentially a longer period overall than in the current position.
Ending duty – Final Accommodation Offer
The s.189B duty is ended (and the s.193 duty does not arise) if a ‘final accommodation offer’ or a ‘final Part 6 offer’ is refused in the s.189B period, assuming the applicant is notified of consequences of refusal and right to request a review.
A final accommodation offer is of an assured shorthold tenancy of at least 6 months term.
A final Part 6 offer is what you’d expect – an offer under Part 6 Housing Act 1996.
The offer must be suitable and the Authority must be satisfied that the applicant is under no contractual obligation (on a current tenancy) that could not be ended before they would have to take up the offer.
Ending duty – Deliberate and Unreasonable Refusal to Co-operate
Oh, but this was a hot potato in the development and progress of the Bill…
Both the ‘prevention’ duty and the ‘help to secure’ duty can be ended if the applicant has deliberately and unreasonably refused to co-operate. The procedure is set out in new section 193B and the effects in the new section 193C.
Procedurally, if the Authority considers, with regard to the applicant’s particular circumstances and needs, that the applicant:
has deliberately and unreasonably refused to take any step—
(a) that the applicant agreed to take under subsection (4) of section 189A, or
(b) that was recorded by the authority under subsection (6)(b) of that section.
then the Authority must first give a ‘relevant warning’ notice (s.193B(5)) setting out the failure and warning of the intention to serve a notice if the steps aren’t taken. If, after a ‘reasonable period’, the Authority consider that the Applicant has still unreasonably refused to take the specified step, the Authority may serve a notice under s.193B(2)
The notice must (s.193B(3)):
(a) explain why the authority are giving the notice and its effect, and
(b) inform the applicant that the applicant has a right to request a review of the authority’s decision to give the notice and of the time within which such a request must be made.
The notice is subject to s.202 review.
The effect of the notice is to end the s.189B(2) or s.195(2) duty. However, where the authority are satisfied that the applicant is homeless, eligible, in priority need and not intentionally homeless (s.193C(4)):
Section 193 (the main housing duty) does not apply, but the authority must secure that accommodation is available for occupation by the applicant.
This ongoing duty ends if the applicant ceases to be eligible, becomes homeless intentionally from the accommodation made available, accepts an offer of ‘an assured tenancy from a private landlord’, or ceases to occupy the accommodation made available. It also ends if the applicant refuses a suitable final offer of private or Part 6 accommodation.
Referral to another Authority
A new section 198(A1) provides that a s.198 referral to another Authority can be made at the stage where the first Authority would otherwise be subject to the s.189B(2) duty – the help to secure duty. By new section 199A, on notification, the first Authority is not under a s.188 interim duty or a s.189B duty, but if the Authority has reason to believe that the applicant may be in priority need, they must secure accommodation until the applicant is notified of the decision as to whether the conditions for referral are met.
If the conditions for referral are met, then the notifying Authority must pass the s.189A assessment and any decisions on eligibility, homelessness, priority need and intentional homelessness to the notified Authority. The notified Authority may come to a different decision if the applicant’s circumstances have changed or further information has come to light and this would justify a different decision.
A notification of a s.199(1) referral may not be made until the s.189B(2) duty has come to an end (s.200(1A)).
Local connection
The new section 199(8) makes provisions about deemed local connection for former relevant children.
Reviews
S.202 is amended to add provision for reviews of decisions as to duty owed under section 189B to 193C. Also added are reviews of (s.202(1)):
(ba) any decision of a local housing authority—
(i) as to the steps they are to take under subsection (2) of section 189B, or
(ii) to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,
(bb) any decision of a local housing authority to give notice to the applicant under section 193B(2) (notice given to those who deliberately and unreasonably refuse to co-operate),
(bc) any decision of a local housing authority—
(i) as to the steps they are to take under subsection (2) of section 195, or
(ii) to give notice under subsection (5) of that section bringing to an end their duty to the applicant under subsection (2) of that section,”
and of the suitability of any ‘final accommodation offer’ or ‘part 6 offer’.
Protection of Property
The s.211 duty to take reasonable steps to protect the applicant’s property is extended to include when a s.189B duty is owed – so encompasses all eligible homeless.
Duty of public authority to refer cases in England to local housing authority
This is a new and wide duty, under new section 213B under which a ‘specified public authority’, where it considers that a person in relation to whom it exercises its function ‘is or may be homeless or threatened with homelessness’.
The public authority must ask the person to agree to being referred – with contact details – and if the person agrees and specifies a council – the public authority must notify.
‘Public authority’ is very widely defined as “a person (other than a local housing authority) who has functions of a public nature”. This would include NHS Trusts, GPs, schools and all manner of council services.
Codes of practice
Finally, the new section 214A makes provision for the Secretary of State to issue codes of practice, to which Authorities must have regard.
Conclusion
There is a lot there to bed down, and no doubt to be tested in reviews and appeals.
I suspect that the extent of the ‘help to secure’ duty and the threshold of ‘unreasonable refusal to co-operate’ will both be up for early challenges. There will also, quite possibly, be a lot of judicial review pre-action protocol action on Authorities not complying with the s.189A assessment duty, or the s.195 and s.185B duties. We shall see.
The trade offs are that private sector discharge will be – at least initially – for a 6 month tenancy, and the possibility of early referral to another Authority. Moreover, there is the 56 day ‘help to secure’ window for those who will be owed the main housing duty (though in practice, I suspect that this will make little difference, save in discharge by a 6 month PRS term during that 56 day window, while s.193 duty still requires a 12 month term).
We await the code of guidance, which will clearly have significance for many of the decisions under the new provisions, but whatever that contains, or doesn’t, these will be interesting times.
