(Our very grateful thanks to Mike Norman of Harrow Law Centre – our official Wales correspondent, whether he knows it or not – for the following update.)
On 10th October 2023, the Welsh government released its Consultation on the White Paper on Ending Homelessness. A decent response period (still open until 16th January) at least gives the impression that, unlike perhaps some other Government consultations, there is genuine interest in the anticipated responses. That is, however, if you can get through the spritely 168 pages of it- itself following an expert panel report of 60 pages commissioned by the Government in line with the Labour-Plaid agreement on establishing a route to try to end homelessness.
The response gives a detailed legislative background and commentary to each proposal response, so is a good read for those wanting to get to grips with Welsh homelessness law (and, given how English law has followed suit in this and other areas in recent years, is not a waste of time for those who practice in England only either).
Within such an imposing document, it would be easy to get lost in the detail. However, there are some very significant proposals which, if progressed, changes the fabric on which homelessness legislation in Wales has sat for at least 26 years, and, as history has taught us, might just influence English policy in due course too…(well, we can hope).
The story so far
My first housing law supervisor taught me back in 2007 “Part VII of the Housing Act 1996 (which then applied in Wales) was designed to exclude”. It was a brutal introduction to homelessness law to consider that one of it’s primary functions was to work out how to avoid helping people.
By the delight of devolution, the Housing (Wales) Act 2014 got to work reducing these inherited legislative barriers. The ‘prevention’ duty to those threatened with homelessness within 56 (rather then 28) days, and its cousin, a new ‘relief duty’ to those who were already homeless, promoted more proactive involvement by the local authorities at the “front end” of an application. Equivalent versions of these were of course subsequently introduced in England via the Homelessness Reduction Act 2017.
Soon enough, further legislation then widened the ‘priority need’ categories in Wales to include those who are street homeless and even exempted some people from the consequences of being found ‘intentionally homeless’ (though only for one presentation every 5 years.)
It’s no secret then that the regime in Wales has deliberately looked to distance itself from what came before, and begin a more progressive journey, albeit sometimes cautiously. With this in mind, what’s the plan next?
Away with the funnel
The most eye-catching proposal is to remove the priority and intentionality tests entirely. Yes, you read that correctly, no more priority need or intentionality requirements in Wales. It’s a long-term proposal, but would mean any applicant who is accepted as ‘homeless’ and ‘eligible’ will be owed a full duty, as long as they also have a ‘local connection’. The time-limited ‘relief duty’ will of course become redundant, so it is proposed to remove this as well.
If taken forward, this will be radical indeed. It transforms the pathway of a homelessness application can follow, away from complex ‘funnel’ structure (where many cases are dealt with at the ‘prevention’ stage but distilled down to relatively few that secure a ‘main duty’) to a much flatter structure where a significant amount of applications will likely end up with the highest duty. What’s more notable is that this seems to be the intention, rather than some accidental consequence, and marks an almost complete departure from the 1996 Act’s exclusionary vision.
The stated aim of these reforms is to deliberately trigger systemic change which ‘ends a culture allowing a professional determination of who is or is not entitled to support’. The consultation also reports the priority need test is ‘overly medicalised, placing unreasonable expectations on the skills and abilities of front-line homelessness staff’ and that an earlier review of it had identified the “’high threshold for vulnerability’ as a key weakness of the test”, having traumatising effects for both those experiencing homelessness and front-line staff . No doubt many involved in these cases will say ‘Amen to that’.
This also means proposed widening of the emergency accommodation duty, to include all those with an ‘appearance’ of being eligible and homeless (i.e. the apparent priority need barrier becoming redundant also).
Preventing homelessness for six months
Wales was already responsible for increasing the timeframe for when someone might be considered threatened with homelessness. Now, she’s at it again, this time the proposed increase being from 56 days to 6 months, or where someone has been served with a Notice Seeking Possession. Although it seems a large jump at first glance, in fact this just coincides with the longer possession notice periods which now apply in Wales under the Renting Homes (Wales) Act 2016.
The Welsh Government proposes to retain Local Connection tests. Ironically, this newly-dubbed “crucial case management tool’ isn’t actually considered when applying the main duty at present, but is proposed to be moved from its current position of guarding the relief duty only(for prison leaver cases, the prevention duty). This might manage any potentially disproportionate burden on some areas, however the Consultation itself recognises the evidence of how this works is a bit patchy and keeping it doesn’t fully align with the aims of the reform.
The Welsh government promotes relaxing the test quite a bit for certain cases, for example, those who are care-experienced but not accommodated by social services; prison leavers needing to move to assist with rehabilitation, and those from LGBT+ groups who have found families and friendship groups away from traditional ‘home’ area..
To prevent an apparent inadvertent incentive to ‘game the system’ to gain social housing priority, the Welsh Government has coined a new ‘deliberate manipulation’ test. It will limit/remove additional priority in allocation where such conduct is found, but would not prevent the duty to help arising in terms of affecting someone’s entitlement to help via the private sector.
It’s not clear to what extent this will look retrospective behaviours (and therefore retain a loose similarity to intentionality). The consultation itself initially suggests it will be a narrow test which appears to be based on how the application itself is conducted (e.g. misleading the Authority) with perhaps some punitive ASB mentions. These findings will however be subject to review.
Allocation, allocation, allocation
To prevent long-term spends in temporary accommodation; the plan appears to be to time-limit ‘additional preference’ for those accepted as homeless, even over others with reasonable preference under s167(2) Housing Act 1996. Quite where the needed additional housing stock to meet these allocations will come from remains to be seen, so Welsh Government also proposes an increased range of ways in which the main duty can be ended (e.g. returning to the family home). Interestingly, some proposals seem to require the applicant to agree that the accommodation is suitable, which is of course different to an authority being able to simply decide it, so is again more applicant friendly. It’s also suggested that the local authority keep in touch with the applicant six months later to check everything is still in order.
Odds and ends
A number of other changes also deserve a mention, though they are more piecemeal nudges in the right direction rather than the almighty shove outlined above:
- Care Leavers facing homelessness and those fleeing abuse will have additional preference over others within local authority allocation schemes
- social landlords will be less able to refuse referrals from Councils where applicants are homeless
- a statutory duty will apply to drawing up a PHP (rather than their use being recommended) and include the applicant’s views on it, with a right to challenge the steps to be taken by either the applicant or the authority. It is also suggested that there be a compulsory review every 8 weeks.
- Applicants will have a new right of review of a suitability assessment in respect of interim accommodation, available at any time during the period of occupation and with clearly communicated review rights (likewise with temporary accommodation).
- A statutory duty will apply to those who are given an occupation contact in discharge of the homelessness duty but need support to maintain it. The authority will not be able to discharge its duty unless actually satisfied that the support needed will be in place or that the contract won’t fail. This may mean the authority has to provide the support itself.
- Rules around suitability are strengthened, including a deeming provision that properties with category 1 hazards are unsuitable, along with properties deemed as ‘unfit for human habitation’.
An omission from the original consultation, but now added in, are proposals to prohibit use of the homeless system out of care or youth justice, and that no 16 or 17 year old should be placed in unsupported temporary accommodation.
Viewed through a conventional ‘rights-based’ lens, these proposals will likely be very welcome to bleary-eyed housing campaigners. But it seems the support for more progressive policy is more widespread than that; 15 out of 22 Welsh local authorities support removal of the priority need test, conditional on extra resources.
Realistically though, supply remains the nub of the issue. The success of any relevant legislation will rely on having resource to meet demand. Otherwise, informal practical barriers will simply be replaced formal legislative ones with little actual progress, risking a slew of legal challenges.
Sadly, what the paper does not do – and cannot do- is deal with the paucity of housing legal aid in Wales, an unfortunate quirk of the ‘jagged edge’ devolution settlement where the Senedd has competence to make legislation, but no real influence over the justice system.