(As ever, we are very grateful to Mike Norman of Harrow Law Centre for his updates on housing law in Wales. This is the second of two posts by Mike on the huge changes in homelessness law set out in the Homelessness and Social Housing (Wales) Bill, including the end of priority need and of intentional homelessness. The first post is here.)

I’d concentrated primarily in part one, on what the draft bill is getting rid of. This second part focuses more on the new duties being introduced, and how I perceive the draft bill to actually function going forwards.

1. Duty to ‘help to retain’ suitable accommodation

This is a new duty, currently existing in neither English or Welsh law, and I find it very intriguing.

It provides where accommodation is ‘retained’ or ‘secured’ as a result of the Authority’s functions (note the broad definition), if an applicant is considered to be at risk of become homeless or threatened with homelessness without additional support from that accommodation, then the Local Authority will have an ongoing duty to take reasonable steps to help to secure it.

This extends the prevention agenda, however I’d say it is unique because it is (i) anticipatory (if the applicant is actually threatened with homelessness, the duty won’t apply yet) and (ii) it is back-ended, i.e. an add-on, once accommodation is secured. It is clearly intended to avoid the ‘boomerang’ effect of people with unmet support winding back up in the system following duty discharge. Once accepted, the duty then lasts for a period of up to 12 months.

In the 8^th evidence session, (consisting of Housing Association representatives), Natasha Asghar MS refers to the Regulatory Impact Assessment saying this duty will end up costing £7.8 million (291).

Responding, Elly Lock (Community Housing Cymru) notes that the assumption made in the RIA is based on a notional 10% of people needing further support.  Views on the proportion of occupiers likely to need support, quickly escalates in the following discussion going up to 80%. Concerns are also articulated, over whether the duty being 12 months, will end up being long enough.

I can see why this duty is of considerable interest to Housing Associations, in context of the extension elsewhere (which I haven’t gone into) of extending their ‘co-operation’ duties with Local Authorities to accommodate homeless applicants.

The observation about whether the 12 months is ‘long enough, I suppose, depends on the  extent to which decisions around tenancy support (or should I say, contract-holder support)  require the duty to apply. If such decisions are not reliant on the ‘help to retain duty’ remaining live, then this is probably less of a concern. If the decisions over support to individuals end up being tied to the duty, then in practice the 12 months would indeed form a cliff-edge. Again, then, funding is key to this.

The second observation I’d make on this, is that whilst I’m describing these as ‘back end’ and ‘anticipatory’ duty, the job of assessing support needs should actually be being done at the front end, when assessing the support one needs to gain and retain accommodation (s62(5)(c)).

Tempting as it might be to shortcut the assessment of potential support need, ultimately a safe duty discharge of this type surely runs less risk of a challenge, or worse, failure of the contract provided, if the support assessment is done properly. I’d argue, in fact, the design of the legislation is such that the time removed having to investigate priority, intentionality etc. can be refocused on considering support needs.

I share Katie Dalton’s (Cymorth Cymru session 4 at 328) hope that this will prove to be ‘invest to save’ resource, given that the costs of an eviction process are far higher than providing support. It’s joined up thinking, reaching across the silo and I’m here for it. A success of this legislation would be that more investment is made leading to targeted support provision, from which one would hope to see see lower contract  failures, lower number of multiple homelessness applications from a single household.

2. PSAPs (Prevention, Support and Accommodation Plans)

It’s worth remembering that whilst the Housing (Wales) Act introduced prevention and relief duties, the Act is 3 years older than it’s English equivalent. Perhaps unsurprisingly, it was not as developed as the English s189A duty which followed, and was more prescriptive in terms of Local Authority requirements in England (not just requiring Authorities as in Wales, to set out reasonable steps). The bill updates the Welsh position, with striking similarities to the English legislation, providing the basis of a cross-country minimum standard.

It proposed Authorities review the applicant’s plan every 8 weeks until discharge, whether the plan is made under the section 66 (prevention duty) or the section 75 (full duty). Remember, as I mentioned in part 1, the prevention duty in Wales doesn’t have a 56 day cutoff, so this could be subject to rolling amendments as appropriate to an applicant’s developing situation over a much longer period. The draft bill states that an applicant is able to request a review at any time the PSAP duty remains in operation.

To my mind, the above duties dovetail, in respect of taking support seriously, and  demonstrating a homelessness application can indeed be about more than just about accommodation.

3. Duty to ‘ask and act’

At first blush, this appears equivalent to the ‘duty to refer’ in England. The duty is where a specified public body is concerned an individual may be homeless or threatened with homelessness, with consent, to notify the Local Housing Authority.

Going one step further, the draft Welsh law then adds that the referring public body is to consider whether there are any other steps it could reasonably within it’s own functions to help the person secure or remain suitable accommodation. If there are any, it must take those steps (draft s94A(5)(b)).

Within the explanatory memorandum, ch 3, para 93; the Welsh government pledge implementation support via learning and development for the relevant public bodies. It’s important to recognise that the further step means this can’t simply be ‘let’s email the homelessness team and then forget about it.’

There is are lively discussions in the evidence sessions, in respect of the public bodies to which the bill won’t currently apply. Schools, GP surgeries and the police are not planned to be on the specified list. Whilst such organizations are at the front line, and might be in a position to spot signs indicating homelessness, different explanations are given in respect of each.

I won’t get into that now, although I do note with interest that in discussions regarding the police, it is suggested that it would be complex, to give police duties in Wales, which they wouldn’t have in England (given policing isn’t devolved). Another candidate for a future ‘jagged edge’ article.

4. Local connection changes

In all likelihood, the proposed removal of priority need and intentionality tests will give the local connection test a far greater prominence than it previously had.

In respect of the prevention duty, as a reminder, the current law in both Wales and England is the same, i.e. no statutory referral mechanism exists to refer someone out, to avoid a ‘threatened with homelessness’ duty.

The draft bill makes one change to this, i.e. for Welsh prison leavers, they will now be able to be referred back to their local area, even at prevention stage (mostly discussed in session 10).

For the later duties, Welsh law presently only allows Authorities to refer out at relief stage (see s73(2)). The current law is that there is no such current wording to avoid the s75 duty (full duty). This is unlike the English law, where a Local Authority has two bites at the cherry to refer out, see both at s189B(2) (relief duty) and s193 (2) (full duty).

With the relief duty ending in Wales, the local connection test, unsurprisingly, is being moved, with section 80 being updated to explain the process. Under this process, it will be possible to refer people on, with no local connection to the host authority but who have a local connection elsewhere.

What I’m struggling with a bit more, is that the Welsh Government are also saying for the full s75 duty to be accepted, an applicant would now need to demonstrate they have a local connection with Wales (draft s75(4)).

Presumably designed to stop an influx of applicants from England, I think it’s designed to act as a sort of a ‘double-lock’. The aforementioned ability to refer applicants on, if the applicant doesn’t have a local connection with the host authority but does elsewhere, I consider as the first lock and the requirement to have local connection with Wales as the second lock.

In the second session questions arose as to what the second lock actually adds (see 60-75). In evidence session 3 (190-199), it was considered that one group who might be caught in the second lock but not the first, would where someone has no local connection at all, including in England. It does seem very unlikely such a group would be a priority target for the Welsh Government, on the basis of the low numbers and, frankly, likely to have a background in a group the Welsh Government would probably consider vulnerable.

In other evidence sessions, concern focuses on the apparent stepping back from white-paper position, which had offered greater local connection exemptions (which at present, focuses on abuse).

It seems the Government indicate they will issue draft regulations in due prior to implementation, to address this. On this point, an interesting question from Laura Anne Jones MS in the eighth session, at 288:

“(…) do you think that secondary legislation is the right way to do that to protect those vulnerable people you’ve just outlined, like veterans, those who’ve been abused, refugees, and so on, because they won’t have those local connections? I’ve seen, even in my own casework, how that’s quite hard on those people. Do you think doing it with secondary legislation later on, perhaps, hopefully before the end of this term, is a good idea? Or does that not guarantee it enough? Should it be on the face of the Bill? Diolch.”

Laura raises a couple of important points. First, of course, in respect of regulations; my understanding is that internal Senedd processes do treat Acts and regulations differently, as one would expect. Secondary legislation would involve a lower degree of scrutiny, although accordingly could then go through the system quicker. I can understand why it is seen as harder to rely on.

Secondly, Laura identifies the impact local connection tests have on vulnerable groups, including refugees. I think it’s worth noting here, that residence tests (applied by English local authorities operating allocations policies, so slightly different to homeless local connection) have been tested in the Court of Appeal, and on occasion been found to constitute  indirect discrimination under the Equality Act, including in the case of refugees, as in the Ward and Gullu cases (a conjoined appeal which also included an Irish traveller, on the same principle).

Laura doesn’t need that analogy to make her point. What she has done, since the evidence sessions, is defected from the Conservatives to Reform UK. I look forward to seeing if she remains faithful to the principled positions she’d expressed above, in the coming months.

5. Reviews

In part 1, I’d noted the current paucity of Welsh civil legal aid. I did suggest I’d write a specific bit on legal aid, however it becomes intertwined with the points with reviews.

The draft bill increases the number of points in an application, at which homelessness applicants can request a statutory review. I think this  should be a very good thing, for example failure to undertaken an assessment under s62, can now result in a statutory review. The alternative mechanism – Judicial Review – is costly, very much not user-friendly, and broadly inaccessible without legal aid.

A statutory review right is not however a panacea for all ills. There are maximum time periods to conclude cases, so can be unwieldy if a quick response is needed, because the starting point is likely to be an Authority is within time.

If an applicant is unsuccessful on review,  identifying a point of law to go to the County Court requires legal assistance very similar to the assistance needed for Judicial Review.

Moreover, unless the draft bill prompts a culture shift, the purpose of the legislation is thwarted.

For example, sticking with the example of failure to assess under section 62. Deciding not to assess previously, could be a paperwork-light exercise, i.e. one doesn’t necessarily need to do any. Requiring a positive decision and reasoning that an application isn’t being taken, changes that dynamic. An applicant might feel forced need to threaten Judicial Review, in order to at least get the decision issued.

Therefore, this takes matters in a not-very-wide circle. Radical change would involve additional provision of independent advice/representation.  However, of course, justice remains reserved.

A second example of the greater review rights , is that the 21 day period for requesting a review of suitability, will be extended to six months where the updated s84 applies.

Summary

There are, of course, further important developments I haven’t been able to cover; e.g. changes to the non-co-operation duty, getting in touch with certain applicants after the s75 duty is discharged, and others.

The bill is of course at draft stage, so there is still time for changes and things being given greater prominence. One expects however this won’t be able to drag on too long though – there’s an election due by next May.