(As ever, we are very grateful to Mike Norman of Harrow Law Centre for his updates on housing law in Wales. This is the first 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.)

Has it really been 10 years?

Coming into force on 27^th April 2015, the then-shiny Housing (Wales) Act 2014 was, to my mind at least, the first really big divide between English and Welsh housing law.

In fact, if I can be allowed to stretch a metaphor, I’d describe it as a first full flex of a devolved legislative muscle;  in force fully 3 years before it’s English equivalent, it started the crucial process of moving away from the historic homeless practice. This practice, of course, involved simply assessing applicants for homeless assistance against a series of test, placing the applicant in a supine position awaiting the Local Authority’s judgment on their case. Producing the result of a pretty strong set of accommodation rights for specific classes of applicant owed the ‘main housing duty’, there was little to no support for anyone else.

Accelerating at pace through the introduction of the prevention and relief duties by the 2014 Act, it has been updated at fairly regular intervals, particularly in respect of ‘priority need’ and ‘intentionality’ legislation, ever reducing the groups of applicant who would not be assisted.

The Homelessness and Social Housing (Wales) Bill  promises a rather spectacular extension of the process, essentially ripping off the plaster of priority need and intentionality entirely, and positioning itself towards a support and trauma-informed system to resolve homelessness.

It might come as little surprise that the proposals were contributed to by a group of experts by experience, alongside a cross-organisation expert review panel. The net result is that some of the proposals might feel, well, pretty jaw-dropping for those with longer memories (though some proposals have gone less far than some might like, as the inevitable price of cross-organisation support). As I’ll come on to however, for those doing the hard front line homelessness work, some apparently radical proposals, merely reflect the reality of practices which have been developing for some time.

I’ve become somewhat drawn in by the amount of information already in the public domain on this; there’s the bill itself, the explanatory memorandum, the regulatory impact assessment, and 11 evidence sessions already (spread over 4^th, 18^th and 26^th June).

I will deal here with what I think are perhaps the immediately attention-drawing proposals, and intend to come on to the more important of the ‘behind the headline’ developments (in my opinion) shortly.

Unfortunately, due to the level of information already out there, I can do little more than scratch the surface, in respect of the evidence sessions, with the consequence of a bit of a focus on the earlier sessions, since many of the themes are then repeated.

1. Prevention duty extension

The prevention duty always was intended to be widely drafted. I well recall when the Act was introduced, considering the flowchart drawings showing how the Act was to work*: it was  a funnel design, wide at the top and narrowing at the bottom as people went through the application and, hopefully, having their homelessness resolved early.

The updated prevention duty is still planned to cover the same initial wide group of people – eligible and threatened with homeless. The definition of ‘threatened with homeless’ is proposed to be increased from 56 days to 6 months.

An important cross-border point for readers who familiar with the English but not the Welsh homelessness system; the Welsh prevention duty does not carry a time-limit discharge after 56 days (i.e. no equivalent of s195(8)(b)). The conditions for ending the prevention duty are in section 67 of the Act, and effluxion of time isn’t one of them.

This means bringing the start date forward will actually to an increased scope of the prevention duty, in a way that wouldn’t be the case in England on the current law. It also, of course, brings the prevention duty into line with the current timescales Welsh private landlords have to give for the ‘no ground’ eviction notice (6 months), therefore providing for internal consistency within the legislation.

In explaining the proposed change, and just as important the proposal to implement this part quickly, Welsh Government are clear that the cost is an important factor in context of other proposals.

Giving evidence to the LGHC Committee in the first evidence session, Jayne Bryant (Housing and Local Government Cabinet Secretary) stated that ‘the system we have at the moment, is the most expensive system we could possible have’ (para 19). Hannah Fisher (Head of Homelessness Prevention Legislation) added that only around a 3% increase in ‘prevention activity’ was needed in order to break even on the legislation (para 21).

Professor Pete Mackie, on whose research the original 2014 Act was based, in the second LGHC session ventured that the enhanced prevention duty could serve to assist to discharge homelessness duties and reduce the temporary accommodation spend (para 11), a position agreed by Professor Suzanne Fitzpatrick, who’d chaired the expert review panel (para 14).

In the interests of balance, it isn’t a completely accepted orthodoxy that extension of prevention is guaranteed to help out and reduce costs. The seventh evidence session included contributions from Local Authorities, and there it was suggested that is potential ceiling on the extent to which prevention can help (plateau at around 80%) which a longer duty by itself itself won’t necessarily resolve. Instead, other levers – e.g. welfare reform and housing supply, are suggested to be of more likely assistance compared to more legislation.

In all fairness, I doubt there’s much objection within the sector that the LHA rates lag in both England and Wales holds up private-rented sector discharges. In Wales’s case, there is the additional itself of welfare itself being currently outside of the Welsh Government’s control.

Much like not having it’s own justice system, it creates what is increasingly referred to as a ‘jagged edge’ making devolution feel a little disjointed at the periphery.

Coming back to the draft bill, the very significant balance of the responses appear to me to be in favour of the extension, and this is among the least contentious parts of the bill.

2. Ending priority need

Well, now.

Already the law in Scotland, the Welsh Government proposes is to remove the requirement to have (or in the case of emergency accommodation, appear to have) priority need.

This has been a long time coming. Even in the original 2014 act, there was talk about a ‘safe place to say’ i.e. for people at least working with Local Authorities through the relief duty, even if not long-term. Unfortunately, that hit the cutting room floor long before passage of the Act.

It is clear that COVID changed the homelessness landscape in Wales considerably. A solid commitment at the end of lockdown to avoid large numbers of people returning to street sleeping, had led to introduction of an 11^th priority need category – i.e. the applicant is  street homeless – introduced in October 2022 (see s70(1)(k)).

Having crossed that rubicon, the priority need tests’s days already seemed numbered. The explanatory memorandum, along evidence to the committee, confirms that only 8 Local Authorities in Wales out of 22 still actually use the priority need test. Around 276 homeless households (255) were impacted in 2023/4, down from around 5000 in 2001 (second session, para 29). In 2023/4, over 50% of the non priority decisions were made by just Caerphilly and Newport Councils. Ending priority need, then, is already a reality in most Welsh Local Authority areas.

It seems that it is the proposed timing for its formal introduction that divides opinion as much as the principle.

Unlike prevention, this currently has a more conservative timescale i.e. 2030-1 for implementation, i.e. the end of the next Senedd term. Jane Bryant’s comments, in the first session, from 65 onwards, how the Scottish experience informs how Wales will approach ending priority need. It is true that there were substantial temporary accommodation pressures there, however there hadn’t been a prevention duty introduced in line with the priority need removal. Wales hopes to avoid that experience with it’s staged approach.

In the Local Authority’s evidence session (7th as reference above), anxieties are clearly articulated about resourcing ending priority need, given some LA’s are already struggle with temporary accommodation provision and complying with legal obligations.

Liz Davies KC, in the third session, addresses the point from the other direction i.e. noting that evidence suggests there are already waiting lists for temporary accommodation, observing that this was unlawful practice, given the absolute and immediate nature of the temporary accommodation duty (established in England, in cases such as Imam v Croydon(Nearly Legal article linked)).

As a side note; in addition to talking about supply issues, which can be a formal part of the debate in the Senedd, there is a separate issue of the paucity of housing legal aid in Wales – that jagged edge again. This deserves addressing in its own right as a ‘behind the headline’  issue, and was raised stoically by Crash Wigley, para 174. I will note here that it just isn’t something which really gets an airing, probably because it isn’t something within the Senedd’s control.

During the rest of the debate, enforcement of breaches by Local Authorities aren’t really spoken about through the prism of direct legal action by the applicants themselves. This does feel like a missing piece of the puzzle, because a particular aspect of the Welsh scene involves partnership working. Concerns do get expressed about the tension between compliance action and partnership working. The lawyer in me says that surely empowering individuals to be able to take actions themselves, neatly gets around that problem.

I will finish this section off by noting the arguments that there are prevarications around ending priority need. Suzanne Fitzpatrick’s evidence (second session, para 18) is that in her view, the experience of having a 10 year implementation period to abolish the priority need criterion in Scotland simply took too long, and could have been done sooner. A danger exists with political change, it could get kicked into the long grass. Liz Davies KC comments in the following session about political will changing.

The Senedd election is, clearly, a strong focal point for the Welsh Government getting the legislation through with securing the funding commitment is arguably as important.

3. Intentional homelessness ending

Like the priority need test, the intentionality test has been on a legislative journey completely separate to it’s English equivalent.

The original Act required Local Authorities, if they were going to consider intentionality at all, to (i) positively decide and (ii) publish the specific groups of people they would apply the intentionality test to, in a form of ‘opt-in’ system.

In 2019, the Welsh Government went a step further. An exemption was introduced from the consequences of being found to be intentionally homeless,  for four specified priority need groups, as long as affected households hadn’t already benefitted from this exemption within the last 5 years (s75(3)(e)). The intentionality test was already therefore being firmly pushed to the side, because even if the Authorities had the theoretical right to consider it, the practical impact of an intentionality finding for such applicants had no effect unless repeated.

The proposal now to is end intentionality completely for all groups. In consequence, the section 75 final housing duty would only now require establishing eligibility, homelessness and local connection to be established.

It also means the ‘relief’ duty phase becomes redundant, as there is no practical distinction otherwise between the relief duty and the final duty phase.  This significantly simplifies the process and cuts out the need for investigation of these elements.

It should be said though that Local Authorities are noticeably cooler on ending intentionality, compared to ending priority need (explanatory memorandum, 32). This might seem counter-intuitive, given the number of intentionality decisions (around 90 per year) are well outnumbered by the non-priority decisions.

One suggestion as to why Authorities aren’t keen, in their evidence session, boils down to the possibility of intentionality being able to influence applicant behaviour, even if the test itself is rarely used. Strongly in the opposite direction, are the calls of the experts by experience, calling for trauma-informed approach forward.

The proposal certainly would reduce the barriers to being accepted for the section 75 duty, providing and the right to longer-term temporary accommodation, until the duty can be discharged.

However, it isn’t the end of the story, because for those wishing to be considered for a social housing allocation (probably everyone accepted as homeless), a new ‘deliberate manipulation’ test is proposed for introduction at the back-end.

4. Introducing ‘deliberate manipulation’

If one sees things purely through the lens of the current homelessness model, then the proposed  ‘deliberate manipulation’ test obviously sits in a much less threatening position than the current intentionality test.

This is because it is to be applied after acceptance of the streamlined main housing duty, but instead as part of the consideration as to whether an applicant can access social housing. Acceptance of the main homelessness duty is therefore no guarantee of a right to reasonable preference to an allocation, because this test is to be applied at the back end of an application.

To return to familiar territory, if the wording of the deliberate manipulation test is considered for any length of time at all, one might imagine the Welsh Government can hardly be surprised by those noting first, that the proposed new s167A(2)(a) is identical to the wording of the new intentionality test, and second that the additional ‘protections’ in the new s167A(2)(b), are so wide such that in reality, no additional protection is offered (a point Crash Wigley makes in her evidence, para 177).

This is a field where most responses focus on concerns regarding unintended consequences, and requests for further guidance.

For me, two other issues spring to mind. First, there is actually a group of people who will potentially be worse off by this apparent levelling of the playing field, compared to where they were before. These are the groups who were given effective protection against an intentionality finding (above) but as the legislation is drafted, wouldn’t get protection against the ‘deliberate manipulation’ test. I am not sure if it is an oversight or deliberate, but it seems to me that Welsh Government could reserve to themselves a list of groups they could exempt from the deliberate manipulation test by regulation, if they intend to reserve the protection.

Second, the consequence of the deliberate manipulation test being placed after the main duty, could mean that those falling foul of it would struggle to get a housing resolution, if they are also hard to place in the private rented sector.

Don’t get me wrong, I think the deliberate manipulation test is infinitely preferable in most cases, compared an applicant not being owed a main duty/temporary accommodation. I do wonder however whether in some cases, a Local Authority might find it is in their interest to disapply the deliberate manipulation test, if the consequence is families winding up in temporary accommodation with no chance of being discharged in the private rented sector.

Summary

The above are what I have considered the ‘headline issues’

I know there’s plenty of important stuff in the bill. which are perhaps best for a ‘behind the headlines’ follow-up: changes to review rights, PSAPS, the fun Wales is having with local connection (including a I’m not-sure-why-this-is-needed local connection to Wales test). Plus, the rather exciting new duty to provide ongoing tenancy support to certain categories of people, in order to avoid them becoming even threatened with homelessness following a duty discharge. It’s all happening.

*The Welsh Government gave strong support to the Housing (Wales) Act, running 2-day roadshow events over late 2014 and early 2015 setting out how they wanted the Act to be applied. The training was delivered on a tripartite basis with Welsh Local Government Association and Shelter Cymru training staff. I remember it well because I was fortunate to be in Shelter Cymru training contingent. It was an incredible experience. I suspect nothing like that will be attempted in England, not least because it would have to hit over 600 Local Authorities.