Being reasonable: prevention and relief under the Homelessness Reduction Act 2017
30 Nov 2017
Being reasonable: prevention and relief under the Homelessness Reduction Act 2017
As consultation on the new Homelessness Code of Guidance for Local Authorities nears closure (on 11 December 2017), Eleri Griffiths of One Pump Court outlines what to expect from the Homelessness Reduction Act 2017, and the significance of “reasonable steps” which an authority will be expected to take in preventing and relieving homelessness.
Eleri is currently undertaking pupillage in our Housing and Community Care and Immigration teams, having formerly handled specialist debt and housing cases at a prominent homelessness and housing charity and a social welfare legal firm. She will be available to accept instruction from 12 April 2018.
* Unless otherwise stated, references to sections are to the Housing Act 1996 as they will be when the 2017 Act is in force.
Given Royal Assent on 27 April 2017, the Homelessness Reduction Act 2017 introduces several significant changes to the statutory regime for assisting those in housing need under Part VII Housing Act 1996.[i] In particular, the new legislative framework establishes a multi-staged process for preventing and relieving homelessness in a bid to capture and assist those applicants falling through the gaps in the current regime.
What’s changed?
Broadly, the legislation redefines some of the existing duties under Part VII and introduces additional obligations on an authority to prevent and relieve homelessness for all applicants who are eligible for assistance and homeless or threatened with homelessness. It is largely modelled on the framework introduced in Wales by Part II Housing (Wales) Act 2014, though some important distinctions remain.
Some key changes brought about by the legislation are:
1. “Threatened with homelessness” is redefined to encompass all those likely to be made homeless within 56 days (not 28 as present), or those served with a valid notice under s.21 Housing Act 1988 (expiring within 56 days) in respect of the only accommodation available for them (S.175(4)-(5)). The requirement that an applicant be in priority need for a prevention duty to arise is also removed (s.195).
2. A new duty is created to assess and create personalised housing plans for all applicants who are eligible for assistance and homeless or threatened with homelessness, regardless of whether they are priority need or intentionally homeless – “assessment duty” (S.189A).
3. An additional “relief duty” to help to secure suitable accommodation for applicants who are homeless and eligible for assistance (unless the case is referred to another local authority) (S.189B),
4. Additional statutory rights of review and appeal are created against decisions as to whether a prevention duty or relief duty is owed, the (reasonable) steps to be taken in accordance with those duties, or bringing those duties to an end; and the suitability of any final (including part VI) offer accommodation made in pursuance of those duties (s.202(1)).
5. The act introduces an option for an authority to serve notice to end the prevention or relief duty, and if so to deprive an otherwise eligible applicant of the full s.193 housing duty, if they ‘deliberately and unreasonably’ fail to cooperate. This is also accompanied by a statutory right of review and appeal (s.193B-s.193C, s,202(1)(bb).
What does this mean for applicants?
1. Threatened with homelessness
The extension to 56 days engages an authority’s duty to assist those threatened with homeless much earlier than under the current regime. This facilitates more time to investigate and address the underlying causes of homelessness, including possible identification of unmet support needs, before an applicant reaches the critical point of actually becoming homeless. This may also preserve options which become less achievable at later stages of proceedings like demonstrating a change in behavior or establishing a pattern of compliance with any agreements made between a tenant and their current housing provider. Likewise, early help to mediate a deteriorating relationship may serve the tenant well in addressing the common imbalance of power in negotiating a resolution with their landlord.
The addition of those served with a valid s.21 notice seeking possession is particularly significant. This is not provided for in the Welsh legislation and research on the equivalent prevention duty in Wales showed that many authorities continued to require that a tenant wait until an order for the court is obtained, or even executed, before practical help becomes available.[ii] This is clearly against the spirit of the legislation and the new section 175(5) makes Parliament’s intention clear – providing assistance to a tenant served with such a notice should not wait until the time for repossession action has begun, or indeed concluded (when attempts to prevent homelessness will often be futile). Whether a tenant will then be considered “homeless” after the expiry of the notice and for the purposes of engaging the relief duty will likely still cause dispute, and an authority will still need to consider in the circumstances whether it would be reasonable for a tenant to continue to occupy the accommodation and await a possession order (or eviction date).
The prevention Duty – to those threatened with homelessness – S.195
The Act removes the limitation that those owed a prevention duty be in priority need and unintentionally homeless, instead placing an obligation on the authority to take ‘reasonable steps’ to help all applicants eligible for assistance and threatened with homelessness secure that accommodation does not cease to be available for their occupation.[iii] This will involve either helping the applicant remain in their current accommodation or help secure alternative accommodation before their homelessness materialises. The appropriate course of action will of course be fact specific and must have regard to the assessment carried out under s.189A. However, in some circumstances accommodation will be simply unsustainable and appropriate support to rehouse an applicant should therefore take place before homelessness arises.
The duty will end where the applicant becomes homeless or 56 days has passed since the duty was accepted and the authority has taken the pre-agreed reasonable steps set out in s.189A assessment, regardless of whether the applicant is still threatened with homelessness. An exception applies for those applicants who were served with a valid s.21 notice which is still expiring within 56 days. They will remain threatened with homelessness and the prevention duty cannot end simply because the 56 days prevention period has elapsed, and the reasonable steps have been unsuccessfully taken. Alternatively, the duty may end in the prescribed circumstances discussed below.
2. New duties
The introduction of new duties means that for those who are eligible for assistance and either homeless or threatened with homelessness, an application will typically follow the below course:
Stage 1.
Duty to assess and develop personalised housing plan: applicable to all those eligible for assistance and homeless or threatened with homelessness and engaged from the initial presentation: (s.189A). This assessment, will play an important role in how the authority’s duties are carried out throughout the application process and must be reviewed throughout the application stages.
Stage 2.
Duty to prevent homelessness: applicable to those eligible for assistance and threatened with homelessness (for up to 56 days unless the exception relating to those served with a valid s.21 notice applies or ended sooner in prescribed circumstances). If the applicant is already homeless, this duty will not apply but the relief duty will be engaged immediately (S.195).
Stage 3.
Duty to help to secure accommodation (“the relief duty”): applicable to all those eligible for assistance and homeless (lasting up to 56 days unless ended sooner in prescribed circumstances). It will generally apply where the applicant is already homeless when presenting at the local housing authority, or attempts to prevent their homelessness have been unsuccessful (S.189B).
Stage 4.
Duty to secure accommodation (“full housing duty”, s.193(1)): applies to those who are eligible for assistance, unintentionally homeless, and have priority need where the duty to relieve homelessness has not been successful or the authority’s duty has been otherwise discharged in a way which also ends their full housing duty.
The duty to provide interim accommodation for those for whom the authority has reason to believe are eligible for assistance, homeless, and in priority need remains, albeit subject to minor changes.
The assessment duty – S.189A
An authority will have to carry out an assessment in respect of anyone whom they are satisfied is homeless or threatened with homelessness and eligible for assistance. The assessment must consider the reasons for the applicant’s homelessness or threatened homelessness, also identifying their housing needs (including what accommodation would be suitable for them and any persons with whom they reside or might reasonably be expected to reside with) and any necessary support needed to retain suitable accommodation.[iv]
An authority must then notify the applicant of the outcome and try to agree a personalised housing plan (and if so, to record in writing). [v] The plan must identify any steps to be taken by both the authority and the applicant to secure or retain suitable accommodation, a template for which can be found in the Welsh Code of Guidance.[vi] It is recognised that reaching an agreement might not always be possible, and in those circumstances, a record must be made of why a plan cannot be agreed, what steps the authority will take regardless, and what steps the authority considers it would be reasonable to require the applicant to take. It is important that any disagreements about this are aired at this stage or as soon as possible thereafter.
The relief duty – ‘help to secure’ (S.189B)
This duty will be triggered only when an applicant becomes homeless, but before a full housing duty can be accepted.[vii] It requires the Authority (unless the case is referred to another local authority) to take ‘reasonable steps’ to help the applicant secure suitable accommodation which they can occupy for at least 6 months (or, if the secretary of state prescribed, up to 12 months), again having regard to the assessment carried out under s.189A above. Whilst the duty will again apply regardless of whether the applicant is in priority need or intentionally homeless, those factors may affect how this duty ends. Alternatively, an authority can refer an applicant to another authority after the s.189A assessment has taken place whereby the accepting authority will then carry out the remaining duties and enquiries.
For applicants who have a priority need and are not intentionally homeless, the relief duty ends after 56 days from when it was accepted, and the full housing duty under s.193 will commence. For others, the relief duty will end 56 days after being accepted regardless of whether the applicant has secured accommodation. For those not owed the full housing duty (i.e. those not in priority need or intentionally homeless), the additional assistance of the new act effectively ends. In either case, the duty may end if any of the prescribed circumstances (discussed later) apply.
The reality of ‘reasonable steps’
The interpretation of ‘reasonable steps’ is crucial to the success of the legislation, particularly for those not owed the final housing duty. An authority’s entitlement to discharge their duty may indeed turn on whether, and if so to what extent, it is taken to have complied with reasonable steps agreed.
There is no statutory definition of a ‘reasonable step’. Invariably, it will be fact specific and the draft Code of Guidance (as presently proposed) rightly advises that steps must be both tailored, showing “genuine personalisation in response to the wide range of circumstances and needs experienced by applicants” (at 11.19). Consideration will need to be had to the Equality Act 2010 and any adjustment necessary to take account of difficulties which any protected characteristic requires. Most importantly, all personal housing plans will need to be realistic and the steps achievable. Revisiting the initial assessment and reviewing steps as an application progresses is also required and indeed essential for the duty to be effectively implemented. An obvious example is when an applicant initially threatened with homelessness later becomes homeless, where steps such as negotiating with the applicant’s existing landlord, become irrelevant post-eviction.
Whilst there is yet to be any judicial guidance on this issue, research into the practical impact of equivalent reasonable steps provisions in Wales showed wide variation in the approaches taken by authorities. For example, the reasonable steps taken to assist some applicants were limited to simply providing lists of private landlords which were in fact out of date, whereas others arranged mediation with landlords and family members, assisted with accommodation searches, referred to welfare teams for income maximisation support and helping resolve issues with the applicant’s benefits.[viii] There is significant scope for innovation by authorities in how they address individual needs, including use of specialist and partnership services where appropriate, provided such opportunities are taken. However, it is essential that authorities do not fall into the trap of providing generic or blanket plans which prove irrelevant and/or ineffective. An applicant wishing to challenge a decision of the authority on the steps they will take under the prevention or relief duty can do so by exercising statutory rights to review or appeal. [ix]
4. Ending the duties
In addition to those explained above, the prevention or relief duty can also be ended in other limited circumstances prescribed in the act, namely where the authority is satisfied that the applicant:
· has accepted or refused an offer of suitable accommodation for which there was a reasonable prospect of them having for at least 6 months;
· has become homeless intentionally from any accommodation that has been made available to the applicant by the authority exercising its prevention or relief duty;
· is no longer eligible for assistance or has withdrawn their homelessness application;
· refuses an offer of final accommodation (including a Part 6 offer) having been informed of the consequences of refusal and right to request a review of the suitability of that accommodation . Discharging the prevention duty for this reason won’t affect the remaining duties owed to the applicant but if the relief duty is discharged for this reason, the s.193 will not apply. A decision as to the suitability of the accommodation for these purposes is also subject to a statutory right to review and appeal;
· has deliberately and unreasonably refuse to cooperate.
‘Deliberate and unreasonable’ refusal to cooperate
After a relevant warning has been given and reasonable period elapsed (to enable any rectification necessary) an authority may give written notice to end a prevention or relief duty to any applicant who it considers has ‘deliberately and unreasonably refused to cooperate’. This may apply where an applicant fails to take any of the steps that they agreed to take in the s.189A personal housing plan, or if agreement was not reached, the steps which the housing authority recorded as steps it considered it would be reasonable for the applicant to take.
This decision can be challenged, but the best position for an applicant is not to find themselves with such a decision at all which enhances the need for personal housing plans and agreed steps to be both realistic and appropriate both when first made and when reviewed throughout the course of the application. Applicants and those advising them should ensure that any limitations on their ability to carry out steps in the application process are identified as soon as possible and communicated to the authority at the earliest opportunity. Illnesses, mental health conditions, work or caring responsibilities may be particularly relevant in setting realistic expectations, but other matters might also arise.
There is also always a risk that an applicant, amidst the trauma of impending homelessness, agrees to take steps which they cannot practically achieve, particularly before seeking advice. Once such a scenario becomes apparent, it should be rectified immediately by discussion with the authority. In England, the non-co-operation must be both deliberation and unreasonable, whereas in Wales, the failure to co-operate must be unreasonable, but needn’t be deliberate. [x] Therefore, if an applicant does not understand what is required of them, or cannot comply with steps expected of them, this should also be explained to the authority as soon as possible, and a review of the personal housing plan should take place. Alternatively, a relevant change in the applicant’s circumstances should be discussed. A deterioration in an applicant’s physical or mental health which impacts on their ability to continue engagement with services, view accommodation or manage their affairs is one such example.
Conclusions
Whilst no date for implementation has yet been set, the new framework undoubtedly encourages a culture for co-operation and people-centered approach to helping those in housing need. Much will depend on the extent to which authorities and individuals pro-actively engage with the personal housing plans and the interpretation of concepts such as “reasonable steps” and “deliberate and unreasonable failure to co-operate”.
Finally, the procedure for challenging a refusal to provide interim accommodation pending an initial or review decision in England is unaffected by the new Act and therefore challenging such a decision against an English authority remains a claim for judicial review. This may be a missed opportunity to bring decisions relating to interim accommodation in England within the remit of the County Court as in Wales, where such decisions attract a right of review and appeal to the County Court. Public funding is of course notably easier for an applicant to obtain in those matters than in one for judicial review.
[i] as amended by Homelessness Act 2002 and Localism Act 2011
[ii] Shelter Cymru Report: ‘Reasonable steps: experiences of homelessness services under the Housing (Wales) Act 2014’: (2016) 21
[iii] S.195(1)-(2)
[iv] S.189A(2)
[v] A.189A(4)
[vi] Welsh Government Homelessness Code of Guidance 2016, Annex 17.
[vii] S189B(1)(a), S.193(1)(c)
[viii] Shelter Cymru Report: ‘Reasonable steps: experiences of homelessness services under the Housing (Wales) Act 2014’: (2016)
[ix] S.202 (1)(ba)(i), (1)(bc)(i)
[x] Housing (Wales) Act 2014 s.79(5).