DDPO Legal Network Recent issues in housing, homelessness and allocations Diane Astin Deighton Pierce Glynn Solicitors

Building affordable homes New ‘affordable’ homes completed in England – year ending March 2017 = 27,792 (Affordable rent means up to 80% of market rent) Social rents: 510

The need for affordable homes Barker Report in 2004 said 17,000 a year needed for 10 years Did not happen Households on council waiting lists in England, year ending 2016: 1.18 million Lower than previously because council’s can include only those in housing need

Law on Homelessness and the Allocation of Social Housing Housing Act 1996 Part 7: homelessness – duty to accommodate but not to provide a long-term home Part 6: allocations – rules all local housing authorities must follow in operating their Allocation Schemes

Homelessness tests Homeless Eligible In priority need Not intentionally homeless If authority satisfied of above, housing duty owed But may consider local connection and refer elsewhere

Homelessness process How to apply? Should be easy – reason to believe may be homeless and eligible – should trigger duty to investigate If also reason to believe may be in priority need, must provide interim accommodation pending a decision Expensive/difficult – so: GATEKEEPING

GATEKEEPING Lots of ways of trying to prevent people making homeless applications “Homeless Options/Prevention” – arranging for private sector accommodation/find your own and we’ll help with a deposit/you’ll be found intentionally homeless/you can’t apply here, you have no local connection/get a notice/come back when you’re actually evicted/

INTERIM ACCOMMODATION PENDING INQUIRIES Must be suitable and available for applicant and members of family who normally reside with the applicant, or other people who might reasonably be expected to reside with them. Would include family member/carer

Finding suitable interim accommodation – the law When does a person become homeless/when does local authority have to provide interim accommodation? Law/Guidance: if not reasonable to continue to live in accommodation until eviction – should be considered homeless If ‘threatened with homelessness’ LA should take action to find suitable interim accommodation

Finding suitable interim accommodation – the practice Most authorities refuse to take any action in advance: “come and present on the day you are evicted” Limited opportunity to find anything suitable Difficult to challenge because of urgency/short notice Courts sympathetic to arguments that it’s very difficult for local authorities – standards of suitability for urgent cases = low

Reasonable adjustments? Make local authority aware early of need for particular type of interim accommodation, e.g. accessible/in area near to care and support Request local authority take early steps to identify suitable interim accommodation Ask for reasons if refuse

Challenging housing authorities’ policies – procuring suitable accommodation Can be hard to challenge authorities saying – we just don’t have the stock But Nzolameso: About accommodating a family 50 miles from area (Westminster) Hale: local authorities should have policies about procuring accommodation to comply with legal duties (here mostly about children)

HOMELESSNESS A person is homeless if no accommodation entitled/permitted to live in, but also if not reasonable to continue to occupy If violence is probable if remain in occupation = not reasonable so person is homeless If not reasonable for other reasons local authority can consider local housing conditions

NOT REASONABLE TO CONTINUE TO OCCUPY Code of Guidance says following factors relevant: Affordability Physical characteristics Type of accommodation People fleeing harassment Fact that notice to leave been given

NOT REASONABLE TO CONTINUE TO OCCUPY Local authority can have regard to “general circumstances prevailing” in relation to housing in its district So if large numbers of people in housing need, harder to argue Also, may be better to apply for allocation – higher priority to reflect housing need

The following have priority need: a pregnant woman or a person with whom she resides or might reasonably be expected to reside; a person with whom dependent children reside or might reasonably be expected to reside; a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside; a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

Also have Priority Need since 2002: 16/17 year olds not owed duties by social services (under s.20 or as care leavers) NB G v Southwark – primary responsibility is social services 18-20 year olds - in care for any period between 16 and 18 If vulnerable: Care leavers over age of 21 People who have been in armed forces People who have been in prison/custody People fleeing violence  

Vulnerability A person is not in necessarily in priority need because of old age, mental illness or handicap or physical disability or other special reason. The person must be “vulnerable” as a result of one or more of those factors, or other special reason. A person with whom such a person resides or might reasonably be expected to reside also has a priority need.

Hotak, Johnson and Kanu The Supreme Court considered: Do you need a comparator and if so, is it the ordinary homeless person or the ordinary person who becomes homeless? Can the local authority take account of support that the person may received from family in assessing vulnerability? What role does the PSED play?

Hotak, Johnson and Kanu The Supreme Court decided: Vulnerability must be assessed by comparing with an ordinary person if made homeless. It means being significantly more vulnerable than the ordinarily vulnerable when homeless The local authority can take account of support provided it is consistent and predictable The PSED is ‘complementary’ to the process of assessing vulnerability under the Housing Act

Hotak, Johnson and Kanu Lord Neuberger: “ … the equality duty … requires the reviewing officer to focus very sharply on whether the applicant is under a disability (or has another relevant protected characteristic), the extent of such disability, the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and whether the applicant is as a result "vulnerable".

Capacity and homeless applications R v Tower Hamlets ex parte Begum (1993): a person without capacity to understand the nature of an application or a tenancy cannot make an application for housing under Part 7. In R (MT) (by his litigation friend GT) v Oxford City Council (2015) the court applied Begum and held that deciding a person did not have capacity to make a Part 7 application or be a tenant not discrimination under Article 14 ECHR. NB. A person who cares for someone without capacity can apply if homeless and will be in priority need.

Intentional homelessness A person becomes homeless intentionally if s/he deliberately does or fails to do anything in consequence of which s/he ceases to occupy accommodation which is available for his/her occupation and which it would have been reasonable for him/her to continue to occupy: s.191(1).

Pieretti Court of Appeal held PSED applied when authority inquiring into and reviewing individual applications. Applicants had given enough information to suggest further inquiries into their disabilities was required. Court of Appeal upheld the appeal even though this had not been put forward at the review stage as a reason why the decision was flawed.

Using private sector offers Since the Localism Act 2011 local authorities have been able to bring their accommodation duty to an end by arranging for a “private rented sector offer” to be made by a private landlord This is a 12 month assured shorthold tenancy

Suitability – likely issues Use of private rented sector offer – only a 12 month fixed term agreement. Could mean no access to Disabled Facilities Grants Landlords often prohibit ‘fixtures’ which may be necessary to make the premises accessible Out of borough placements increasingly common – away from networks of support Nzolameso: challenge policy of procurement

Suitability – process issues Newham LBC v Khatun (2004) – Court of Appeal said local authorities not required to permit viewing of offer before signing up Now common that LAs send applicants to go to property, meet LL and agent and sign agreement prior to viewing.

Hackney v Haque “Judicial notice can be taken of the fact that housing authorities experience grave constraints in finding appropriately located suitable accommodation for those applicants demonstrating priority need, and that many of them deserve more favourable than purely average treatment by reason of vulnerabilities, including protected characteristics of a type which engage the PSED. The allocation of scarce resources among those in need of it calls for tough and, on occasion, heartbreaking decision-making, but having to say no to those deserving of sympathy by no means betokens a failure to comply with the PSED.”

Local connection A local authority should only consider this after deciding a housing duty is owed. Only if a person has no local connection with the authority they applied to can a referral be made No referral can be made if the person would suffer violence in the other area Local connection can be because of Normal residence Employment Family associations; or Special circumstance.

Challenging homelessness decisions Review of decisions – must request within 21 days Review should be completed within 8 weeks Review decision can be challenged by County Court Appeal “on a point of law” Appeal must be brought within 21 days Some decisions can only be challenged by judicial review – e.g. interim accommodation/failure to take an application

ALLOCATIONS New grants of social housing must be made through Local Authority Allocation Scheme Allocation Schemes must be operated in accordance with Housing Act 1996 Part 6 Does not apply to transfers unless it is at instigation of tenant and tenant qualifies for ‘reasonable preference’ 

‘Reasonable preference’ Allocation schemes must give reasonable preference to people who -   are homeless; owed homelessness duties occupying insanitary or overcrowded housing, or living in unsatisfactory housing conditions; need to move on medical or welfare grounds; and need to move to a particular locality, where failure to meet that need would cause hardship (to the applicant or to others).

Who can go on the waiting list? Local authorities decide who ‘qualifies’ to go on the Allocation Scheme But, some people are not ‘eligible’ – immigration status Localism Act 2011 gave more discretion to authorities to set own criteria Many authorities changed schemes so that if no ‘housing need’ can’t go on the list – numbers reduced

New criteria Many authorities drafted new Allocation Schemes following Localism Act, qualification/level of priority based on factors such as: local connection economic and financial criteria past conduct such as rent arrears or anti-social behaviour contributions to the community

Challenging allocation decisions Right to information about application to assess: how application is likely to be treated; whether likely to have preference under the scheme; whether likely that appropriate accommodation will be available; and, if so, timescale; and Facts taken into account (or likely to be taken into account) in considering whether to allocate accommodation to him/her.

Right to internal review of: a decision that a person is ineligible; a decision that a person is not a qualifying person; a decision about the facts of the person’s case taken into account in considering whether to allocate accommodation.

Challenging at court No County Court appeal, as for homelessness Only judicial review is available Ahmad - House of Lords said: “… it is for the local authority to provide an allocation scheme and the merits as to who, how and when priority should be afforded is a matter for the local authority. … A particular scheme cannot be castigated as irrational simply because it is not a familiar one to the court or is not considered to be the perfect solution to a difficult, if not impossible, question to resolve.”

But, recent challenges: Jakimaviciute v Hammersmith & Fulham (2014) Policy that excluded those housed as homeless was unlawful – excluded a whole class who should have reasonable preference R (HA) v Ealing LBC (2015) Local connection rule unlawful – discriminated against women fleeing violence

R (H and others) v Ealing (2017) Court of Appeal upheld local authority’s appeal against a finding that its policy was unlawful for allocating 20% of stock to working households and model tenants. Held that policy did not discriminate against women and disabled persons because given high priority for the other 80% of the stock. PSED challenge upheld but no relief as council already reviewing policy.