The Homelessness Reduction Act (HRA) 2017 came into force on 3 April 2018 (Homelessness Reduction Act 2017 (Commencement and Transitional and Savings Provisions) Regulations 2018 SI No 167 reg 3). Hailed by government as ‘the most ambitious legislative reform in decades’, parliament’s intention was that local housing authorities provide help to all who are homeless or threatened with homelessness, regardless of priority need.

Although the duty to secure accommodation is still limited to those with an actual or apparent priority need,1The new duties, however, do not apply to those who are not eligible for assistance under Housing Act 1996 s185(2). authorities must do more, at an earlier stage, to assist a wider range of applicants. The days when applicants without children were told that they would not be helped, or were sent away with a list of lettings agents, are – supposedly – long gone.2As Crisis had recorded in its mystery shopper exercise, where eight mystery shoppers, posing as single homeless people, had visited 16 local housing authorities: Sarah Dobie, Ben Sanders, Lígia Teixeira, Turned away: the treatment of single homeless people by local authority homelessness services in England (Crisis, October 2014).

As yet, there have been no reported cases dealing with the new duties, nor any judicial scrutiny.3We would be pleased to hear from practitioners involved in any pending cases. However, analysis of the government’s homelessness statistics for July–September 2018 and October–December 2018 reveals interesting details.4See Statutory homelessness, July to September (Q3) 2018: England, MHCLG, 24 May 2019 and Statutory homelessness, October to December (Q4) 2018: England, MHCLG, 24 May 2019. The statistics are ‘experimental’ in that they reflect a new approach, using new case level data. They are also not directly comparable with statistics for previous years, since the duties have changed. Caution should therefore be exercised in making comparisons.

It seems that the policy aim of trying to help all those who are homeless, or threatened with homelessness, has had some success. Local housing authorities decided in over 91 per cent of applications that the applicants were owed the prevention duty (HA 1996 s195(2)) or the relief duty (HA 1996 s189B(2)). Around 65 per cent of those were adults without children, who would not previously have been helped unless they had a priority need. Approximately 43 per cent were assessed as having support needs, so they would have found it difficult to secure their own accommodation without help.

The new duty on some public authorities to refer people who they consider may be homeless or threatened with homelessness (HA 1996 s213B) is having an effect. Between 1 October 2018 and 31 December 2018, 2,750 referrals were made, principally from Jobcentre Plus (18.9 per cent of the total) and the National Probation Service (15.6 per cent). An additional 1,880 referrals were made by public authorities not subject to the statutory duty. Whether this is due to confusion about which public bodies must refer, or because referrals are increasingly seen as good practice, is unclear.

Most interesting are the statistics around the outcome of the prevention or relief duties. Between October and December 2018, 58.7 per cent of people owed the prevention duty (17,950 applicants) were helped to secure accommodation, either staying in their existing homes (one-third) or finding new accommodation (two-thirds). Only 200 applicants (0.7 per cent of the total owed the duty) refused accommodation. Around 17.6 per cent of households owed the prevention duty became homeless.

In the same period, slightly fewer applicants owed the relief duty accepted accommodation (42.2 per cent, or 12,380 applicants); 360 applicants (1.2 per cent) refused offers. For 33.4 per cent (9,790) of applicants, the relief duty ended after 56 days with no accommodation secured. It is not known how many of those were subsequently accommodated.

One area of concern was the provision enabling local housing authorities to end the prevention and relief duties because the applicant had deliberately and unreasonably refused to cooperate (HA 1996 ss193B–193C). Use of this has been limited, affecting 230 applicants in the July–September period and 240 in the October–December period (around 0.4 per cent of the total). There is no information on the circumstances of any of those applicants, what it was they did or failed to do, or what happened to them afterwards.

Crisis’s The homelessness monitor: England 2019 (Suzanne Fitzpatrick et al, May 2019) offers an insight into local housing authorities’ views of the HRA 2017. Most thought the new duties provided for a more person-centred approach to managing homelessness: 65 per cent of authorities saw positive impacts for single people. Personal housing plans (PHPs) were said by some to be beneficial in assessing how to help each individual. Some local housing authorities thought it was hard to engage applicants in self-help: while this may be true, authorities should be focused on assessing how to assist, rather than blame, challenging applicants.

Whether or not the HRA 2017 is succeeding in reducing overall levels of homelessness is, however, unclear. The number of homeless people in temporary accommodation continues to rise. On 31 December 2018, 83,700 households, including 124,490 children, were in temporary accommodation, five per cent higher than 31 December 2017 and 74.3 per cent higher than the low of 48,010 on the same date in 2010.

These points come from our own practices and discussions with colleagues.

PHPs often seem sparse and rarely tailored to the applicant’s particular needs. The local housing authority’s steps in the PHP can be limited to signposting the applicant to other agencies. Sometimes, the steps recorded are vague (for example, requiring an applicant to take steps to ‘find accommodation’), while at other times, they are manifestly inappropriate for applicants of limited means (such as that the applicant consider shared ownership). That said, we have also seen an impressive example of a housing officer attending a suspension of a warrant hearing, and explaining to the judge the steps that would be taken and recorded in the PHP to allow the tenant to manage her arrears, thus persuading the judge to suspend the warrant.

Applicants can request a review of the steps that the local housing authority has decided to take (HA 1996 s202(1)(ba)(i) and (bc)(i)). Those reviews provide an opportunity for a more senior officer to consider the right sort of help required.

Advisers are often only consulted when the applicant receives a decision that a duty has come to an end. A review of the decision (HA 1996 s202(1)(ba)(ii)) may lead to the duty being revived. Moreover, in non-priority need cases, the local housing authority has a discretion to continue the relief duty beyond 56 days (HA 1996 s189B(4) and (5)).6The discretion does not apply where the applicant would be owed the HA 1996 s193(2) main housing duty (HA 1996 s189B(4)) because the applicant will be accommodated in any event. In addition, the local housing authority may only end the duty on this basis where it is ‘satisfied’ that it has ‘complied with the duty’ (HA 1996 ss189B(7)(b) and 195(8)(b)). If few steps have been taken, representations could be made that it has failed to comply and so cannot end the duty yet.

The duty to secure interim accommodation is most likely to be used when applicants might be owed the relief duty (because they may be homeless). The test is the familiar one: the duty arises where the local housing authority has ‘reason to believe’ that an applicant ‘may’ be homeless, ‘may’ be eligible for assistance and ‘may’ have a priority need (HA 1996 s188(1)). It remains the case that the threshold is ‘low’ (the Code, para 15.5). The HRA 2017 amendments have complicated the structure of HA 1996 s188, with the potential to cause confusion. However, the underlying point is that the threshold has not changed, so local housing authorities that refuse to secure interim accommodation for applicants because they might not have a priority need would be acting unlawfully.

When the interim accommodation duty ends, if the applicant has requested a review, then the local housing authority retains its previous Mohammed discretion to secure accommodation pending review (HA 1996 s188(3)). In one circumstance, the interim accommodation duty continues: where the HA 1996 s189B(2) relief duty has ended because the applicant has refused a final accommodation offer or a final Part 6 offer (HA 1996 ss189B(9) and 193A(2)) and has requested a review. If the applicant was occupying interim accommodation, the duty continues until the review decision has been notified (HA 1996 s188(2A); the Code, para 15.11). This is a significant difference between the old and new statutory regimes – the dispatch of a Mohammed letter is not applicable – and one that may be overlooked.

Although the prevention and relief duties do not contain any obligation to secure accommodation, there is a power to do so, at HA 1996 s205(3). This will primarily benefit applicants with no priority need (and not entitled to the interim accommodation duty). The Code contains guidance at paras 13.7 and 15.34–15.35 (page 114), including the suggestions that the power ‘provides more flexibility to pursue appropriate housing options for applicants’, that it might be used ‘to deliver accommodation services for groups that are at higher risk of homelessness’ and to consider rough sleepers.

Beyond this advice, there is, as yet, no further indication as to how this power should be exercised or which other ‘higher risk’ groups should be accommodated. It must be the case that it should only be exercised in unusual, rather than routine, circumstances, perhaps assisting rough sleepers with emergency accommodation. The authors have successfully persuaded a local housing authority to exercise the power where the applicant was eligible for assistance but his pregnant wife was not.7The argument being that, if the wife was eligible, there would have been no doubt that the local housing authority would have had to accommodate them. The only barrier to accommodation was her ineligibility, and so, in those circumstances, it was appropriate to exercise the power to accommodate. Although this power is, by its nature, discretionary, a local housing authority that refused to recognise its existence or contemplate its exercise would have erred in law.

Finally, as yet, there is no guidance beyond the Code as to how local housing authorities should decide whether an applicant has deliberately and unreasonably refused to cooperate. Judicial scrutiny, when it comes, will be of interest. On the one hand, this is an area of decision-making involving an evaluative judgement by the local housing authority, traditionally an area where the courts are reluctant to tread. On the other hand, decisions may concern issues of mental capacity or disability, giving rise to distinct legal obligations that may necessitate a more interventionist approach. How this balance will be struck remains to be seen.