Andrew Arden QC and Justin Bates cautiously welcome the new Act, warning that it is merely a first step towards eliminating homelessness and is not without its weaknesses.
Homelessness is a stain on a civilised society. Without a safe and secure place to sleep, wash, eat and live, all other aspects of life are adversely affected. Indeed, so much of life is spent dealing with the consequences that come from being homeless, eg, in terms of health problems (mental or physical), the difficulties that arise in interacting with state agencies when one does not have a permanent address, and the struggle to find a job while also worrying about where one will be living next week or month, that it effectively becomes who the homeless person is – small wonder, then, that it is accepted as a ‘status’ for the purposes of article 14 of the European Convention on Human Rights.
The Homelessness Reduction Act (HRA) 2017 – in force for just a couple of weeks as we write – is therefore to be welcomed. The changes that it has introduced should mean that more people receive earlier assistance with their housing problems. It is not, however, a panacea. Aside from the obvious concerns around funding (to which we will return), much of the new law continues what has always been the essential flaw in homelessness legislation: relying on the judgement – belief, opinion, satisfaction – of local authorities (rather than the plain facts), which means, in practice, that it will continue to generate legal and practical challenges to its operation.
The genesis of the HRA 2017 was a 2015 inquiry by the Communities and Local Government Select Committee.1Homelessness. Third report of session 2016–17, HC 40, 18 August 2016.
There was much praise for the (then) new provisions in the Housing (Wales) Act 2014, which had introduced new duties to help to prevent an applicant from becoming homeless. During the inquiry, a member of the committee (Bob Blackman MP) introduced a private member’s bill that would go on to become the HRA 2017. The committee and the government both announced support for the bill. It received royal assent shortly before the 2017 general election.
In summary, the key provisions of the HRA 2017 are as follows:
(a) Section 1 makes two changes to assist persons who are threatened with homelessness. First, it extends the period of time during which a person is threatened with homelessness from 28 to 56 days; second, it introduces a deeming provision to the effect that a person is threatened with homelessness if they have been served with a valid notice under Housing Act (HA) 1988 s21, 2Ie, the most common method of recovering possession against a private sector tenant.
in respect of their only home,3The property must be an only or principal home to qualify as an assured shorthold tenancy: HA 1988 s1.
expiring within 56 days.4Clearly intended to stop the practice of some authorities of refusing to accept a homelessness application before a court has made a possession order.
See HA 1996 s175, as amended.
(b) Section 3 introduces a new assessment duty: if an applicant is eligible for assistance and homeless (or threatened with homelessness), the authority must assess their housing needs and consider what support it can provide to ensure that the applicant has or retains suitable accommodation. A written record (ideally agreed, if not, created by the authority) of the steps that each is expected to take must be produced. See HA 1996, added s189A.
(c) Section 4 creates a new duty owed to eligible applicants who are threatened with homelessness: the authority must take reasonable steps to help them secure that accommodation does not cease to be available for their occupation (having regard to the assessment carried out, above). See HA 1996, substituted s195.
(d) Section 5 introduces a new duty owed to eligible applicants who are homeless: the authority must take reasonable steps to help the applicant try to secure suitable accommodation (whether or not in priority need or intentionally homeless). See HA 1996, added s189B.
(e) Section 11 allows the secretary of state to issue codes of practice dealing with authorities’ functions relating to homelessness and its prevention, including provisions addressing training of staff and monitoring. See HA 1996, added s214A.
Save for applications made or reviews sought beforehand, these provisions came into force on 3 April 2018.5Homelessness Reduction Act 2017 (Commencement and Transitional and Savings Provisions) Regulations 2018 SI No 167.
From 1 October 2018, there is also a new referral duty: specified public authorities (eg, prisons, social services authorities, certain education and health service providers),6The full list can be found in Homelessness (Review Procedure etc) Regulations 2018 SI No 223 Part 4 and the Schedule.
which consider that a person in England in relation to whom it exercises any functions is or may be homeless or threatened with homelessness, must ask the person to agree to it notifying a local housing authority in England of its opinion and of how they may be contacted by the local housing authority.
The creation of new duties required new regulations providing for internal reviews and appeals. These can be found in the Homelessness (Review Procedure etc) Regulations 2018 SI No 223.7The previous regulations (Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 SI No 71) remain applicable for any request for a s202 review made prior to 3 April 2018.
While much of these regulations will be familiar to practitioners, there has been some renumbering so that the important ‘minded to’ procedure previously found in reg 8 is now to be found in reg 7.
Accompanying the new legislation is the 2018 code of guidance.8Homelessness code of guidance for local authorities, Ministry of Housing, Communities and Local Government, February 2018.
This is available online as both a series of webpages
and a PDF
. Although practitioners are likely to want to work from a single PDF document, the government considers that the webpages are the definitive version and does not guarantee to update the PDF.9See warning on page 1, ‘Version Control Sheet’ of the PDF version.
An express test of eligibility for assistance (ie, exclusion for certain categories of foreign national) has been a part of the scheme for homelessness assistance since 199310When introduced by the Asylum and Immigration Appeals Act 1993.
and it remains a prerequisite for support under the new HRA 2017 duties. Two points arise. First, this leaves out of the new provisions a substantial swathe of homeless people, including many eastern Europeans. Second, eligibility is a notoriously difficult topic involving examination of both domestic and EU law. Surprisingly, the English code of guidance no longer provides contact details for the immigration authorities or guidance about the assistance which they can provide: authorities which seek the assistance of the Home Office UK Visas and Immigration (UKVI) Centre will need to consult the Welsh code of guidance for contact details and information that the UKVI will require.11Code of guidance for local authorities on the allocation of accommodation and homelessness, WG28472, Welsh government, March 2016, annex 5.
It should also be noted that, although the government has stated that it intends to do so at annex 2,12Homelessness code of guidance for local authorities: government response to the consultation, Ministry of Housing, Communities and Local Government, February 2018, page 6, paras 2–3.
the code does not yet include the new local authority agreement on local connection referrals, which must therefore be obtained from the Local Government Association. Nor has any code of practice yet been produced under HA 1996 Act s214A to ensure that local authority officers are properly trained (and monitored) in respect of functions under Part 7 of that Act.
There also appears to be a drafting error in respect of s202 reviews in relation to a decision to refer the initial help duty. Section 202(1), as amended by the HRA 2017, does not specify a decision that no further duty is owed under s199A (ie, because of referral of the initial help duty) as one of those of which a review may be sought.13In contrast, it does so when the local connection referral is under HA 1996 s198(1): see s202(1)(e).
Finally, the referral duty which will come into force in October 2018 appears to have been intended to mean that an application is being made to the authority to which the individual is referred; the duty to make enquiries under HA 1996 s184 does not, however, arise on its face unless the referral, in whatever terms, asserts that it is an application.
During 2017, the London Borough of Southwark ran a pilot scheme (the Trailblazer Pilot) to model the likely effect of the HRA 2017 once it came into force. By focusing on prevention and early intervention, some 358 households who were at risk of becoming homeless were found alternative private sector accommodation without the need for a full application. The intervention did, however, come at a significant financial cost: the government provided £1m of funding for the pilot project, but Southwark had to put up an additional £750,000, a level of investment which is not considered sustainable.14See Patrick Butler, ‘Who will foot the bill to prevent people becoming homeless?’, Guardian, 21 March 2018.
If the HRA 2017 is to make a meaningful difference then funding will have to be provided; as yet, the government has not indicated any intention to provide additional funds beyond the first two years of the operation of the Act.
More to do
Funding aside, there is much to welcome in the HRA 2017. Nonetheless, support for homeless people in England remains well behind Scotland, which has abolished priority need,15Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 SI No 330.
and Wales, which has laid the ground for phasing out intentional homelessness.16Housing (Wales) Act 2014 and Welsh code of guidance.
There is a very long way to go before we can say that everyone has a safe and secure place to call home.
Moreover, as mentioned above, the room for manoeuvre built into the legislation, which means that local authorities can only be challenged on relatively narrow public law grounds, rather than on the facts,17There is an overlap: see the review of when ‘misunderstanding or ignorance of an established and relevant fact’ can provide a basis for public law challenge in E v Secretary of State for the Home Department  EWCA Civ 49;  QB 1044.
reflects a gap between popular perception of homelessness law and legal reality. It is well passed time for parliament to afford applicants an independent review of the facts by a court or tribunal by removing the subjective qualification that rights depend on whether authorities have reason to believe, or are of an opinion or satisfied as to, relevant matters; likewise, it is to be regretted that one of the central planks of the HRA 2017 – the initial help duty owed to the homeless (and the corresponding duty owed to those threatened with homelessness) – is no more than a duty to take ‘reasonable steps’, a challenge to which will, itself, almost certainly be approached on a similarly limited, public law basis. There is a very long way to go before we can say that everyone has a safe and secure place to call home.
Andrew Arden QC and Justin Bates are authors, with Toby Vanhegan, of Homelessness and Allocations (11th edn, LAG, to be published in June 2018).