Homelessness under the Localism Act 2011

The Localism Act 2011 amends Part 7 of the Housing Act 1996 (the section that deals with homelessness).

Background

Currently, where an applicant satisfies certain conditions, the local authority must “secure that accommodation is available for occupation” by the applicant (s193). Those conditions are:

1. The applicant must be “eligible” for assistance in terms of their immigration and residence status.

2. They must be homeless or “threatened with homelessness”. An applicant will be homeless if they have no accommodation that is reasonable for them to occupy. An applicant will be “threatened with homelessness” where they will be homeless within 21 days.

3. The applicant must have a “priority need” for accommodation. This means that they must have a particularly vulnerability, such as having dependent children or are vulnerable due to their health.

4. The applicant must not have made themselves homeless intentionally. This is where the applicant has caused their own homelessness, eg by not paying their rent and then getting evicted due to rent arrears.

5. The applicant must have a local connection to the authority they are applying to. If they have a local connection to another area then, provided certain conditions are met, they can be referred on to that area for assistance instead.

The local authority’s duties currently come to an end if the applicant refuses an offer of suitable accommodation, so long as the applicant has been informed of the possible consequences of a refusal.

Discharge by offer of private accommodation

Local authorities will, once the relevant sections of the Localism Act come into force, be able to discharge their duties by offering accommodation in the private sector.

Under the Housing Act 1996 as it stands, certain rules apply to “restricted cases”. “Restricted cases” are where an applicant would only satisfy the criteria to qualify for assistance under s193 if the local authority has regard to someone in the applicant’s household who is a “restricted person” because they are subject to immigration control. The local authority ceases to be under a duty to the applicant in a “restricted case” where the applicant accepts an offer of private accommodation or refuses such an offer. Under the Localism Act, this provision will now apply to all applicants and not just “restricted cases”.

Currently it is open to an applicant to refuse an offer of private rented accommodation unless they are a “restricted case” but this provision shall be removed. Therefore, it will be permissible in all cases for the local authority to discharge its duties by providing accommodation in the private sector. This fails to take into account particularly vulnerable applicants who struggle to manage a private sector tenancy.

There are certain requirements that must be fulfilled in order for the local authority to make an offer of private accommodation. Firstly, the local authority must provide written advice of the consequences of the acceptance and refusal of the offer and of the applicant’s right of appeal. Secondly, the local authority must also advise the applicant as to the consequences of a further application within two years. Thirdly, the landlord must offer an assured shorthold tenancy with a term of not less than 12 months and the offer must be made under an agreement with the local authority.

The local authority will therefore have to enter into arrangements with private landlords and ensure affordable accommodation can be provided. This is likely to involve a lot of work on the part of the local authority to set up these arrangements. With caps in housing benefit being brought in, finding affordable accommodation in the private sector is going to be increasingly difficult.

The local authority also ceases to be subject to the duties under s193 if the applicant ceases to be eligible for assistance, becomes homeless intentionally from the accommodation provided, accepts an offer of Council accommodation, accepts an offer of an assured tenancy from a private landlord, or otherwise voluntarily leaves the accommodation provided. These provisions are to remain unchanged.

Pursuant to s202 of the Housing Act 1996, an applicant can request a review of the suitability of an offer of accommodation within 21 days of the offer or 21 days from the date the accommodation becomes unsuitable. If the review is unsuccessful, the applicant may be able to bring an appeal in the County Court on a point of law, pursuant to s204 of the Housing Act 1996. If successful in the request for a review or on appeal, another offer must be made.

When considering suitability of accommodation, local authorities are allowed to take into account the local circumstances in the area. They must, however, they must take into account the applicant’s personal circumstances and must consider how location will affect employment, education and healthcare for the applicant and their family. The accommodation must also be affordable for the applicant.

Recently, Newham Council have come under criticism as they have been arranging to accommodate homelessness applicants in receipt of benefits as far away as Stoke-on-Trent. Newham has argued that it cannot afford to accommodate homelessness applicants within the area in private accommodate due to the rise in rents and the housing benefit caps. If Councils are allowed to discharge their duties to all applicants by arranging accommodation within the private sector, this kind of out-of-borough placement, particularly in London where rents are high, is likely to become more commonplace and applicants are going to have to show extremely strong ties to an area to argue that they must be accommodated there.

One difficulty that could occur is where an applicant requests a review of the suitability of accommodation offered (on grounds other than it is a private sector accommodation). Will a private landlord be willing to enter into an agreement where potentially a few weeks into the tenancy the local authority could decide, or a Court could find, that the accommodation is not in fact suitable and the applicant should be offered alternative accommodation?

Further, the duty to provide suitable accommodation is a continuing one and the local authority must consider any changes in the applicant’s circumstances. Accommodation that is suitable when offered may not be suitable in a few months’ time. If the applicant is tied into a 12 month contract with a private landlord then this could cause practical problems for the applicant, the landlord and the local authority.

Re-applications within two years

Another new provision will be brought in to the effect that if an applicant accepts an offer of private rented accommodation following a homelessness application and then re-applies for accommodation or assistance within 2 years then, so long as they are homeless, eligible for assistance and not homeless intentionally, the local authority will be under a duty to secure further accommodation regardless of whether the applicant has a priority need. This accommodation can again be in the private sector. This provision is helpful, for example, where an applicant initially applies when they have a priority need based on dependent children but those children move out or are adults when the applicant reapplies. However, this could result in a kind of revolving door for applicants and does not ensure settled accommodation.

Further, if an applicant applies to one local authority, eg Southwark, is accepted a duty and provided accommodation, and then within two years becomes homeless again and makes an application to another authority, eg Hackney, Hackney would be able to refer the applicant straight back to Southwark. The only exception is where the applicant or their family would be at risk of domestic violence within Southwark. This means that even if at the time that the applicant applies to Hackney they have a much greater connection to that area, they can still be referred back to Southwark.

Local connection can be determined by a number of different factors including residence in an area, employment or family circumstances. If the applicant has been living in Southwark but working in Hackney and all their family connections and support network are in Hackney it may be much better for that applicant to be housed in Hackney.

Re-definition of “homelessness” and “threatened with homelessness”

One potentially positive change is that an applicant will be considered homeless from the date of expiry of a valid s21 Notice. They will be considered as threatened with homelessness as soon as that notice is served. These are useful provisions. Currently, applicants in private accommodation are left in a difficult position as they are currently not considered as even threatened with homelessness until their landlord has obtained a warrant of eviction and they are actually due to be evicted within 21 days. This means that they may have to wait for their landlord to take possession proceedings and are likely to be ordered to pay their landlord’s legal costs of those proceedings. Further, those proceedings are stressful for both sides.

Concluding thoughts

It seems that most of the changes brought in by the Localism Act strengthen the view that an application for homelessness assistance should be a last resort that will not lead to an offer of permanent accommodation.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*