Homelessness Law & Policy Lecture - Legal Test PDF

Homelessness Law & Policy: “Homeless” – the legal test Vivien Gambling Kent Law School, University of Kent 1  1) The context and legal framework 2) The definition (‘test’) – “threatened with homelessn...

Homelessness Law & Policy: “Homeless” – the legal test Vivien Gambling Kent Law School, University of Kent 1  1) The context and legal framework 2) The definition (‘test’) – “threatened with homelessness” and “homeless” 3) Homeless – drilling into the detail – 5 elements to consider Outline of 1. The meaning of ‘accommodation’ 2. ‘available for occupation’ today’s 3. ‘entitled to occupy’ 4. Can the applicant secure entry (or somewhere to site lecture a moveable home) 4) 5. Is there accommodation reasonable for the applicant to continue to occupy  Where the local authority has to decide whether reasonable…  Circumstances where it is deemed not reasonable to continue to occupy 2  Part 1. The broad legal framework Homelessness law – Part 7 Housing Act 1996  Incorporates changes made by Homelessness Reduction Act 2017  ‘Policy’ type provisions eg requirement for homelessness strategy & review  duties to individuals and procedures – see Diagram on Moodle (in Week 2) Homelessness Code of Guidance, supplements the HA 1996; helpful explanations Part 6 Housing Act 1996 – allocations (of local authority and housing association accommodation i.e. ‘social housing’) Other law which may apply to specific categories of people (fyi only)  Asylum support  Children Act 1989; Children (Leaving Care) Acts & regulations  Community care law – eg The Care Act 2014  Section 117 Mental Health Act 1983 (eg supported accommodation) 3  As soon as the local authority (LA) has reason to believe that someone who Procedur has made an application may be homeless or threatened with e - Duty homelessness, it has a duty to make to make inquiries as to whether the applicant is eligible for assistance & what inquiries further duty (if any) is owed (s.183 & 184(1) HA 1996) & notify It is a low threshold for the duty to be the triggered [R (Aweys) v Birmingham CC applicant (2007) EWHC52 Duty to notify the applicant of the of the decision and to give reasons for any decision decision which is adverse to the applicant’s interests (s.184) 4 Eligibility Some people are excluded from housing assistance (s.185 Housing Act 1996 & various regulations) – broadly dependent on immigration status: - “A person from abroad who is ineligible for housing assistance”. A person who is ‘subject to immigration control’ ie who needs leave to enter and remain in the UK, unless in a “prescribed class”. EU/EEA nationals are not automatically entitled; many are not. British people who are not ‘habitually resident’ in the UK 5 Local authority’s duties if applicant is eligible Abbreviations used in these slides: LA = local authority; App = applicant THREATENED WITH HOMELESSNESS HOMELESS Prevention Duty (for up to Relief duty (for up to 56 days); duty to take reasonable steps to help secure 56 days) = reasonable that suitable accommodation becomes available for App for at least 6 steps to help prevent App months… becoming homeless Duty to provide immediate [s.195(2)] accommodation? (s.188) – if App may be eligible, homeless & in priority need Housing needs assessment Housing needs assessment [s.189A] [s.189A] Personalised housing plan [s.189A(1)] If after 56 days, applicant is still Personalised housing plan homeless, LA has to consider if ‘main’ [s.189A(1)] housing duty applies (s.193) 6 7  Note – s.193(2) only arises, if at all, after the ‘relief’ duty The ‘full (See week 1, slides 25-28 and diagram on Moodle week 2 for an overview of duties) housing A housing authority (local authority) has a ‘full housing duty’ duty’ to secure that suitable accommodation is available for the applicant (only) if: - s.193(2) 1. The person is ELIGIBLE for housing assistance 2. The person is HOMELESS – the 4 3. The person has PRIORITY NEED elements 4. The person is NOT INTENTIONALLY HOMELESS If the person has no LOCAL CONNECTION, the local authority may be able to refer the person to another local authority. 8 s.175 HA 1996: Threatened with homelessness 175(4) A person is threatened with homelessness if it is likely that he will become homeless within 56 days. 175(5) A person is also threatened with homelessness if—  (a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person's occupation, and  (b) that notice will expire within 56 days. NB – Also see the Homelessness Code of Guidance chapter 6 – guidance on how to determine whether a person is homeless or threatened with homelessness 9 Statutory definition of HOMELESS sections 175 – 178 Housing Act 1996 A person is homeless if s/he 1. Has no accommodation available to occupy in the UK/elsewhere; or 2. Has no accommodation available which s/he is legally entitled to occupy; or 3. Has accommodation, entitled to occupy, but cannot secure entry; or 4. Has accommodation which is a moveable structure, but no place where s/he entitled or permitted to place and reside in it; or 5. Accommodation available; entitled to occupy and able to secure entry, but accommodation is not reasonable to continue to occupy 10 Not Homeless if… 1. There is accommodation; [Q1] and 2. It is ‘available’ for the applicant’s occupation [Q2];and 3. The applicant has some right to occupy it [Q3]; and 4. The applicant can physically enter it [Q4]; and 5. It would be reasonable for the applicant to continue to occupy it [Q5] 6. [if it is a moveable structure (eg mobile home or houseboat) the applicant has somewhere they are entitled to place it & reside in it] A common sense definition? 11 Section 175 Housing Act 1996 - Homelessness Section 175 Homelessness and threatened homelessness. (1)A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he— (a)is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, (b)has an express or implied licence to occupy, or (c)occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. (2)A person is also homeless if he has accommodation but— (a)he cannot secure entry to it, or (b)it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it. (3)A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. (4) & (5)..…(threatened homelessness) 12 Part 3 – drilling into detail of the ‘homeless’ test The meaning of “accommodation” – Q1  Not defined in the statute  Query ordinary meaning? shelter with a degree of permanence?  A ‘squalid’ single room in a B&B occupied by a husband, wife and 2 children was accommodation. [Puhlhofer 1986]  Change of law after Puhlhofer (1986) – added to the test the requirement of ‘reasonable to continue to occupy’ [section 175 (3)]  Crisis accommodation – women’s refuges, hostels.  Night shelter, with no daytime access, is not accommodation [Waveney]  A room in a hostel, temporary, where staff provided support, was accommodation – [Hodge v Folkestone & Hythe DC - 2023] 13  “Accommodation” – where do cases leave things? - Q1 In 2008, the court held that a women’s refuge was not reasonable to continue to occupy (indefinitely). [Ali & Others v Birmingham City Council, Moran v Manchester City Council.] The House of Lords said it did not need to decide whether women’s refuges could amount to accommodation, nor to decide whether other refuges, hostels and forms of shelter amount to accommodation. [paras 44-46,56] The decision in Ali & Moran may reduce pressure on local authorities to an extent – if not obliged to provide temporary housing immediately. Query - what impact does this have on women’s refuges and hostels? Code of Guidance para 21.42 – refers to refuges S.175(3) - “not reasonable to continue to occupy” becomes very important. 14 “Available for occupation” - Q2 Is the accommodation available (in the UK or elsewhere)?  Not just whether it exists – can the applicant get there? [Begum v Tower Hamlets LBC (2000) 32 HLR 445, CA]  Refugees? Accommodation in country of origin not likely to be available Is the accommodation available for the applicant and for the occupation of all members of the applicant’s household? – s.176  Those who normally reside with the applicant as a member of the applicant’s family [s.176 (a)] – not just the conventional ‘nuclear family’ – [R v Newham ex p Khan & Hussain]  Any person who might reasonably be expected to reside with the applicant: eg carer, child or other person in need of care from the applicant – [s.176(b)] 15  The meaning of “entitled to occupy” (1) –Q3 The applicant is homeless if there is no accommodation which s/he a) Is entitled to occupy by virtue of an interest in it or by virtue of an order of a court s.175(1)(a) – [ie applicant does not own a property, or have a tenancy, and no court order such as an occupation order.] b) Has an express or implied licence to occupy, or [licence to occupy includes eg permission from a friend to stay with them; and employees who live in accommodation in order to do their job.] (s.175(1)(b)) c) Occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession (s.175(1)(c) (e.g. s. 5 Housing Act 1988) 16  The meaning of ‘entitled to occupy’ (2) – Q3 – licence to occupy Licensee or trespasser? A licensee may be entitled to 4 weeks notice (s.5 Protection from Eviction Act 1977) [“PEA 1977”] Though s.5 PEA does not always apply. For example, if I let my friend stay in my house and I am living there too, the PEA 1977 does not apply. A licence can be ended on giving reasonable notice (verbally or in writing). However local authorities often (wrongly) insist that the applicant obtains a written notice. [See Code of Guidance chapter 6] 17  Occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession [S.175(1)(c)] - Q3 Applicant may have the right to remain in matrimonial home - matrimonial home rights under Family Law Act 1996 For most residential tenancies (including tenancies granted by local authorities, and assured & assured shorthold tenancies granted by housing associations or by private landlords), statutory provisions say that the landlord cannot recover possession except through obtaining a possession order from the court & the tenancy does not end until eviction. So if a notice has been served and possession proceedings have been issued, the tenant would not be automatically homeless. [see Code of Guidance paras 6.29 – 6.38] 18  Can the applicant secure entry to the accommodation? – Q4 An individual may be homeless if they have accommodation but, cannot get entry to it. This is a factual question. Examples: The landlord or co-owner has changed the locks Disaster of some sort (eg property cut off by floodwater) Applicant has returned home and finds that squatters have moved into their property 19 Part 4 – is the accommodation reasonable to continue to occupy? - Q5 The most important element of the definition of ‘homeless’ The same test comes into the definition of “intentionally homeless” and the case law is relevant to both. Baroness Hale: “the words ‘continue to occupy’ look to accommodation over time, and suggest an element of looking to the future. So that accommodation could be considered not reasonable to continue to occupy, even though the occupiers could get by in it for a little longer.” [Ali & others v Birmingham; Moran v Manchester City Council] 20 Factual (non-automatic) ‘not reasonable to continue to occupy’ (1) – court’s approach – Q5 Ali & others v Birmingham; Moran v Manchester City Council] (See Slide 20 also) – applicant was living in severely overcrowded housing  In applying the test, look to the foreseeable future  Accommodation may be unreasonable to occupy for a long period, but reasonable to occupy for a short period Nasibah Safi v Sandwell Borough Council  LA should ask two questions o Is it reasonable, looking to the foreseeable future as well as the present, for the applicant & family to continue to occupy current accommodation o If not, how long in the short term is it reasonable for them to continue to occupy current accommodation (& on the facts of this case, would they be able to obtain suitable accommodation through the ‘waiting list’ i.e. Part 6 HA 21 Factual (non-automatic) ‘not reasonable to continue to occupy’ (2) – court’s approach – Q5 R (Elkundi & others) v Birmingham CC & R(Imam) v Croydon NB. The main issue in Elkundi was not the homeless test & s.175(3) but whether the duty under s.193(2) (to secure suitable accommodation) is an immediate duty or a duty to do so within a reasonable period of time. However in paras 89-105 Lord Justice Lewis endeavours to explain Lady Hale’s judgment in Ali v Birmingham; Moran v Manchester; Para 105 – A person may be homeless within the meaning of s.175(3) even if it is reasonable for (him) to continue to occupy that accommodation in the short term if the LA are satisfied that it would not be reasonable … to continue to occupy that accommodation in the longer term. 22 Factual (non-automatic) ‘not reasonable to continue to occupy’ (3) – Q5 Code, para 6.23 There is no simple test of reasonableness. It is for the housing authority to make a judgment on the facts of each case, taking into account the circumstances of the applicant. Factors set out in Moran (in Court of Appeal) (NB not the full list)  Size, type & quality of accommodation – what about shared facilities?  Ability to afford it  Appropriateness in light of particular characteristics, including health  State of physical and emotional health of applicant while living there  Length of time applicant likely to occupy, if not accepted as homeless Rowe v Haringey LBC – no limitation on what may be relevant to the assessment In Hodge v Folkestone & Hythe DC, the court considered what is likely to have happened had the App stayed in temporary accommodation (a room in a hostel with some support from staff) and concluded that the LA was entitled to decide it would have been reasonable for the App to continue to occupy it. 23 Factual (non-automatic) ‘not reasonable to continue to occupy’ (4) -Q5 General housing circumstances – s.177(2) – in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district. – How far does this go? Code gives examples - condition of the property [6.26], & overcrowding [6.27]. Cases illustrate other factors lawfully taken into account:  demand for housing in the LA’s area [Noh v Hammersmith & Fulham LBC  the shortage of supply [R v Kensington & Chelsea RBC ex p Moncada  conflicts of lifestyle in multi-occupied homes [R v Brent LBC ex p Yusuf 1997] 24 Factual (non-automatic) ‘not reasonable to continue to occupy’ (5) – affordability? - Q5 Affordability: Code of Guidance, paras 6.28 & 17.48 – 17.49 Code of Guidance recommends that accommodation should not be regarded as affordable if the applicant would be left with a residual income insufficient to meet essential (basic) needs. Samuels v Birmingham City Council. Supreme Court (2019). o Gap between Ms Samuels’ income from state benefits and her expenditure o Failure to pay the rent which Ms Samuels said was unaffordable o Court held that Review officer was wrong to decide there was “sufficient flexibility” for Ms Samuels to afford to pay the shortfall; affordability should be assessed on the basis of the accommodation being available indefinitely We will look at this further in the context of “intentionally homeless”. 25  Factual (non-automatic) ‘not reasonable to continue to occupy’ (6) - notice to tenant? – Q5 Tenant given notice of intention [by a landlord] to recover possession Code [6.17 -6.19; 6.29-6.38] – LA should not consider that it is reasonable to continue to occupy up to the eviction by bailiffs. Code [6.33. 6.35] deals with assured shorthold tenant who has received a proper (valid) notice under s 21 Housing Act 1988; Factors –position of tenant, position of landlord; likelihood that landlord will proceed with possession claim; cost to the housing authority, burden on the courts. If the housing authority is satisfied that the landlord intends to seek possession & there would be no defence to an application for a possession order, then it is unlikely to be reasonable for the applicant to continue to occupy beyond the date given in the s 21 notice unless …[there are other factors] 26  Other factors relevant to reasonable to continue to occupy – Q5 Physical conditions General housing conditions in the area Overcrowding Relationship breakdown R v Kensington & Chelsea Royal LBC ex p Moncada – An ex husband was living in the former matrimonial home with his daughter, his ex-wife and her new boyfriend. The LA decided that the accommodation was reasonable for him to continue to occupy; the court said although it was undesirable for a divorced couple to have to live together, the LA was entitled to take into account the shortage of accommodation in its district. Types of accommodation eg women’s refuges Note the decision in Hodge v Folkestone & Hythe 27  Accommodation deemed unreasonable to continue to occupy (1) – violence or domestic abuse – Q5 Are the criteria met? If so the accommodation is (deemed) not reasonable to continue to occupy. The statutory provision: s.177 (1) Housing Act 1996 It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or domestic abuse against him, or against A person who normally resides with him as a member of his family, or Any other person who might reasonably be expected to reside with him. (1A) For this purpose a) “domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021 b) ‘violence’ means – i. Violence from another person; or ii. Threats of violence from another person which are likely to be carried out; 28 Deemed unreasonable (2) – violence/abuse – Q5 The meaning of ‘violence’? – both domestic violence and violence from others. The cases illustrate the progressive development of the law. Danesh v Kensington and Chelsea RLBC EWCA Civ 1404 Yemshaw v Hounslow London Borough Council UKSC 3 Hussain v Waltham Forest London Borough CouncilEWCA Civ14 LB v Tower Hamlets LBC EWCA Civ 439 We will consider Yemshaw in more detail in the 29 Deemed unreasonable (3) – violence/abuse – Q5 Code of Guidance 2021 – chapter 21  reflects the definition of domestic abuse in the Domestic Abuse Act 2021  Provides guidance to local authorities on carrying out an assessment of homelessness  Statistical evidence indicates that women are more likely to experience domestic abuse than men; though acknowledges anyone could be affected  refers to the Domestic Abuse Statutory Guidance Framework Local authorities can (and should) advise applicants of possible legal remedies, but in deciding whether the ‘deemed unreasonableness’ applies, the local authority cannot deny someone assistance for failing to use these legal remedies (eg applying for an injunction) - Bond v Leicester City Council EWCA Civ 1544 30 Deemed unreasonable (4) – violence – Q5 Section 1 Domestic Abuse Act 2021 S.1(3) behaviour is “abusive” if it consists of any of the following: - a) Physical or sexual abuse b) Violent or threatening behaviour c) Controlling or coercive behaviour d) Economic abuse (see subsection (4)) e) Psychological, emotional or other abuse and it does not matter whether the behaviour consists of a single incident or a course of conduct 31  Luba et al (in their text book) state: “Even when faced with what might seem to be compelling personal objections of the applicant towards Some continuing to occupy accommodation, the LA may be able to point to general housing conditions in its area to issues to demonstrate that it would be reasonable for the applicant to stay there.” think Is there a risk of inconsistency of decisions by different local authorities? about… How clear is the law (to applicants and others) on the issue whether someone is homeless? Could the notion of ‘home’ and ‘homeless’ change over time? Have there been any positive developments? 32  References Homelessness Code of Guidance for Local Authorities (DLUHC) R v Hillingdon LBC ex p Puhlhofer (1986) AC 484, HL R v Waveney District Council ex p Bowers (1983) QB 238; (1982) 3 All ER 727 Hodge v Folkestone and Hythe DC EWCA Civ 896 Ali & Others v Birmingham City Council, Moran v Manchester City Council (2009) UKHL 36; (2009) 1WLR 1506 Begum v Tower Hamlets LBC (1999) EWCA Civ 3051; (2000) WLR 306 R v Newham ex p Khan & Hussain (2000) EWHC Admin 334 Safi v Sandwell Borough Council EWCA Civ 2876 R (Elkundi & Others) v Birmingham CC & R (Imam) v LB Croydon EWCA Civ 601 Rowe v Haringey LBC EWCA Civ 1370 Noh v Hammersmith & Fulham LBC EWCA Civ 905 R v Kensington & Chelsea Royal Borough Council ex p Moncada 29 HLR 289 Terryann Samuels v Birmingham City Council UKSC 28 Danesh v Kensington and Chelsea RLBC EWCA Civ 1404 Yemshaw v Hounslow LBC UKSC 3 Hussain v Waltham Forest London Borough Council EWCA Civ14 Bond v Leicester City Council EWCA Civ 1544 LB v Tower Hamlets LBC EWCA Civ 439 33