Homelessness Law & Policy: Intentionally Homeless (LAWSS6460 2024-25 Lecture 4) PDF

Summary

This document is a lecture 4 outline about the concept of 'intentionally homeless' within Homelessness Law and Policy, as part of a broader subject called LAWSS6460. It includes an overview of different parts concerning the issue as well as recent cases and legal provisions.

Full Transcript

Homelessness Law & Policy: “Intentionally homeless” Vivien Gambling Kent Law School, University of Kent 1  Part 1 – Background and context for the test of ‘intentionally homeless’ (IH) [Slides 3 – 6] Part 2...

Homelessness Law & Policy: “Intentionally homeless” Vivien Gambling Kent Law School, University of Kent 1  Part 1 – Background and context for the test of ‘intentionally homeless’ (IH) [Slides 3 – 6] Part 2 – When IH matters for local authorities’ Outline duties [Slides 7-9] of Part 3 – The statutory definition of intentionally homeless today’s Part 4 – The six elements of the test [11 -24] lecture Part 5 – Recent cases on affordability of accommodation Part 6 – Reflecting on unaffordability, intentional homelessness and choices [26 – 28] 2 PART 1 - Background and context Situations where the issue arises Rent or mortgage arrears Unaffordable accommodation Possession proceedings – rent arrears or anti social behaviour Relationship breakdown / Exclusion by friends or relatives / rejection or disapproval (e.g. young people) Leaving home due to violence / abuse Moving from one area to another & change of accommodation, which may be for, e.g. medical reasons, or employment prospects Relevant parts of Code of Guidance [chapter 9, in particular paras 9.20 – 9.27; & guidance for specific groups in chapters 21-26] 3 The nature of the “intentionally homeless” test A controversial concept – contested cases What does the term convey ?  Blameworthy?  Stupid?  Off the scale (of normality)? Different treatment of the ‘intentionally homeless’ Examining behaviour after the event – benefit of hindsight? Applicant’s life and decisions – under scrutiny 4 Perceptions & “polarities” in relation to homelessness Feldman (2004): Polarities (opposites) are present in the (cultural) representations of people who are homeless as well as in people’s perceptions and in policy responses o Axis of Agency: Free (unconstrained) / unfree (constrained) o Axis of Valuation (morality): Profane (bad, blameworthy) / sacred (innocent, blameless) Responses to homelessness can be punitive or can be compassionate, and can treat people who are homeless as autonomous/free, or as unfree – but all approaches: “can reinforce the separation of the homeless population from a normative public of home-dwelling citizens” Is any of this reflected in the law? 5 Background / origins of the test Parliamentary debates (1976/ 1977) o See the article by Ian Loveland 1993 o “Scroungers” etc, “queue jumpers” o “Self-induced homelessness” What about the idea of a safety net? Homelessness Code of Guidance – para 9.3 o People should take responsibility for their own accommodation “No-one really becomes homeless….intentionally; the word is a convenient label to describe the result of acting or failing to act as described in the Act.” [Din v Wandsworth LBC (1983) 1 AC, 657] Tortuous/strained use of language?! PART 2 - When and why ‘intentionally homeless’ (IH) matters – the different stages If applicant is threatened with homelessness (not yet homeless)  Prevention duty applies [IH test not relevant] – s.195(2) HA 1996 If applicant is homeless or becomes homeless  If eligible and homeless, relief duty is owed for 56 days (IH test not relevant) – s.189B HA 1996  Duty to provide interim accommodation [s.188] – applies if Applicant may be eligible, homeless, and in priority need (IH not relevant) When relief duty ends after 56 days, full housing duty under s.193(2) applies if applicant is eligible, homeless, in priority need and not intentionally homeless 7 Application to LA for housing help Priority need matters from App eligible, threatened when an App eligible, HOMELESS application is with homelessness made - s.188 – duty to secure Prevention Duty Relief duty interim Plus assessment & Plan Plus assessment & plan accommodation if App may be eligible, homeless 8 weeks after initial application, prevention and relief & in priority need duties may be ended (if not already brought to an end (IH not relevant) sooner) App still HOMELESS, App still threatened with intentionally homeless App homeless but homelessness, no ongoing matters, as LA has to consider not in priority need – duty whether s.193(2) main housing no ongoing duty duty applies App homeless, in priority need but If App is eligible, homeless, in intentionally priority need and not homeless – intentionally homeless, s.190(2) – 193(2) duty to secure that accommodation for suitable accommodation is reasonable (limited) available period 8 Duty to make Inquiries Section 184 Housing Act 1996 Duty arises once the local authority has reason to believe the applicant may be homeless or threatened with homelessness Scope of inquiries o To decide what duties are owed o At the start, whether eligible, homeless (or threatened), priority need o Whether intentionally homeless, not necessary until end of relief duty Local authorities should not adopt ‘blanket’ policies [Code 9.6] 9 PART 3 - Statutory definition: ‘becoming homeless intentionally’ Section 191(1) Housing Act 1996 “a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy” Section 191(1A) – specific provision - ‘supported exempt accommodation’ Section 191(2): “an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate” NB The test is not whether HOMELESSNESS (the RESULT) is 10 deliberate, but whether a deliberate act or omission, led to PART 4 -Six elements of the test [omitting s.191(1A)] (1) Was there a deliberate act or omission (2) Was the deliberate act or omission by the applicant? (3) Was it as a consequence of that deliberate act or omission that the applicant ceased to occupy accommodation? (4) Is the deliberate act (or omission) & the cessation of occupation it caused, an operative cause of the present homelessness? [Hailie case] (5) Was the accommodation available for the applicant and persons with whom the applicant might reasonably be expected to reside? (6) Would it have been reasonable for the applicant to have continued to occupy the accommodation? IF YES TO ALL 6 QUESTIONS → INTENTIONALLY HOMELESS 11 Q(1) – Was there a deliberate act or omission? Deliberately means “after a consideration of all the relevant facts” [Devenport v Salford City Council (1983)] “an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate” s.191(2) HA 1996 In some decisions Judges have referred to the purpose of the Act o not to house those whose homelessness has been brought about by their own fault, o not to refuse housing to those who are homeless without fault on their part, where eg caused by disability, sickness, poverty, or inability to make ends meet. R v Wandsworth LBC ex p Hawthorne, Court of Appeal]. What if no realistic alternative [Adekunle v Islington LBC (2009)] 12 Q(1) Deliberate act/omission (cont’d) – unaware of relevant facts Unaware of a relevant fact – examples of court accepting ‘relevant facts’  R v Wandsworth ex p Rose (1983) – young woman gave up accommodation abroad in the mistaken belief her family would accommodate her  R v Hammersmith & Fulham LBC ex p Lusi (1991) - a businessman gave up his home in the UK to pursue a business venture expecting to be able to afford housing there; relevant facts had been kept from him Distinguish a matter of hope / closing one’s eyes to the obvious  Aw-Aden v Birmingham City Council (2006) – misplaced belief - job prospects  R v Westminster ex p Obeid (1996) – refers to purpose of the Act; future housing or employment prospects – can count as relevant facts if sufficiently specific  Trindade v London Borough of Hackney (2017) – there must be an active belief that a specific state of affairs would arise or continue, based on a genuine investigation 13 Q (1) Deliberate act or omission cont’d “Good faith” Lack of awareness – a subjective test Plus the applicant must have acted in ‘good faith’. Distinguish wilful ignorance or ‘shutting his eyes to the obvious’ o [O’Connor v Kensington & Chelsea RLBC (2004)] R v Westminster ex p N-Dormadingar (1997) sets out principles Foolish or imprudent behaviour is not enough to preclude good faith [Ugiagbe v Southwark (2009)] Examples in Code of Guidance, paras 9.26 Trindade v London Borough of Hackney (2017) – sets out principles 14 Question (2) - Was the deliberate act/omission by the applicant? Whether the applicant acted deliberately or failed to act? [Code 9.9 – 9.11 – Whose conduct…] If not, whether the applicant acquiesced in the deliberate act or omission of another person; ie did the applicant deliberately fail to prevent another person from acting or failing to act? o Egs: Failure to pay rent or withholding rent o re-mortgage leading to unmanageable debt Burden of proof? [Code 9.5] Local authority is entitled to assume acquiescence, unless there is an assertion or evidence to the contrary [R v Eastleigh BC ex p Beattie (No.2) (1984) 17 HLR 168] If the applicant asserts (or evidence suggests) that there was no 15 acquiescence, local authority must make full inquiries into the issue Q(3) Was it as a consequence of a deliberate act or omission that the applicant ceased to occupy accommodation? A question of causation o R v Camden ex p Aranda 30 HLR, 76 – husband ended the relationship Reasonable likelihood test o R v Hounslow LBC ex p R (1997) 29 HLR 929 o Chishimba v Kensington & Chelsea (2013) EWCA Civ 786 o Watchman v Ipswich Borough Council – EWCA Civ 348 -multiple causes Prisoners - Stewart v Lambeth LBC EWCA Civ 753 o was the criminal offence likely to lead to losing their accommodation o Court said “direct chain of causation” from offence to Mr Stewart’s eviction Q(3) (cont’d): Consequence / Causation Principles summarised (in the text book by Luba et al) – Identify the real or effective cause of homelessness; apply a practical common-sense approach Where there are a number of causes, the local authority will need to decide whether the applicant’s deliberate act or omission is a cause Where there is a sequence of events, ask whether it was reasonably likely that the act or omission would result in homelessness The causal chain will be broken by: - applicant acquires settled accommodation – approved in Din v Wandsworth; A supervening event, such that a previous event is no longer causative or effective; R v Harrow LBC Ex p Fahia (1997) 29 HLR 974 Q(3) cont’d: Breaking the causal link - getting a clean slate The effect of ‘settled accommodation’ – cleans the state – ‘expunges the record’ of intentional homelessness The concept of ‘settled accommodation’ was relevant when considering whether the chain of causation between the original intentionality and current homelessness has been broken. Hodge v Folkestone & Hythe DC What counts as settled accommodation? – probably a tenancy for 6 or 12 m  Doka v Southwark EWCA Civ 1532 – not settled, had to vacate room during academic holiday period Other events breaking the causal link  Relationship breakdown  R v Basingstoke & Deane DC ex p Bassett 10 HLR 125  R v Camden ex p Aranda 30 HLR, 76 Q(4) Is the deliberate act (or omission) an operative cause of homelessness? Is the deliberate act or omission & the cessation of occupation it caused an operative cause of the applicant’s present homelessness? Haile v Waltham Forest BC UKSC 34 – ‘I would have been homeless anyway’ – but this argument won’t always work! Chain of causation is broken  (a) where it can no longer reasonably be said that but for the applicant’s conduct he or she would not currently be homeless [Haile]; or  (b) where the proximate cause of the homelessness is an event unconnected to the applicant’s own earlier conduct, 19 and in the absence of which homelessness would probably Q(5) Was the accommodation available for the applicant? Same phrase arises in definition of ‘homeless’ s.175(1) & s. 176 Housing Act 1996 Available for occupation by: o The applicant o Any person who normally resided with the applicant as a member of his/her family o Any person who might reasonably be expected to reside with the applicant (at the time when the accommodation was lost) 20 Q(6) Reasonable to continue to occupy? Would it have been reasonable for the Applicant to continue to occupy the accommodation? Same / similar test as in definition of “homeless”; same cases are relevant Objective test – taking into account the individual and their circumstances It is not reasonable for someone to continue to occupy accommodation if it is probable that this will lead to violence or domestic abuse (i.e. deemed not reasonable to continue to occupy) - s.177(1) HA Someone can be intentionally homeless as a result of leaving temporary accommodation where it would have been reasonable to continue to occupy it - Hodge v Folkestone & Hythe DC – the issue was whether Applicant had had accommodation available & whether it would have been reasonable for her to continue to occupy the accommodation 21 Q(6) cont’d – Affordability - developments in social security (welfare benefits) policy Local housing allowance - Local Housing Allowance (LHA): Help with rent for private tenants - House of Commons Libra ry (parliament.uk)  the amount of housing benefit /allowance payable is capped according to a complex formula, now based on less than the average rent in the local area, which results in a gap between actual contractual rent and housing allowance Bedroom tax / spare room subsidy  If accommodation is bigger than needed eg tenant has 3 bedrooms but needs only 2, benefit is paid based on a 2 bedroom property Benefit cap – a maximum monthly cap, penalises larger families Universal Credit – administrative difficulties, monthly payments Benefit rates – very low, in theory “subsistence” ie bare essentials 22 Q(6)Reasonable to continue to occupy? (cont’d) Accommodation unaffordable? Affordability – The Homelessness (Suitability of accommodation) Order 1996 Paras 17.39 & 17.40 of previous version of the Code of Guidance – Affordability (current version of CoG – paras 17.48 & 17.49) Terryann Samuels v Birmingham City Council UKSC 28 o Gap between Ms Samuels income from state benefits and her expenditure o Failure to pay the rent which applicant said was unaffordable o Review officer said there was “sufficient flexibility” to pay the shortfall 23 o The relevant elements of the statutory test Q(6) cont’d – Affordability - the decision in Samuels Ms Samuels lawyers argued it was wrong to treat non housing-related welfare benefits as available to meet the rent shortfall Supreme Court decision – see in particular paras 32 – 37  The Order requires LA to take into account all sources of income including benefits; and compare this with reasonable living expenses  Review officer asked the wrong question  An objective assessment  Benefit levels are a good starting point for assessing reasonable expenses  “Affordability”– based on accommodation being available indefinitely 24 Part 5 - Recent developments – affordability Code of Guidance, paras 17.48 & 17.49 (relevant paragraph numbers have changed since Samuels) o Housing authorities ‘may be guided by universal credit standard allowances when assessing the income that an applicant requires to meet essential needs… Suleman Patel v London Borough of Hackney EWCA 897 Paley v LB Waltham Forest EWCA Civ 112 – see paras 71- 87 o LA had failed to take into account a benefit cap of £48 per week o LA had made no allowance for transport costs and judgment debts Baptie v Kingston upon Thames RLBC EWCA Civ 888 o Court of Appeal approved Patel (above) – what the applicant requires in order to provide as a minimum standard the basic essentials of life 25 PART 6 – Reflections on unaffordability, deliberate actions and choices Compare English law with Wales  Focus on advice, assistance and prevention  The Housing (Wales) Act 2014, Part 2  Local authorities can decide WHETHER to apply the IH test  S.75(3) provides for the full housing duty for certain categories irrespective of intentional homelessness (pregnant women, those with dependent children, under 21’s, former care leavers under 25) Compare English law with Scotland  Priority need test does not apply. From November 2019, Scottish law provided a power to apply IH test; under current law IH test applies. 26 Potential huge implications of Samuels in the context of welfare benefit reforms and cost of living crisis, fuel poverty etc Rising rents - scarcity of accommodation and/or Some gentrification Local housing allowance – freezing of local reference rates issues to 2016–2020 & 2021-2024 Benefit levels and caps – not determinative as regards think affordability; what about disability benefits? about… Assessing affordability – what are “the basic essentials of life”? Rising levels of poverty – ‘heat or eat’ Joseph Rowntree Foundation – UK Poverty Report (January 2022) Are Feldman’s ideas reflected in the law? In decisions of LA’s and the courts? 27 MEANING OF “DELIBERATE”: R v Wandsworth ex p Hawthorne - Deputy High Court Judge – (NB: the case went to the Court of Appeal.) – N.B. THIS IS NOT BINDING LAW, included for reflection The housing officer decided that the applicant was intentionally homeless as she ‘wilfully and persistently failed to make payments of rent’. Applicant claimed she could not afford to pay the rent. “The elusive word for interpretation is the adverb “deliberately”. The etymology of the word is the Latin verb, “deliberare” which means to weigh, to think over carefully. To act with deliberation is to proceed to do an act without haste or rashly. The word implies full awareness of the nature of what one says or does, and often involves a careful and unhurried calculation of the intended effect, or the probable consequences. The analogue of a deliberate act is a considered act which constitutes soundness or maturity of judgment. Judged by that analogy, “wilfully and persistently failed to make payments” (the words used in the decision-letter …..) means deliberately doing an act the consequence of which Ms Hawthorne was evicted from, and ceased to occupy, her settled accommodation.” Counsel for local authority argued that even if the choice is a constrained choice there will be a deliberate act or omission. He argued that it does not matter what the choice is between. The counter-argument is that a constrained choice is not a choice at all, and the local authority must take into account any constraint, such as the financial resources of the non-paying tenant, References – for any cases for which full reference not given on slides “Code” = Homelessness Code of Guidance for local authorities. HLR = Housing Law Reports R v Thurrock Borough Council ex p Williams 1 HLR, 128, QBD Devenport v Salford City Council 8 HLR 54, CA R v Wandsworth LBC ex p Hawthorne 27 HLR 59, CA Adekunle v Islington LBC November Legal Action (County Court decision) R v Wandsworth ex p Rose(1982) 11 HLR 105, QBD R v Hammersmith & Fulham LBC ex p Lusi 23 HLR 260, QBD Aw-Aden v Birmingham City Council EWCA Civ 1834 R v Westminster ex p Obeid 29 HLR 389 O’Connor v Kensington & Chelsea RLBC EWCA Civ 394 R v Westminster ex p N-Dormadingar The Times, 20 Nov, QBD Ugiagbe v Southwark EWCA Civ 31 Trindade v London Borough of Hackney EWCA Civ 942 Terryann Samuels v Birmingham City Council UKSC 28 Hodge v Folkestone & Hythe DC EWCA Civ 896

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