Homelessness Reduction Bill - more help at the council?

If you’re at risk of losing your home in England and go to your local council you may be surprised at how little help you get. The council officer’s response may amount, when all’s said and done, to something like this:

Or, if you're already homeless but don't have children:

Some housing departments have taken great strides in improving their advice and homelessness prevention services in recent years (for example under the NPSS gold standard initiative).

However concern has persisted about the standard of help some councils provide to those who are homeless or at risk of homelessness. Particularly for people who don't qualify for temporary accommodation ('non-priority need' applicants).

Radical change

It now seems inevitable the homelessness legislation will shortly undergo the most radical change in its 40 year history.

The Homelessness Reduction Bill is a private members bill, but is supported by the Government and has enjoyed cross party support. It aims to ensure that council homelessness services intervene earlier and help everyone (rather than concentrating on sorting priority from non-priority cases and concentrating on the former).

The central idea is that homelessness can be prevented in many more cases.

Strengthening the safety net

If enacted the Bill will amend Part 7 of the Housing Act 1996 (the 'homeless application' safety net administered by councils) and the Homelessness (Suitability of Accommodation) (England) Order 2012.

The version of the Bill that emerged from its third reading in the Commons is lengthy. It runs to 19 pages and comprises 13 clauses. It will require councils to change how they help members of the public who ask for help with housing.

Purpose of this post

This article summarises how the homeless application process will change, based on the version of the Bill that went to the House of Lords in late January 2017.

Note that the Bill may be amended further. You can track the Bill's progress and access related documents on the Parliament website. Updated Explanatory Notes were recently issued, incorporating changes made since the Bill was introduced.

Change to the definition of 'threatened with homelessness'

A person will be threatened with homelessness if they're likely to become homeless within the next 56 days (rather than within 28 days, as at present; see clause 1).

Councils will therefore have to take a homeless application if there's some reason to believe that a person who's asking for housing (or for help with obtaining housing) is likely to become homeless within 56 days.

Clearly the aim is to ensure council homeless teams get involved earlier. After all, the earlier help is given the more likely it will be that homelessness can be prevented.

Effect of a private landlord serving a section 21 notice

A private tenant will be threatened with homelessness if their landlord has served a valid section 21 notice, once the expiry date falls within the next 56 days (assuming the tenant doesn't have other accommodation they can occupy; see clause 1(2)).

This amendment aims to ensure that councils fully engage with private tenants when they first ask for help.

As we'll see the Bill will impose extra administrative burdens on councils once someone is within the statutory homelessness process. The reforms will therefore increase the incentive for councils to prevent housing applicants even coming within 56 days of homelessness.

Improving the general advice councils provide about homelessness

The law governing what advice councils must provide about homelessness to people in its area will be strengthened (see clause 2).

For example councils will have to provide information and advice about:

• how to secure accommodation if you're homeless
• what help is available for homeless people in its area (both via the council and from other agencies)
• how to access that help
• what rights people have when applying to the council as homeless

Councils will have to advise people who aren't yet within 56 days of homelessness and help them access the help that's available in their area to prevent homelessness.

Councils will also have to ensure its advice service is designed to meet the needs of groups at particular risk of homelessness, including:

• victims of domestic abuse
• care leavers
• people leaving prison or youth detention
• those leaving the armed forces
• people suffering from mental ill-health, and
• any other group the authority identify as being of particular risk of homelessness in their area.

Duty to conduct an initial assessment

If, having received a homeless application the council is satisfied that the applicant is eligible for help (because of immigration status) and either homeless or threatened with homelessness, they'll have to carry out an assessment (see clause 3(1)).

As part of the assessment the council will have to assess:

• the circumstances that caused the applicant to become homeless or threatened with homelessness
• what housing the applicant needs, and what accommodation would be suitable, and
• whether the applicant needs support to obtain and keep accommodation.

The applicant must be notified of the assessment.

Information obtained as part of the assessment will often be relevant when the council decides what legal duty the applicant is owed.

Duty to provide a 'personal housing plan' and seek agreement with the applicant

After the assessment has been completed the council will then have to draw up a housing plan for the applicant (see the new section 189A(4)-(8), inserted by clause 3(1)).

The council must try and agree with the applicant:

• what steps they must take to help themselves get or keep suitable accommodation, and
• what steps the council will take to help them get or keep accommodation

If the applicant and council can agree on what steps are needed, the council must record those steps in writing.

If agreement can't be reached the council must then record in writing:

• why an agreement couldn't be reached
• the steps the council considers the applicant should take, and
• what action the council will take under the homelessness legislation, to help the applicant get (or keep) suitable accommodation.

The council can include additional advice in the plan. For example steps the applicant would be well advised to take, but which aren't compulsory. The distinction between 'must do' actions and 'can do but not compulsory' is significant because councils will have a new power to end two of the new duties if the applicant deliberately fails to carry out actions included in the housing plan (see below).

The applicant must be sent a copy of the housing plan, whether or not they agreed to the steps they must take (and the steps that the council are to take).

Keeping the assessment and plan under review

The council will then have to keep both the assessment and the written record of the agreed steps under review until such time as no homelessness duty (of any kind under Part 7) is owed.

Crucially, the council must notify the applicant if either its assessment or the appropriateness of the steps identified in the housing plan have changed.

For example, the council could reasonably expect a tenant who has a possible defence to a possession claim to obtain specialist advice and representation from a legal aid provider. However, if the local authority were to subsequently accept that the applicant doesn't actually have a defence or that it isn't in their interests to defend the possession claim it must notify the applicant in writing that this step is no longer appropriate.

Similarly if the type of housing originally identified as being suitable for the applicant would no longer be suitable (e.g. because a physically disabled person joins the household) the assessment must be reviewed and the applicant must be notified of how the assessment has changed. This can be done by simply providing the applicant with a copy of the revised assessment.

Typically there will be numerous occasions on which the applicant must be notified in writing. It will make sense for homeless teams to combine these statutory notifications where possible. Councils would also be well advised to think carefully about the contents and format of their standard documentation, bearing in mind that a central objective is to prioritise practical help.

Applicants will be treated as if they received such notifications if they're made available to collect from the council offices. Homeless teams will want to make sure applicants understand this, so they don't miss the 21-day time limit for any negative decisions about what help they're entitled to.

Help for all eligible homeless applicants

The requirement to carry out an assessment and draw up a personal housing plan applies to all eligible applicants who are either homeless or threatened with homelessness. The fact an applicant might not have a priority need or might be intentionally homeless is irrelevant.

This universal feature of the new rules will also apply to the new duties (summarised below) to:

• prevent homelessness, and
• take reasonable steps to relieve homelessness.

Preparing for implementation

There are significant implications for council homeless teams.

For example:

• The number of homeless applications will increase. Not only because people will enter the statutory process four weeks earlier, but because those single persons and non-priority households who may currently decline to pursue a homelessness application (or not challenge a failure to take an application) are entitled to help.
• Homeless officers will have to proactively case-manage all applications.
• Councils will need to review and re-design their processes and case management software, not least to avoid their officers being overwhelmed by the new administrative burdens.

Indeed, not having software that dovetails with the new statutory requirements constitutes one of the key risks now facing housing authorities as they prepare for implementation. Requiring officers to individually produce every assessment, housing plan, assessment review, and decision is a sure-fire route to backlogs and systematic breaches of the new duties.

Another key preliminary task for housing departments will be to estimate the number of additional applications they're likely to receive.

And while the Government recently announced an increase in the funding for councils to £61m for 2017-19, it seems unlikely this will be sufficient - even though there should be savings derived from the increased prevention of homelessness.

A strengthened duty to prevent homelessness

The existing duty to prevent applicants becoming homeless will be strengthened, reflecting the central aim of the Bill. Section 195 is to be replaced (see clause 4).

The prevention duty will apply whenever the authority is satisfied that an eligible applicant is threatened with homelessness.

Councils will have to:

• take reasonable steps to help the applicant secure that accommodation does not cease to be available.

Unsurprisingly councils must have regard to their assessment when deciding what steps they'll take to prevent homelessness, i.e. what steps are reasonable in the applicant's particular circumstances.

The prevention duty will commonly end if the applicant becomes homeless (in which case see below) or if they obtain suitable accommodation and there's a reasonable prospect accommodation will be available for six months (whether or not the council helped find the accommodation).

See the new section 195(8) (as inserted by clause 4) for the other ways in which the prevention duty may be ended.

A new homeless relief duty

A new duty to help an applicant secure accommodation will apply for all eligible applicants who are homeless (under a new section 189B; see clause 5).

This is another key change reflecting the central aims of the Bill. It requires councils to help homeless people regardless of whether they might have a priority need (providing they're not being referred to another council because of local connection).

The duty is to help the applicant to secure accommodation (that's likely to last for six months) rather than a duty for the council to actually secure accommodation (although the applicant may at the same time be entitled to temporary accommodation if there's reason to believe they may have a priority need - see below).

When deciding what action they should take to perform this 'reasonable steps' duty councils must again have regard to the factual findings made during the assessment, e.g. the nature and extent of any support needs or any disability. The applicant's circumstances will affect what steps are reasonable to help them find housing.

The idea is that councils can act flexibility when deciding what help to offer, having regard to the particular barriers that might be preventing someone from escaping homelessness. Some people might need to be referred for help so they can overcome an addiction. In other cases the council may decide it's appropriate and cost effective to pay a tenancy deposit.

The relief duty will usually last for 56 days.

The duty could be ended earlier if, among other events, suitable accommodation is available to the applicant, and there's a reasonable prospect accommodation will be available for six months. See the new section 189B(7) (inserted by clause 5) for the other ways in which this 'help to secure' duty can be ended.

Importantly, a final offer of social housing or privately rented accommodation can be made when the relief duty is owed, the refusal of which can prevent the main s.193 housing duty arising (see the new section 193A, inserted by clause 7(1)).

As one would expect the council is required to warn the applicant in advance about the consequences of refusing a final offer, before a refusal can be used to end the relief duty and so avoid - for a priority need applicant - the main duty.

If a final offer is made of privately rented accommodation to end the relief duty the tenancy must be a fixed term assured shorthold of at least six months.

By contrast the offer of a private let to end the subsequent main s.193 duty will - as under the current rules - require a 12 month fixed term assured shorthold tenancy. Given that private landlords are generally less willing to offer 12-month fixed terms, this distinction provides an additional incentive for councils to make early offers of private rentals, i.e. during the 56 days in which the relief duty is owed.

Duty to secure interim temporary accommodation

The section 188 test for whether temporary accommodation must be secured remains practically unchanged by the Bill. Councils must secure interim accommodation if there's some reason to believe that the applicant may be eligible, may be homeless, and may have a priority need.

Clause 5(4) introduces some significant amendments concerning the circumstances in which the interim duty (once accepted) may be ended.

Most notably the temporary accommodation duty will continue where the applicant requests a review of the suitability of accommodation offered to them as a final offer. In this situation temporary accommodation must be provided until the applicant is notified of the review decision (see the new s.188(2A), inserted by clause 5(4)(c)).

The main housing duty - a duty delayed

Clause 5(7) re-writes section 193(1). The main housing duty - for the unintentionally homeless and priority need applicant - will now not be owed until the 56-day homeless relief duty ends.

Priority need applicants therefore have the potential to travel through a three-stage process:

• prevention (threatened with homelessness)
• relief / reasonable steps to help (homeless)
• main duty (still homeless because relief unsuccessful)

The process has been designed - both before and after homelessness happens - to give councils more time to help people find a housing solution.

Duty on public authorities to refer homeless persons to local housing authorities

Another innovation contained in the Bill aims to ensure that public bodies refer people who are at risk of homelessness to housing departments.

Clause 10 creates a new duty. When certain public authorities become aware that a member of the public who's using their service may be homeless or threatened with homelessness they must ask the person if they want to be referred to a housing department.

The person’s details (including contact details) must be forwarded, if they agree to a referral and identify a specific council to which they want the referral sent.

This duty to refer has the potential to ensure people are helped at the earliest opportunity, e.g. in advance of a hospital discharge. However, only those categories of public body specified in regulations by the Secretary of State will owe the duty.

I can’t help but wonder how non-housing professionals, e.g. doctors and nurses, are supposed to recognise the variety of ways in which someone can legally be homeless or threatened with homelessness. Perhaps this will provide new opportunities for housing trainers?!

Unreasonable and deliberate non-cooperation

Part of the Bill’s underlying philosophy is that homeless applicants must do their bit by taking action to help themselves. After all there isn't much point in councils helping people identify what they should do to find (or keep) housing if applicants can simply sit on their hands and wait to see if the council will find accommodation for them.

So the Bill will allow councils to end the prevention or relief duty if the applicant fails to co-operate by not taking the steps that were identified in their housing plan.

This non-cooperation sanction has been significantly amended since the Bill was introduced to provide additional safeguards for applicants.

To end either the prevention or relief duty because of non-cooperation a council will have to:

• be satisfied the applicant refused to take a mandatory step specified in their housing plan (action that was required to help them retain or obtain accommodation)
• be satisfied that the refusal was unreasonable
• be satisfied the refusal was deliberate
• give the applicant a warning notice confirming that the council is minded to end the duty on this basis
• be satisfied a reasonable period has passed since the warning was given, and
• issue a discharge of duty notice, including the council’s reasons for issuing the notice, and information about the applicant’s right to request a review of the decision.

The pre-discharge warning notice must:

• confirm the step the applicant agreed to take (or was required to take, if no agreement was reached when the housing plan was drawn up)
• warn the applicant that the council intends to give notice to end the duty if they deliberately and unreasonably refuse to take the action, and
• explain the consequences if the council proceeds to issue a discharge notice.

The decision-maker must have regard to the applicant’s needs and circumstances when deciding whether to issue the warning or discharge notice.

Special rules apply if an applicant who has failed to co-operate has a priority need and did not become homeless intentionally. Where the prevention or relief duty is ended because of non-cooperation the main housing duty to secure accommodation is not owed. However, if the applicant is homeless when the previous duty ends the authority must still secure accommodation under a new section 193C(4) duty – see clause 7(1).

This alternative duty for the unintentionally homeless and priority need applicant can only be ended in certain circumstances – see the new s.193C(5) and (6). Most commonly accommodation will need to be offered, e.g. an assured shorthold tenancy or a final offer of social housing.

These protections are a significant departure from Part 2 of the Housing (Wales) Act 2014, on which much of the Bill is based. For example in Wales no warning notice has to be issued and a priority need applicant isn't owed an ongoing accommodation duty if the prevention or relief duty ends because of non-cooperation.

The requirement for a warning notice seems sensible. And not only because applicants are safeguarded. Councils will have to demonstrate the applicant's failure to take action was deliberate. I suspect decision-makers will often also have to speak to applicants to establish the facts, before they can reasonably conclude the test is satisfied.

A new Code of Guidance will provide statutory guidance on how to approach such cases.

Care leavers and local connection

Clause 8 amends the local connection rules for care leavers.

Care leavers owed a continuing social services duty under section 23C of the Children Act 1989 will be deemed to have a local connection with the area of the authority that's responsible for them.

Where someone is provided with accommodation as a care leaver in another council district (under s.22A of the 1989 Act) they'll have a local connection with the area in which the accommodation is situated until they reach 21, if:

• they’ve continuously lived in the area for two years, and
• they were under 16 for at least part of the two year period.

Where a care leaver is owed the s.23C duty by a county council they’ll have a local connection with the area of every housing authority that is situated within the county council’s area.

These changes should make it easier for care leavers to obtain help in whichever area they most feel at home.

Changes to the suitability regulations

Clause 12 will amend the Homelessness (Suitability of Accommodation) (England) Order 2012.

The Suitability Order currently sets out various standards for private lets. Councils need to ensure compliance if they want to end the main s.193 housing duty by offering privately rented accommodation.

The Order requires, among other things, that private accommodation must be in a reasonable condition, have compliant electrical equipment, have adequate fire safety and carbon monoxide precautions, a valid gas safety certificate, be let by a 'fit and proper person' etc.

The Bill will amend the Order so these requirements also apply if the council wants to offer privately rented accommodation to end:

• the prevention duty
• the relief duty, and
• the s.193C(4) duty to applicants who are unintentionally homeless and in priority need, but who are not owed the main duty because they deliberately and unreasonably refused to co-operate with the authority.

Reviewing decisions

As the Bill creates new duties and new ways of ending those duties there are amendments to applicants’ rights to challenge decisions. Clause 9 amends section 202 of the 1996 Act.

The applicant will have a right to ask the council to review the following types of decision:

• a decision about whether the s.195 prevention duty is owed
• a decision about what steps the authority should take when the prevention duty is owed
• a decision to end the prevention duty (by giving notice under s.195(5))
• a decision about whether the s.189B homeless relief duty is owed
• a decision about what steps the authority should take to help an applicant who’s homeless obtain accommodation when they’re owed the relief duty
• a decision to end the homeless relief duty (by giving notice under s.189B(5))
• a decision to end either the prevention or homeless relief duty because the applicant has deliberately and unreasonably failed to co-operate with the council (by giving notice under s.193B(2))
• a decision about whether a duty is owed under s.193C (duty to applicants who have failed to co-operate).

In January 2017 the DCLG estimated there will be a 50 per cent increase in the number of review requests.

Code of Practice

Clause 11 enables the Minister to publish Codes of Practice. In this way the Government is able to issue targeted advice on standards and best practice if it isn't convinced that councils are taking appropriate action.

Any Code of Practice would provide guidance on issues such as monitoring service delivery and training for staff.

Those council to which a Code of Practice applies would have to have regard to its contents (or those parts of the CoP that apply to it) when exercising their homelessness functions, in addition to having regard to the Code of Guidance.

I wonder whether the Minister will include guidance on data recording or require the auditing of statistical returns, given the questionable reliability of official homelessness statistics.

In conclusion

The purpose of this post has been to summarise the Bill's provisions, as they currently stand. I've therefore steered clear of the arguments for and against the Bill or the merits of the individual provisions.

In any event it appears certain the Bill will receive royal assent (barring a snap general election. Or perhaps a national emergency resulting from an errant flap of Donald Trump’s coiffure).

That's not to say that many won't have genuine concerns about how effective the new duties will be. Particularly in the south east and areas where there's limited affordable housing .

Clearly the Bill doesn’t seek to address housing supply or the gap between rents and incomes. Nor is the Bill concerned with regulating the rental market or tackling the other structural causes of homelessness (you might say 'neither did the White Paper!'). And then there's welfare reform...

However, the Bill does provide a genuine opportunity for councils to review and improve their homelessness service and shift resources towards planned prevention.

The Bill’s sponsor Bob Blackman MP has repeatedly stated that the Bill aims to ‘change the culture’ of local authority homeless teams. Indeed the whole of the Bill could be viewed as an attempt to improve practice via the imposition of legal duties.

So, homeless applicants should notice an improvement in how they're helped when they ask the council for help. Even if - for some - their application doesn't result in them being given the one thing they'd probably prefer above everything else - housing.