Notification notification notification!

The rules about when applicants must be notified of something in writing are one of the most challenging aspects of the homelessness reforms for councils.

As the law currently stands in England many homeless applicants only receive one notification, i.e. when the council completes its inquiries and decides what duty it owes.

The forthcoming amendments to Part 7 of the Housing Act 1996 change all that.

The Welsh experience

It's worth noting that before similar legislation was introduced in Wales not all homelessness managers immediately realised the implications of the new notification duties. When speaking to operational managers before Part 2 of the Housing (Wales) Act 2014 came into force it was noticeable that their initial focus (e.g. why they agreed with the changes) often changed to concerns about the administrative burden imposed by the new rules.

As implementation loomed closer I heard it being asked more than once:

One of the key lessons from Wales is that software development will be critical for ensuring staff can cope with the new administrative burdens. This is because the number of applications, decisions, case reviews and notifications will all increase.

When must applicants be notified?

I've outlined below when homeless applicants will need to be notified once the 2017 Act comes into force.

References to legislation are to Part 7 of the Housing Act 1996 as it will be amended by the 2017 Act.

When taking an application

There's no requirement for councils to notify people that they've made a homeless application.

Although if you're reviewing your processes why wouldn't you want to confirm in writing that you've taken an application? When I was a paralegal it often struck me as absurd that homeless people who'd contacted the council often couldn't tell me whether an application had been accepted.

Incorporating a written notification at the outset could help to provide much needed clarity for applicants. It also enables councils to tell applicants at the very outset what they can expect from the process.

And you needn't overwhelm applicants with reams of paperwork - a real danger under the amended legislation as we'll see. Why not instead signpost applicants to online summaries by including hyperlinks in your emails and written information. If you take this approach you'll want to ensure that the associated webpages are concise and set out key facts in short digestible mobile-friendly pages.

Assessment

The new section 189A imposes a duty to carry out an assessment of the applicant's needs and sets out what issues the assessment must address for applicants who are:

• eligible for help (on immigration grounds), and
• homeless or threatened with homelessness (s.189A(1)).

So the new detailed assessment will not be required where the authority is satisfied that either the applicant is ineligible or that they're not threatened with homelessness. In these circumstances notification under section 184 (that no duty is required) will, as now, suffice.

Assuming that the applicant is eligible and either homeless or threatened with homelessness the assessment can be undertaken either immediately following the request for assistance (assuming the council has obtained the necessary information) or some time after the application is received.

The statutory guidance will no doubt recommend a timescale for completing the assessment. The Welsh Code recommends that assessments are completed as soon as possible and within 10 working days in most cases (para 10.5). However, in Wales the assessment happens at an earlier stage.

The threshold test for the s.189A assessment having to be carried out is that the council is satisfied (rather than merely having reason to believe) that the applicant is eligible and homeless or threatened with homelessness. It won't be possible to complete the assessment straight away if inquiries into eligibility and homelessness status are required.

Clearly it will be important to get the assessment right. Councils won't want to accept that someone is homeless or threatened with homelessness in error - a decision they won't subsequently be able to retract in the absence of fraud or a fundamental mistake of fact.

The new section 189A(2) requires councils to assess:

• the circumstances that caused the applicant to be homeless or threatened with homelessness
• the applicant's housing needs including, in particular, what accommodation would be suitable for the applicant
• what support is necessary for the applicant and household members to be able to have or keep accommodation.

Notifying the assessment

The outcome of the assessment must be notified to the applicant (s.189A(3)).

In most cases this will be the first notification that applicants receive.

Section 189A(3) states:

Presumably this means that the substantive findings on the above issues (i.e. causal circumstances, housing need, support needs) will need to be set out in the notification. Your software should therefore be configured so it produces a form that includes the assessment findings.

This is just one example of where forward thinking councils will create templates that are automatically populated. The aim should be, as far as possible, to enable staff to enter information once, and for that text to populate customer-ready notifications - so reducing the staff time needed to produce each notification.

Of course this is much easier said that done. But investing sufficient funds and staff time now in software and workflow development will pay dividends in future years. Something to think about when apportioning the additional funding from central government that's only going to last for two years.

Recording the steps to be taken

The council must also record in writing what they agree with the applicant about:

• what steps (if any) the applicant must take for the purpose of securing that they and household members have and are able to retain suitable accommodation, and
• what steps the council will take for the same purpose (s.189A(4) and (5)).

If the council and applicant can't reach an agreement about the steps to be taken the authority must record:

• why they could not agree,
• any steps the council consider it would be reasonable to require the applicant to take, and
• the steps the council will be taking under Part 7 (to help the applicant obtain or retain accommodation) (s.189A(6))

Whether or not the steps were agreed the council must give the applicant a copy of the written record (s.189A(8)).

Councils will want to send this together with the assessment notification to avoid 'notice overload' and to simplify their processes. However, it should be recognised that section 189A(4) makes clear that the duty to seek agreement on the steps to be taken arises "after the assessment has been made".

The purpose is clearly to ensure that the decision on what steps the applicant and council must take is informed by the assessment, including the applicant's specific needs in terms of accommodation and support.

The council may include in this written record (of what steps were agreed or imposed under s.189A(4) or (6)) additional advice for the applicant. This may include steps it would be a good idea for the applicant to take, but which the applicant isn't required to take (s.189A(7)).

Steps that the applicant must take may subsequently form the basis of a decision to end the prevention duty or the initial 'help to secure' homelessness duty on the grounds that there has been a 'deliberate and unreasonable refusal to co-operate'.

Notifying what duty is owed

The existing section 184 duties are retained under the new regime (unlike in Wales) albeit in amended form. Consequently, housing options teams must also notify applicants when inquiries (into what duty is owed) are completed (s.184(3)).

The s.184 lynchpins remain unchanged. Firstly, the duty to make inquiries and secondly the duty, once inquiries are completed, to notify the applicant of:

• the decision the council has made as to whether he or she is eligible for help
• what duties, if any, are owed under Part 7
• the reasons for any adverse decision, and
• their right to a review and the time within which a review must be sought.

No doubt councils would prefer to combine this notification with the initial assessment notification wherever possible.

However, inquiries into priority need and intentionality will often not be completed by the time the initial assessment has been undertaken. For example where a GP has yet to respond to a request for information that's required to assess vulnerability.

Also, the new process will have two post-homelessness stages. The main housing duty won't arise until the initial 56-day duty to 'help to secure' ends.

Somewhat unhelpfully s.184(3) hasn't been amended to take account of this fact; it still refers to authorities 'notifying their decision' (singular).

Hopefully the draft Code, that's due to be issued for consultation in the autumn, will provide some clarity. I suspect that the guidance will stress the importance of not delaying the notification of the assessment and housing plan where inquiries have not been completed, since (quite apart from being potentially unlawful) a delay may adversely impact upon the resolution of the applicant's homelessness (or threatened homelessness). After all, homeless officers will want applicants to start taking action to help themselves as soon as possible after the request for assistance is received.

I suspect that in many cases councils will wish to issue two s.184 notifications, ie:

• a decision when inquiries are completed on eligibility and homelessness status (which determines whether the prevention duty or 56-day duty 'to help secure' is owed, and which may be sent along with the s.189A assessment notification), and then
• a decision on priority need and intentionality (which determines whether the main s.193(2) housing duty is owed when the s.189B(2) homelessness duty ends, if the applicant's homelessness hasn't been resolved during the initial 56-day period).

In this context one is reminded of Crawley BC v B [2000] EWCA Civ 50. The case concerned the circumstances in which authorities can revisit decisions. The Court of Appeal stressed the public law nature of homelessness decision-making. Having decided the applicant did not have a priority need Crawley were not required to determine intentionality. The court stated:

I suspect that some councils will be seeking counsel's opinion on whether there can legitimately be two s.184(3) decisions, so they can have some confidence in the new processes they're designing.

What is clear, however, is that the administrative burden for local authorities is made heavier because the s.184(3) notification duty is independent and separate to the duty to notify the outcome of the s.189A assessment (and, indeed, the duty to notify changes to the assessment - about which see below).

Local connection referral

Any decision to pursue a referral on local connection grounds will, in a similar way to currently, need to be notified to the applicant (s.184(4), s.200(1)). Similarly the subsequent decision on whether the referral conditions are in fact met needs to be notified (s.199A, s.200(2)).

However, once Part 7 is amended a council will be able to seek a referral at two distinct stages in the process.

Firstly, a referral can be sought before the new s.189B 'help to secure' duty is accepted (by virtue of the amended s.184(4) and the new s.198(A1) and s.199A).

If the receiving authority accepts the referral they become subject to the initial s.189B homelessness duty (which generally lasts for 56 days). But if it's decided the referral conditions are not met then the notifying authority owes the initial s.189B duty to help the applicant to secure accommodation (s.199A(4)(a)).

If a referral at this early stage is successful the notifying authority must give to the notified authority copies of any notifications they've given to the applicant under s.189A(3) and (10) (s.199A(5)(d)). These are those notifications the applicant was given in relation to the initial assessment and any reviews of the assessment (about which see below).

Alternatively a referral can be sought after the initial 'help to secure' 56-day homelessness duty has been accepted. Think of this as the equivalent of what happens now. In this situation the council will have already accepted that:

• the initial s.189B duty to help the applicant secure accommodation is owed (because they are homeless)
• the applicant has a priority need , and that
• the council would otherwise (but for the referral) be subject to the main housing duty.

Must interim accommodation be provided for applicants where a referral has been sought? Well, yes in the second scenario - if the initial s.189B homelessness duty was accepted before the referral is sought (as now, under s.200(1)).

However those who aren't (yet) owed the initial 'help to secure' homelessness duty - by virtue of the referral request - will only be owed an interim duty if there's reason to believe they may have a priority need (s.199A(2)).

Reviewing the initial assessment

Anyone who helps or advises homeless people knows that their status under Part 7 can quickly change. A person who's merely threatened with homelessness one day may become homeless the next, for a whole variety of reasons.

Similarly the steps that homeless people should be taking often change over time as their situation changes.

It should therefore come as no surprise that alongside the new assessment duty the amended Part 7 provides a mechanism by which councils must review that assessment.

Section 189A(9) provides a general duty to keep the assessment under review as well as the appropriateness of the agreement reached regarding the steps the council and applicant must take for the purpose of securing that the applicant has and can keep accommodation.

Under subsection (10) the authority must notify the applicant of how the assessment of their case has changed if:

• the assessment of any of the matters mentioned in subsection (2) (causal circumstances, housing need and support required) changes, or
• the assessment changes in another respect, such that the authority considers it appropriate to notify the applicant.

The applicant must also be notified if the council considers that any of the steps (not including any non-mandatory steps) are no longer appropriate (s.189A(11)).

These provisions are potentially problematic for councils. A significant proportion of homeless cases will undergo such changes. And in each case the applicant must be notified in writing.

Again this reinforces the importance of prioritising software development and document production so that staff can manage the administrative burden.

Unreasonable and deliberate non-cooperation

A policy objective of the 2017 Act is that applicants are required to take action themselves to help to secure that they have suitable accommodation.

There will undoubtedly be some applicants that don't wish to take the steps that the council has identified as necessary to resolve their housing problem.

The experience in Wales is that a significant number of non-priority applicants won't necessarily want the help on offer. At least when they realise that the council won't be arranging temporary accommodation.

Whatever the applicant's motivation for not cooperating the 2017 Act provides additional safeguards before councils can end their involvement, secured via a complex legal test (see the new s.193B). Applicants must be given a 'relevant warning' (essentially a 'minded to' notice) before the prevention or initial 56-day homelessness duty can be ended.

The applicant's non-cooperation must take the form of refusing to take a mandatory step specified in the applicant's housing plan. For assessors this reinforces the need to carefully consider what steps the applicant is required to take when formulating the plan.

The 'relevant warning' notice must be given after the applicant has deliberately and unreasonably refused to take a step, and must:

• confirm the step the applicant was required to take
• warn the applicant that the council intends to give notice to end the duty if they deliberately and unreasonably refuse to take the step after receiving the notice, and
• explain the consequences if the council proceeds to give the discharge notice under s.193B(2), i.e. explain that the prevention or initial duty 'to help to secure' will end (s.193B(5)).

The council must allow a reasonable period to elapse before serving the discharge notice (s.193B(4)(b)). The Secretary of State may make regulations as to the procedure which councils must follow when giving notices for a failure to co-operate (s.193B(7)). One would expect the Government to prescribe a minimum period of time between the relevant warning notice and discharge notice.

When do duties start and end?

A key task for homelessness managers and ICT staff will be establishing the circumstances in which each Part 7 duty is owed and when each duty ends.

When helping a Welsh authority implement similar reforms in 2015 I found that a duty mapping exercise was indispensable for determining:

• what notices must be given
• what notices must contain, and
• the circumstances when notices can be combined.

Mapping the duties (Welsh example here) was also invaluable when:

• mapping your new processes, and
• procuring software amendments and creating workflow.

In terms of ending duties under the amended Part 7 the general rule is that the applicant must be notified that the duty has ended.

However, this will not always be the case. For example where 56 days have passed since the authority was first satisfied that an eligible applicant was homeless, and the applicant has a priority need and is unintentionally homeless, the main s.193 housing duty will arise automatically by virtue of s.189B(4) (assuming that the initial duty to 'help to secure' is not otherwise brought to an end during the 56 days, e.g. via a final offer of accommodation).

Internal reviews of decisions

There's no fundamental change to the way in which applicants must be notified about their right to request a review of decisions made on their application.

Also the duties to acknowledge receipt of review requests, to send a 'minded to' letter (where there's a deficiency in the original decision) and to notify the review decision are unchanged by the 2017 Act.

However, the fact that there are additional duties and new ways of ending duties means that there are additional circumstances in which an applicant must be informed of their right to a review.This has implications for what notifications must contain and is another reason for clearly mapping out as early as possible when the various duties will be owed and when they'll end.

When applicants don't receive notifications

Most notifications under Part 7 are treated as having been received by applicants if they don't receive them, providing the notification is made available at the council's office to collect for a reasonable period.

It's a good idea of course to inform applicants at the outset that notices will be available for them to collect at the same time as stressing the importance of informing the council if their address or contact details change.

Email versus letters

Personally I don't see any reason why email shouldn't suffice for the purposes of notifying a homeless applicant. Hopefully the guidance will confirm this.

Certainly for many applicants email provides a much better way of receiving information. As stated above emailing notifications provides an opportunity to provide hyperlinks to online sources of advice and information.

But emailing notices isn't a magic bullet for the 'notification overload' problem. It doesn't reduce the number of notifications councils will have to send.

Conclusion

Homelessness teams will have to grapple with the 'notice problem'. The risk is that statutory assessment team will be overwhelmed by the new case management regime, particularly where there are large numbers of applicants.

For many councils avoiding administrative meltdown and backlogs will require significant investment in software and document production.