The duty to protect homeless persons' belongings

This article summarises when the duty is owed and explores some common problems faced by homeless teams when administering the duty.

Problem

I recently advised a homelessness team, after they'd identified some weaknesses with how they were dealing with 'protection of belongings' cases.

A homeless officer had spotted that they were sometimes continuing to store property despite having lost contact with the applicants months beforehand. On checking their invoices the council realised they had unwittingly spent thousands of pounds on storing the possessions of these former applicants.

It goes without saying that homeless teams should have systems in place for regularly reviewing storage cases. But why had this problem occurred?

Why had this problem occurred?

It isn't always appreciated that the duty to protect a homeless applicant's belongings can - and often does - continue when the duty to arrange accommodation ends. Indeed, the duty to protect someone's belongings can arise even when the council hasn't had to provide temporary accommodation at all.

To understand why we must consider what the law says about when the duty starts and ends.

When is the duty owed?

The duty to protect a homeless applicants' personal property arises when all of the following conditions apply:

• There is reason to believe there's danger of loss or damage to the applicant's personal property
• That danger results from the applicant being unable to protect their possessions or deal with them
• No other suitable arrangements have been or are being made
• The applicant is (or was) owed any of the following duties:
  • the duty to take reasonable steps to prevent a priority need applicant becoming homeless (s.195)
  • the interim duty to accommodate an applicant who may be homeless and may have a priority need (s.188)
  • the interim duty to accommodate an applicant pending the outcome of a local connection referral (s.200)
  • the duty to accommodate an intentionally homeless person who has a priority need (s.190(2))
  • the duty to advise and assist an intentionally homeless person who isn't in priority need (s.190(3)), or
  • the main housing duty for applicants who are unintentionally homeless and in priority need (s.193).

(See HA 1996, section 211)

Most commonly the duty will kick in when the applicant is losing accommodation, their belongings would be at risk if they were to remain at the property, and the applicant doesn't have anywhere they can safely store the items.

The duty also applies where personal property belonging to a member of the applicant's household (or someone with whom the applicant might reasonably be expected to reside) is at risk (s.211(5)).

Wales

The rules in Wales are very similar, and can be found at sections 93 and 94 of the Housing (Wales) Act 2014. The main difference in Wales is that to be owed the protection of belongings duty the applicant must be owed (or have previously been owed) one of the following duties:

• the homelessness prevention duty (s.66);
• an interim accommodation duty under s.68 (reason to believe the applicant may be eligible, homeless and in priority need) or s.82 (local connection referral being sought); or
• the full s.75 duty to secure accommodation.

An applicant owed the prevention or relief duty must have an apparent priority need to be owed the duty (s.93(2)).

What must the council do?

The council must take reasonable steps to prevent the loss of the applicant's property or prevent or mitigate damage to it (s.211(2); HWA, s93(1)). This can involve a variety of actions, e.g. securing an insecure property where possessions are stored, to address a risk of theft.

Most commonly councils will employ a removal contractor to collect the belongings and place them in storage.

The council may arrange for the property to be collected and taken to a particular location specified by the applicant, e.g. where the applicant, a family member of friend has somewhere the belongings can be delivered to, where they'll no longer be at risk of loss or damage.

When does the duty end?

The duty usually ends when either:

• The council complies with a request by the applicant to move their belongings to a particular location, having warned them that this will result in the duty ending, or
• There's no longer any reason to believe that there's danger of loss or damage to the property as a result of the applicant being unable to protect or deal with the property.

The council must notify the applicant when the duty ends and confirm the reasons why the duty has ended. The notice can be sent to the applicant's last known address (s.212(4),(5) / HWA s.94(8),(9)).

Why does the duty often continue?

Since section 212 (and HWA, s.94) does not list the ending of an accommodation or assistance duty as a legitimate reason for ending the s.211 duty, the duty will often continue even after the council's other duties to help have ended.

A common example is where a duty to arrange temporary accommodation has ended, but the applicant remains homeless.

Another example is where the applicant obtains accommodation but for some reason can't take back possession of their belongings, e.g. because the accommodation is small, very temporary, or - in the case of furniture - already furnished. (These examples assume that the applicant doesn't have the financial resources to make alternative arrangements. If they do, the 'unable to protect their possessions' condition is no longer met, and the duty can be ended).

Put simply, if there's still a danger of loss or damage to the person's belongings the council won't usually be able to end the duty.

The continuing duty - illustrated

Complaint against Sutton LBC (03/B/06452; 09/12/2004) provides an example of the possible consequences if a council disposes of an applicant's property without first properly ending the duty.

In this case a council ('Council A') accepted that it owed Mr S the main housing duty. They put his belongings into storage when initially placing him in a bed and breakfast.

The housing duty subsequently ended because Mr S didn't pay the B&B occupation charge.

Mr S then approached a neighbouring council ('Council B') who agreed to provide interim B&B accommodation.

A few weeks later Council A contacted Council B. Council B confirmed that they were not accepting a housing or belongings duty towards Mr S. They also suggested to Council A that Mr S had had full time employment for four months. Council B believed Mr S could therefore afford to take responsibility for his belongings.

Council A verbally informed Mr S that they no longer had a duty to protect his belongings, and warned him that if he did not provide a forwarding address his belongings would be disposed of. This was also confirmed in writing. However, Mr S asserted that he could not provide an address because he was homeless.

Two months later the Council had not received a forwarding address nor any other contact from Mr S. They instructed their storage contractor to dispose of Mr S's belongings.

Mr S complained to the Local Government Ombudsman, who found that Council A were at fault when disposing of Mr S's belongings because:

• its officer had not properly satisfied herself that the applicant could take responsibility for his belongings; and
• the Council did not give reasons for its decision that the duty had ended.

The Council agreed to:

• pay Mr Smith £6,000 compensation for the property he'd lost;
• waive outstanding storage charges; and
• review its procedures to ensure they complied with the legislation.

It's worth noting that as well as complaining to the Ombudsman a homeless applicant whose belongings have been damaged or destroyed in breach of the council's duties may also bring a claim for compensation in the courts.

What additional steps should a council take so that it can end the duty?

A particular problem can arise in 'continuing duty' cases if the council no longer has the applicant's contact details.

Obviously if you can't contact the applicant it's difficult to check their circumstances and establish the facts. This in turn is likely to make it difficult to conclude that the applicant has the means to protect their possessions (so they're no longer at risk), and that the duty should therefore be ended. After all it's a basic principle of administrative law that decisions by public bodies must be supported by facts.

It's perhaps surprising that the Act doesn't explicitly state that councils can dispose of belongings when all contact with the applicant is lost and reasonable efforts to contact them have been unsuccessful. However, it's doubtful that Parliament would have intended councils to store possessions indefinitely in this situation.

Helpfully (for councils) the legislation does allow councils to impose reasonable conditions on the applicant (HA 1996, s.211(4) / HWA 2014 s.93(4)). Conditions can:

• require the applicant to make reasonable payments towards the cost of protecting the property
• make provision for the circumstances in which property may be disposed of, or
• relate to other appropriate matters.

The Code states:

Similarly, it would appear councils can include a condition that the applicant's property can be disposed of if they fail to make payments, and have been given an opportunity to make payments or collect the property.

Given the possibility of losing contact with applicants, it's advisable to impose conditions requiring them to keep the homelessness team updated on any change in their address or contact details. And, again, provide that the belongings may be disposed of in the event of breach and if reasonable attempts by the council to secure return of the possessions are unsuccessful.

The importance of actually imposing the conditions

Back to the council I was advising.

I helped the council identify that they weren't always issuing documentation every time it took belongings into storage. This was often because - as is so often the case - the applicant wasn't physically present at the council office when the duty arises. They'll often be a need to act very quickly to prevent possessions being lost, e.g. where a former home must be quickly cleared, or where a tenant's possessions have been placed outside the former home.

Neither was there anything in the council's internal processes requiring officers to ensure that:

• the conditions are explained to the applicant, and
• a record is made of that advice (so that it can be relied on subsequently).

Needless to say, all of the conditions should be clearly set out in writing. A signature from the applicant should be obtained if possible. This (together with a record of any oral advice regarding the conditions) can provide evidence that the relevant conditions were actually imposed.

Correct sequence of events

The wording of section 211(4) may be interpreted as requiring the council to impose the conditions before they protect the applicant's belongings.

If this interpretation is correct, a council that fails to impose the conditions before taking action to protect the belongings will be unable to rely on any conditions they subsequently impose to end the duty (this interpretation was preferred by the Ombudsman; see paras 5 and 17 of Complaint against Sutton LBC).

While there is no case law on this point, homeless teams would be well advised to ensure applicants are advised of the conditions at the very outset (before the duty is performed), and that a record is made of that advice having been given. Clearly this is particularly important where the applicant is not physically present and so can't sign a written statement confirming that the conditions have been imposed.

This is the legal equivalent of getting your ducks in a row.

Other common issues

Having taken temporary possession (but not ownership) of the applicant's property, the council takes on the legal status of 'bailee'. As such the council has certain legal obligations. Most obviously the council may be held responsible if the property is lost, damaged, destroyed or otherwise disposed of.

With the possibility that the applicant's possessions might be damaged or lost there's potential for disputes about what the items were, their condition, and their value (for example, in the Sutton Ombudsman case the council disputed the applicant's assertion that the destroyed property was worth £16,000).

However, staff responsible for arranging collection and storage may not be physically present to record the nature and condition of property being protected.

The subject of best practice when designing and completing inventories is perhaps best left for another day. However, it's worth checking that any contract you have with a removal and storage firm includes a requirement for them to complete a detailed inventory with photographs. The applicant should also be asked to confirm that the contents of the inventory record is accurate.

Otherwise there's a risk you'll lack the evidence to effectively evaluate and counter any assertions by the owner about the nature and value of their property should items be lost, damaged or destroyed.

Free documents this coming Friday

Check out my blog on Friday if you work for a local authority homeless team. I'll be making some documents available that will help you administer protection of property cases.

If you create an account you'll be able to access them for free!