Refusing to apply the sanction? Some thoughts on non-cooperation (and some letters)

The letters:

The following letters are now available in the Resources section.

Broadly speaking there are two types of letter. This is because section 193B(3) of the amended Housing Act 1996 requires a 'relevant warning' notice to be given before the council can end the prevention or relief duty because of non-cooperation.

Warning notices:

• Prevention duty may end because of non-cooperation
• Relief duty may end because of non-cooperation
• Relief duty and interim accommodation duty may end because of non-cooperation

If, once a reasonable period of time has elapsed since the warning, the applicant has deliberately and unreasonably refused to take a step in their housing plan, the council can proceed to end the prevention or relief duty.

Ending the prevention duty because of non-cooperation:

• Discharge notification letter

Ending the relief duty because of non-cooperation:

• Applicant not in s188 interim accommodation / no duty owed (no priority need)
• Ending the relief duty and interim accommodation duty / no duty owed (no priority need)
• Ending the relief duty and interim accommodation duty / accepting the s.193C(4) accommodation duty (priority need and unintentional)
• Ending the relief duty and interim accommodation duty / s.190 accommodation duty owed (priority need but intentional)

The statutory test

Homeless officers will need to ensure they've boxed off all aspects of what is a complex statutory definition (set out at sections 193B and 193C).

The hoops they'll need to jump through are far from straightforward. I've counted that there might need to be up to seven separate limbs of the statutory test that decision-makers must address (!). Drafting these notifications could therefore make intentionality letters look like a walk in the park.

I've tried to write the letters in such a way that decision-makers are required to navigate the necessary statutory hurdles. They also highlight where you need to:

• summarise the facts you're relying on
• give reasons why the statutory test is met, and
• refer to relevant parts of the statutory guidance.

After all, standard letters are no panacea for good decision-making. A letter is only as good as how it's used.

To take just one aspect of how the sanction operates, section 193B(5) includes the following words:

This means councils will need to be satisfied that the applicant deliberately and unreasonably refused to take a mandatory step both:

• before the warning notice is given, and
• once a reasonable period has elapsed since the warning notice.

In practice I suspect this will usually require a conversation with the applicant before the warning notice and before the discharge notice.

Homeless officers will need to establish the reasons why a step hasn't been taken. The explanation given by the applicant will be relevant to whether:

• the applicant did in fact deliberately refuse to take the required action, and
• whether the refusal was unreasonable in all the circumstances.

The requirement to address what happened both before and after the warning notice has another implication. The reasons (for concluding the refusal was deliberate and unreasonable) might potentially need to be different in relation to the two refusals, for example if the applicant's justifications for the actions not being completed differed during the two conversations.

Establishing the facts

Another issue that's potentially problematic for council officers is that they'll often be relying to large extent on the applicant's account of events. As stated above, a decision-maker will usually need to obtain the applicant's explanation as to why a particular step in their housing plan hasn't been completed. For example, why didn't they attend appointments arranged with the support service they were referred to?

If a decision-maker doesn't wish to accept the applicant's account then they'll need alternative facts to support their conclusion. They'll also need to give reasons why they've concluded that the applicant's account is not accurate (or why their assertions aren't accepted).

Of course, the tasks necessarily involved - including inquiries and drafting two notifications - will take a considerable amount of time. Time that you may think would be more productively spent helping the applicant obtain suitable housing.

For this reason I've lost count of the number of homeless managers who've told me they think the sanction shouldn't be used, or used only in exceptional circumstances.

Guidance

As one would expect given the emphasis in the revised scheme on the importance of helping applicants, there's quite a lot of statutory guidance about non-cooperation (found towards the end of Chapter 14 of the Code of Guidance).

It's recommended that local authorities should:

• Make reasonable efforts to obtain the applicant's co-operation, including by trying to understand their reasons for not co-operating (para 14.50).
• Review the assessment of the applicant's case and the appropriateness of steps in the housing plan before issuing the pre-discharge warning notice (paras 11.33 and 14.50).
• Ensure the steps in the housing plan are reasonable (para 15.53)
• Explain the consequences of not co-operating before issuing the warning notice (para 14.50).
• Alert any other organisations that are supporting the applicant as soon as possible, and seek to involve them in supporting the applicant, to try and resolve the non-cooperation (para 14.51).
• Take into account any particular difficulties the applicant may have in managing communications when deciding if a failure to take a step is deliberate and unreasonable (para 14.52).
• Ensure the applicant understands what is required of them (para 15.53).
• Consider potential reasons for the applicant not taking the steps in their housing plan (e.g. ill-health, lack of support, communication difficulties etc.) (para 15.53).

The Code also suggests, by way of example, that:

Homeless officers will want to make sure when ending the duty that they've demonstrated they've had regard to these specific recommendations when they're relevant in the case at hand.

Need for a procedure

It's important to recognise that councils will need adopt a procedure governing the non-cooperation sanction before you can end the duties on this basis (see Art.2 of the Homelessness (Review Procedure etc.) Regulations 2018).

The procedure may be very short, not least because the only statutory requirements are those set out in Article 3 of the regulations.

However, managers might also wish to emphasise for staff those matters set out in the guidance and the need to generally only use the sanction as a last resort.

Managers might even want to include a procedural requirement that the caseworker obtains permission from a senior officer before the warning notice is given. This could avoid a lot of wasted effort and time, for example if the homeless officer falls at the very last hurdle, because another officer won't 'sign off' the discharge decision.

(Also, it would remiss of me if I didn't point out that I can quote for drafting such a procedure ;) )

Repeat applications and additional decisions

The problems councils may potentially encounter when applying the non-cooperation sanction don't just concern navigating the statutory definition and the time such decisions will take.

For applicants owed the prevention duty it would appear they can just re-apply when they become homeless (under 'the facts are not the same' rule from R v Harrow LBC ex p Fahia [1998] 1 WLR 2396; see also the Code at para 14.47).

The only class of applicants for whom sections 193B and 193C appear to provide the kind of sanction one might expect are those who are homeless (i.e. owed the relief duty). But then only some of them.

When ending the 'relief' duty an additional layer of complexity arises because the council must also decide if the applicant has a priority need, and if so whether they became homeless intentionally.

So, for those who have already become homeless, exercising the non-cooperation sanction actually requires two decisions (this is why four different letters for ending the relief duty are listed above).

The decision on priority need and intentionality will determine whether the applicant is owed another duty when the relief duty ends.

There are three possibilities. When the relief duty ends applicants may be owed:

• an ongoing accommodation duty under section 193C(4) (if they have a priority need and became homeless unintentionally)
• a short period of accommodation under section 190 (if priority need, but intentional), or
• no duty (if not in priority need).

So, for those who became homeless unintentionally and have a priority need, the application can't be closed down. Instead they must continue to be secured accommodation under section 193C(4) of the Housing Act 1996 (instead of being owed the main housing duty).

The grounds for ending this new 'non-cooperation housing duty' are broadly similar to those for ending the main housing duty (which the council avoided by virtue of the non-cooperation decision). However the local authority will still be able to make a final offer of an assured shorthold tenancy with a fixed term of six months.

There is also the ability to de-prioritise such cases for social housing. But unless there's a ready supply of suitable private tenancies which can be offered to such applicants, there's a risk that families who haven't cooperated will simply languish in temporary accommodation. Councils will need to consider their ability to discharge the s.193C(4) duty, other than by an offer of social housing before de-prioritising this category of applicants under the allocation scheme.

In addition, the discharge grounds for the new s.193C(4) duty curiously don't allow a council to end the duty when the applicant has refused an offer of alternative temporary accommodation.

In summary therefore, even if a council seeks to sanction priority need applicants, not much is gained (by the council) or lost (for the applicant).

For the reasons set out above it will be very surprising if this method of ending homelessness duties is extensively used.