Offer of accommodation letters - and some issues to be aware of when making offers

Types of offer

The letters fall into four broad categories, depending whether accommodation is being offered:

• to perform the s.188 interim accommodation duty
• to end the s.189B homelessness relief duty,
• to perform or end the s.193 main housing duty, or
• to end the s.193C(4) non-cooperation housing duty.

The letters

You can access the letters via the following links:

Performing the s.188 interim duty

Offer of temporary accommodation to perform the interim duty

Ending the s.189B relief duty

Final Part 6 offer of social housing
Final offer of 6-month assured shorthold tenancy

Main housing duty

Offer of temporary accommodation to perform the main housing duty
Final Part 6 offer of social housing
Private rented sector offer (12-month fixed term assured shorthold)

Ending the non-cooperation housing duty

Final offer of 6-month assured shorthold tenancy
Final Part 6 offer of social housing

Offers that aren't "final offers"

Accommodation used to end homeless duties won't necessarily be in the form of a 'final offer'. This reflects the fact that accommodation doesn't necessarily need to be secured by the council for its availability (or a refusal of it) to result in the prevention or relief duty being brought to an end (providing the relevant statutory definitions are satisfied).

No offer letter will be needed if the council wants to end the prevention or relief duty because:

• accommodation is available for the applicant (or was available and has been refused)
• the accommodation is (or was) suitable, and
• there is (or was) a reasonable likelihood that suitable accommodation will be (or would have been) available to the applicant for at least six months (i.e. under the discharge conditions set out at s.195(8)(a), s.195(8)(d), s.189B(7)(a) or s.189B(7)(c)).

In this case, the discharge of duty letters previously made available in the Resources section can be used (see the blog posts about ending prevention and ending relief).

No offer letter is needed either when ending the s.188 accommodation duty because the applicant has refused an offer or broken the rules governing the accommodation (although the above letter is available if you want to send one).

How can I download the documents?

If you're new to the website you'll need to:

• create an account with a local authority or housing association email address
• wait for your account to be approved (you'll receive a second email), and
• go to the relevant page in the Resources section (or click on the above links).

Issues when offering accommodation

The rest of this blog post highlights some issues which homeless officers should be aware of when offering accommodation.

B&B placements

My letter offering interim accommodation includes a section you can include if you're offering bed and breakfast (as defined by Article 2 of the 2003 Suitability Order) to a household including children or a pregnant woman.

This section of text confirms that B&B will only be provided for a maximum of six weeks (in line with the limitation imposed by Article 3 of the 2003 Order).

This reflects the statutory guidance, which recommends that:

In Complaint against Lewisham LBC, 17 012 265 (23 April 2018) the Ombudsman criticised Lewisham for (amongst other things) not informing the applicant in writing that B&B could only be provided for six weeks.

The Ombudsman stated:

It's also worth noting that in Complaint against Ealing LBC, 17 007 432 (17 April 2018) the Ombudsman stated that where a Council places people in accommodation it knows to be unsuitable it should advise them of this. It was also recommended that the Council should advise such households that they have a right to complain, including ultimately to the Ombudsman.

Although clearly councils should not be offering accommodation that it accepts is unsuitable.

Making the purpose of the offer clear

Clearly there are different statutory grounds under which each of the principal duties can be ended which involve offers of accommodation.

In Ravichandran v Lewisham LBC [2010] EWCA Civ 755 the Court of Appeal held, in the context of offers to perform and end the main s.193 duty, that councils should make clear to the applicant the basis upon which accommodation is being offered. Where an authority makes clear the offer is made as a final offer (under s.193(7)) they cannot subsequently treat the offer as being made under s.193(5) (ongoing temporary accommodation) and attempt to end the main duty on that (alternative) basis.

By analogy it appears that councils will need to nail their colours to the mast when proposing to end the relief duty on the basis that accommodation is available. An officer will need to decide whether or not the council has secured the accommodation and whether it constitutes a final offer as defined in s.193A(4) (the alternative grounds being that accommodation is or was available, as outlined above).

Suitability and giving reasons

Councils are not under a duty to confirm the reasons why they've concluded that a particular unit of accommodation is suitable at the time accommodation is offered (Akhtar v Birmingham CC [2011] EWCA Civ 383; and Solihull MBC v Khan [2014] EWCA Civ 41).

The offer letter doesn't therefore need to include lengthy reasons in relation to suitability, and can usually be sent using a standard format. The applicant need only be given case-specific reasons why accommodation is considered suitable when a decision to end the relevant duty is notified in writing.

The level of detail which is then required when giving reasons as to why the duty has ended will depend in large part on whether the applicant has raised specific matters in support of a contention that the housing offered in unsuitable.

Applicants will know that they can challenge the suitability of the accommodation being offered because the offer letter will tell them that they have a right to ask this issue to be reconsidered.

However, staff need to guard against complacency when deciding whether to offer a particular unit of accommodation, to avoid problems subsequently arising when trying to end the duty.

The factors that should be considered when deciding whether a particular unit of accommodation is suitable will primarily depend on:

• which duty the council wishes to end (or perform)
• the ground which the council will be using to end the duty
• specific issues that arise because of the nature of the offer (e.g. the proposed accommodation is outside the district), and
• the applicant's particular circumstances.

The applicant's needs should of course be apparent from the initial assessment and any reviews of that assessment. Having said that, applicants commonly seek to rely on matters that weren’t referred to before the offer was made.

Homeless managers need to consider how the offer process can be designed to help staff identify the relevant factors and make a lawful decision when selecting the unit of accommodation to be offered (given that detailed reasons regarding suitability don't need to be given when the offer is made). A proforma or work flow process may be required to remind staff of the issues that must be considered and to ensure their decision-making in this respect is adequately recorded.

Needless to say, if a significant proportion of offers are unsuccessful in ending the relevant duty this may reflect issues that need to be addressed. I once worked for a council where discharge of duty decisions were issued in a standard format and took no account of the reasons applicants had given for refusing housing. This resulted in 'minded to find' letters having to be issued on review as well as oral hearings needing to be offered. In short, a lot of wasted time and effort.

Better to get the process right first time, rather having to rectify matters later on.

Additional suitability requirements

Staff offering housing to end a housing duty need to identify whether the requirements contained in Article 3 of the Homelessness (Suitability of Accommodation) Order 2012 apply.

Article 3 provides that certain matters must be taken into account when deciding whether accommodation is suitable. It also provides that accommodation cannot be suitable in certain circumstances. The additional requirements largely relate to the condition of the premises and the landlord having the relevant safety certificates.

In addition, a copy of the proposed tenancy agreement must be checked and the fitness of the landlord considered.

Since the condition of the property must be checked an inspection needs to be carried out (Code, para 17.16).

However, Article 3 only applies to certain types of letting.

The additional suitability checks are required when:

• The council secures accommodation under a tenancy with a private landlord for an applicant who has a priority need, where the purpose of the offer is to discharge the prevention or relief duty.
• Arranging for a private landlord to make a final offer of a 6-month fixed term assured shorthold tenancy to end either the relief or s.193C(4) non-cooperation housing duty (a 'final accommodation offer' under s.193A(5) or s.193C(7)).
• Arranging for a private landlord to offer a 12-month fixed term assured shorthold tenancy, to end the main housing duty (a 'private rented sector offer' under s.193(7A)).

The first category may require a judgement to be made as to whether the applicant has a priority need before a decision on priority need has been made for the purpose of determining whether the main housing duty is owed.

Managers may need to review their procedures to ensure staff adequately record and evidence how their decisions are reached. And needless to say staff need a thorough understanding of the rules affecting how suitability and discharge decisions should be made.

Recording responses

It's important that the applicant's views and responses are recorded throughout the process, including:

• If the applicant responds to the offer (e.g. if they telephone having received the offer letter).
• During the viewing.
• During any subsequent discussions about the suitability of the accommodation.

Applicants’ reasons for deeming accommodation unsuitable sometimes change over time. Officers who make offers and conduct viewings should therefore be aware of the importance of capturing, in full, any concerns the applicant has regarding suitability and, if applicable, their reasons for refusing the offer.

It may be worth providing a standard form which specifically asks applicants to state their reasons when asking the suitability of a property to be reviewed.

The initial reasons given by an applicant may serve to undermine subsequent arguments, for example where it can be demonstrated that they were not initially concerned about matters that are subsequently cited and relied on.

Particular issues can arise in large authorities where the staff who offer accommodation aren't necessarily focusing on issues that might arise later on in the process and affect whether the relevant duty can be ended. If so, training and guidance is likely to be required.

Inferring refusals

Some of the grounds for ending homelessness duties require the council to be satisfied that the applicant has refused an offer of tenancy.

This sounds straightforward. However, practical difficulties often arise, most obviously where the applicant simply doesn't respond to a written offer. Staff may assume they've done enough to end the duty. However, if the applicant hasn't explicitly refused a final offer the council often won't be able to end the homelessness duty.

While my letters inform applicants that a refusal may be inferred if they fail to respond to the offer letter, it will not always be possible to infer that the applicant actually intended to refuse.

For example, an applicant may subsequently (and quite reasonably) say:

The safest course of action is always to take every effort to contact applicants who haven't responded. The aim is to ensure that an explicit acceptance or refusal is obtained wherever possible. Staff may need to chase up offer letters by phone and/or email.

Warnings in offer letters that a refusal may be inferred may nevertheless encourage applicants to engage with the council. Staff should however understand that such statements aren't a fail-safe solution for 'no contact' cases.

Some applicants will want more time to make a decision. It is good practice to warn applicants at the outset in the offer letter how long they've got for making a decision, e.g. that they'll need to accept or refuse by the end of the viewing appointment.

However, it should be borne in mind that some applicants may have good grounds for needing more time, e.g. a need to check with an occupational therapist whether they agree that adaptations are appropriate.

Councils will want to emphasise to applicants the short timescale for accepting or refusing. However we shouldn't adopt an approach that's so inflexible as to be potentially unlawful. To demonstrate that more time might be available in exceptional circumstances for making a decision, my letters include the following statement:

Receipt of final offer information before refusal

When making a ‘final offer’ councils need to ensure that the applicant receives the required statutory information before they refuse (i.e. the consequences of refusing the offer and the right to request a review of suitability).

If the offer letter may not have been received by the applicant before they refused the accommodation a duplicate may need to be given and the applicant may need to be given another opportunity to accept or refuse the final offer.

Continuing Interim duty

The Homelessness Reduction Act 2017 amended section 188 of the 1996 Act. The new subsection 2A is significant. It provides that if a final offer is made to a homeless person owed the relief duty who's being secured s.188 accommodation the applicant can effectively prolong this interim duty by requesting a review of the suitability of the property which is being offered to end the relief duty.

This doesn't however stop councils performing the interim duty by withdrawing the previous accommodation and effectively giving applicants a choice between the accommodation being offered and no alternative.

By contrast, the duty to accommodate doesn't continue if an applicant requests a suitability review when final offers are made to end the main housing duty or non-cooperation housing duty (it being only the section 188 duty that continues by virtue of 188(2A)). Similarly the s.188 duty doesn't continue if the applicant is not challenging the suitability of the accommodation but instead asserts that another required component of the discharge ground hasn't been satisfied, e.g. non-receipt of the required information before the offer was refused.

Fixed term tenancies

Given that private lettings used as final offers will be offered under a fixed term tenancy, councils would be well advised to negotiate the inclusion of a break clause. This will enable the tenancy to be terminated in the event that the applicant successfully challenges the suitability on review.

My final offer letters include the following text, to use when a private tenancy is being offered:

In conclusion

Staff need various standard letters to use when offering accommodation. However, this is no substitute for understanding the principles affecting how decisions on suitability and discharge decisions should be made.

Councils are best placed to make appropriate housing placements and successfully end duties when staff can anticipate the arguments that applicants may potentially employ.