The end of intentional homelessness for families in Wales (kind of)

The Minister for Housing and Local Government wrote to local authorities on 16 October 2019 to give advance notice that section 75(3) of the Housing (Wales) Act 2014 will be coming into force (the commencement order has yet to be published or laid before the Senedd).

[Edit 02/12/2019 - The commencement order is SI 2019 No 1479 (W263)]

Section 75(3) has lain dormant since the Act came into force in April 2015. However, it was always the Welsh Government's stated intention to bring it into effect this year, as part of its long term commitment to phase out the intentional homelessness sanction.

The policy aim is clear. The Government does not want children, young people and the unborn child to be adversely affected by the wrongdoings of their parent or guardian. After all, the worst evil of homelessness is its long term pernicious effect on children.

Young person households

Subsection (3)(e) defines those categories of homeless applicant who will escape the intentionality sanction, namely where the applicant is:

• A person with whom a dependant child resides, or might reasonably be expected to reside.
• A pregnant woman or a person with whom she resides, or might reasonably be expected to reside.
• A person who was under 21 years of age when the homeless application was made, or a person with whom such a person resides or might reasonably be expected to reside, or
• A person between 21 and 24 years of age when the homeless application was made, who was looked after, accommodated or fostered while under 18 years of age, or a person with whom such a person resides or might reasonably be expected to reside.

For convenience I'll refer to these categories of applicant as "young person households" or a "YPH applicant/case" (these terms are not used in the legislation).

Basic principle

If the council has not been able to successfully 'relieve' the applicant's homelessness in a YPH case (because no housing solution likely to last for six months was found in the first 56 days of homelessness) the applicant will be owed the highest type of accommodation duty (the section 75 duty), notwithstanding that their present period of homelessness is intentional (as defined by section 77 of the 2014 Act), assuming they remain eligible for help on immigration grounds.

In short, if a YPH applicant is still homeless at the end of the 'relief' period, they are entitled to the ongoing accommodation duty under section 75.

Subsection (3) operates as a second set of circumstances in which the full duty is owed.

This will be in addition to the existing route under s.75(2). Subsection (2) provides that the full duty is owed when, in summary, the relief duty has ended, the applicant has a priority need, they did not become homeless intentionally, and no accommodation has been secured that is suitable and is likely to last for six months.

Repeat intentionality within 5 years

However, there is a caveat.

The general idea here is that if someone is a 'serial offender', in that they become homeless intentionally again within five years, they lose the right to the full duty.

It's worth examining precisely how this operates.

Section 75(3)(f) provides an additional requirement that must be satisfied in order for the intentionally homeless YPH applicant to be owed the full duty.

The applicant will not be owed the full duty if they were previously offered accommodation by the council under the full s.75 duty, in the last five years, as the result of a previous homeless application in similar circumstances, i.e, where the applicant was previously intentionally homeless and only qualified for the main duty because of the s.75(3) gateway.

This means that an intentional homelessness decision on, say 2 December 2019, whilst not currently affecting the duty owed to a YPH applicant, could be potentially relevant up until December 2024 if a subsequent homeless application is made (and relief is unsuccessful).

This raises what I suspect will be the first issue for council decision-makers. When faced with a YPH applicant whose homelessness is potentially intentional, do you want to devote additional time and effort in making inquiries and justifying the decision in writing (so the applicant enters the full duty through the new subsection (3) gateway), when an intentional decision has no practical bearing on what duty will be owed during the present application?

I suspect one will get cases of intentionality in YPH cases that councils decide to 'let go'. After all, council staff can always exercise their discretion not to apply the sanction, and they're busy enough without taking extra time on something that's arguably of little significance. Council staff might only deem it necessary to find a YPH applicant intentional if, on a second application, it's clear their homelessness is their own fault (again).

The significance here is that without a previous intentional decision the sanction (disqualification from the full duty) won't be available.

It's also important to note that it's not "intentional homelessness within the last five years" per se that enables councils to apply the 'repeat intentionality' sanction in a YPH case.

Rather the main duty is not owed if:

• The council has decided to have regard to intentionality for the relevant priority need category (under s.78 and SI 2015 No 1265. This will have generally occurred in 2015. There must be a notice to this effect on the council's website and in interview locations).
• There has been a previous offer of accommodation.
• That accommodation was secured by the council under the full s.75 housing duty.
• That offer must have been made following a previous homeless application under the 2014 Act.
• The offer must have been made within the previous five years*, and
• The offer was made on the basis that the applicant fell within s.75(3).

Example

Take the example of a YPH applicant whose relief period ends in a few months' time, in January 2020. She's still homeless, she's priority need, but her homelessness was intentional.

Even if she received a main duty offer following a previous application, the offer won't have resulted from the subsection (3) ('intentional but you qualify anyway') provision. It only comes into force on 2 December 2019. The main duty must be accepted.

Example 2

Also, consider a woman who in 2021 is pregnant and becomes homeless intentionally. She previously applied as homeless to the same council in 2020. At the end of relief during this prior application it was accepted the applicant was vulnerable but she was found intentionally homeless.

Even though she was intentionally homeless in the last five years, on her second application in 2021 the 'second time' sanction does not apply. This is because there was no previous main duty offer of accommodation.

It can be seen from these examples that it will be practically difficult for councils to sanction YPH applicants, at least in terms of the homelessness duties owed. It will interesting to see the extent to which Welsh councils consider that such applicants should nevertheless have less priority for an allocation of social housing.

The Welsh Government is keen to stress that the numbers of applicants who benefit from s.75(3) will be small. Accordingly the change should be manageable for statutory homelessness services.

New guidance

Hopefully, the Welsh Government will be issuing timely guidance before 2 December 2019 on how s.75(3) operates.

Presumably the guidance will stress to councils the importance of informing applicants where they are being accommodated as a result of subsection (3) and explaining the potential implication if there is repeat homelessness.

It will also be important for homeless teams' records to show the route by which the full s.75 duty became owed, i.e. under:

• Subsection (2) (ordinary case), or
• Subsection (3) (YPH intentionality).

The Minister's letter also confirms:

Interestingly the statutory guidance in Wales is due to have a total rewrite. A whole new structure is to be adopted, so as to advance the policy priorities set out in the recently issued national Strategy for Preventing and Ending Homelessness.

A key thrust of the national strategy is to facilitate and improve pre-statutory prevention. The strategy quite rightly identifies that:

All local authorities, health boards and RSLs are being asked to commit to the prevention agenda.

The new draft Code of Guidance will be the subject of a consultation, possibly before the end of 2019.

Future direction

At the same time a glimpse of how homelessness policy might develop in Wales can be seen from the recent report by the Homelessness Action Group.

The HAG was set up to advise the Minister on what steps are needed to end homelessness in Wales.

The Minister clearly wants to utilise the experience and expertise of those in the statutory and voluntary sectors (the group is chaired by Jon Sparkes, Crisis CE). It's clear there's a lot of emphasis on the need to move to a 'whole system' approach, incorporating all public services.

While the first report focuses on what action is required to eliminate rough sleeping, the group will also be considering what is needed in terms of:

• Policy frameworks and approaches.
• Putting rapid and permanent rehousing at the heart of practice, and
• Promoting joined-up local partnerships.

The group have already been very busy, as evidenced by the 12 recommendations in this first report relating to rough sleeping.

Going forward it will be interesting to see how many of its recommendations become Government policy.

*The wording of s.175(3)(f)(i) in relation to when the five year period ends is somewhat curious. I suspect it means within the five year period ending on the day notification is given under section 63 of the duty owed, following receipt of the new application. One for the housing lawyers perhaps.