Ending the interim accommodation duty: notification requirements

The interim duty is the first accommodation duty that councils may owe to someone who has applied for help because of homelessness.

The duty is owed if the council has reason to believe that the applicant may be homeless, may be eligible (on immigration grounds) and may have a priority need.

As the name suggests the purpose of the duty is to provide accommodation on an interim basis. The duty continues while the council undertakes inquiries to determine what substantive duty the applicant is owed.

A key change under the Homelessness Reduction Act 2017 was to introduce a new stage - the relief duty - into the application process. If the council is satisfied someone is homeless the relief duty is owed for an initial period (providing they are eligible for assistance and their case is not being referred to another council). It requires the council to take reasonable steps to help the applicant find suitable accommodation. If homelessness is relieved during the first 56 days the longer-term 'main housing duty' will not be owed.

The introduction of the relief duty was accompanied by changes in the rules governing the end of the interim accommodation duty. The discharge grounds for ending interim accommodation are different to those for ending relief. Sometimes the two duties end simultaneously. But sometimes they don't.

The question of whether the interim duty has ended used to be straightforward. Basically you asked "has the council notified a decision about what duty is owed?"

However, the amended version of section 188 of the Housing Act 1996 effectively provides four different grounds for ending the accommodation duty.

In each of the four circumstances the applicant must be notified of certain things. Those things differ according to which discharge ground applies.

In R (Mitchell) v Islington LBC [2020] EWHC 1478 (Admin) the Administrative Court was asked to settle a dispute about whether the council had complied with the notification requirements.

Facts

The facts of the case were pretty straightforward.

The applicant, Mr Mitchell, was a 30-year-old single male. He was of no fixed abode, so the council accepted the relief duty.

Mr Mitchell also suffered from various medical issues. The council accepted that these might render him vulnerable. The interim duty was therefore owed and the council provided temporary accommodation (vulnerability being one of the priority need categories).

On 5 October 2019 the council completed their inquiries and notified Mr Mitchell of their decision. They were satisfied he did not have a priority need.

However, the council did not yet have grounds for ending the relief duty. This was because:

• 56 days had not elapsed since they were first satisfied he was homeless.
• The steps they had taken had not been successful in helping Mr Mitchell secure suitable accommodation, and (presumably)
• None of the other grounds for ending relief applied (which are set out at s.189B(7) and (9)).

The council assumed that it had ended the interim duty by notifying the non-priority decision. This assumption was initially shared by Mr Mitchell's advisors.

On 14 October 2019 Mr Mitchell's temporary accommodation was withdrawn.

On 8 November 2019 solicitors for Mr Mitchell sent the last in a series of three pre-action letters. Having previously requested that the council exercise it's discretion to accommodate pending review, they now asserted that the interim duty had not actually ended. On this basis they asked for accommodation to be provided.

The council did not agree, and so Mr Mitchell applied for judicial review.

Tortuous

At this point it's worth noting that the way in which the s.188 discharge grounds have been drafted is pretty tortuous.

When I'm training housing officers about ending duties I usually suggest they 'go to the source' by reading the relevant provisions in the Act. After all, the legal test you're obliged to apply is set out in the legislation.

The question of whether the council can legitimately claim to have ended a duty usually boils down to:

• Whether one of the statutory reasons for ending the duty (a "discharge ground") applies on the particular facts; and
• Whether they've complied with all the related requirements, e.g. notifying the applicant, including certain information in the notification letter etc.

However, while those parts of the Act dealing with discharge are usually pretty easy to read and understand, I'd hesitate to tell people to read subsections (1ZA) and (1ZB) of section 188. You might even say that they're an object lesson in how not to draft legislation if you want it to be user-friendly.

So, rather than just reproduce the statutory language, let's have a go at explaining how the interim accommodation duty ends.

For applicants like Mr Mitchell, where the council have made a negative priority need decision, you're obliged to consider subsection (1ZA).

This subsection provides two alternative tests.

The first possibility is that the council have also decided that they don't owe the relief duty. In this situation they can end the interim duty by notifying the applicant of that decision (that the relief duty is not owed).

However, this didn't apply in Mr Mitchell's case. The relief duty continued after he was notified that he did not have a priority need.

Subsection (1ZA) provides for a second possibility. This is where, in addition to a non-priority need decision having been made, the first possibility above does not apply, i.e. the council has not made a decision that the relief duty is not owed.*

Issue

The court in Mitchell was concerned with this second limb of subsection (1ZA), which states:

In other words, the interim accommodation duty ends when the applicant is notified that the council has decided that, when the relief duty ends, they won't be owed the main housing duty or s.190 duty (the duty owed to applicants who have a priority need but became homeless intentionally).

The problem for the council was that their letter of 5 October 2019 did not explicitly inform Mr Mitchell that he would not be owed the s.190 or s.193 duty (when the relief duty ended in due course).

The closest they came to it was where the letter stated:

The council invited the court to consider previous case law where, in relation to the main duty ending, the courts had held that councils are not required to slavishly adhere to the Act by reproducing the statutory language (Omar v Birmingham CC [2007] EWCA Civ 610).

I have some sympathy for the council's position here. Given that Mr Mitchell had been found not to have a priority need, it was an inevitable consequence that he would not be owed either the main duty or s.190 duty. And the applicant had been informed that temporary accommodation would no longer be provided.

Decision

Unfortunately for the council the Administrative Court did not consider that the contents of their decision letter were sufficient.

The court observed that the effect of subsection (1ZA)(b) is clear:

The letter of 5 October 2019 did not do this.

The council's argument that the applicant was told everything he needed to know overlooked, according to the court, what is expressly required by the Act.

The judge observed that, given the parallel duties of relief and interim accommodation, it is an understandable requirement that the applicant must receive notice of a decision that makes reference to the continuing relief duty. This provides a safeguard against the applicant wrongly assuming that the relief duty has ended. Potential prejudice to the applicant is prevented. (Although interestingly the judge acknowledges, at para 65, that "an applicant may not derive any particular benefit from detailed recitation of statutory provisions.")

In these circumstances, the observations in Omar were held not to be directly relevant. In that case the Court of Appeal was considering a different statutory provision (s.193, not s.188 in its amended form) and a different question (whether the substantive requirements for an offer of accommodation had been met). Moreover, care must be taken to avoid interpreting Omar as having a wider application than intended (for which see Ravichandran v Lewisham LBC [2010] EWCA Civ 755, where it was held that Omar was confined to its own facts).

Similarly, R (Faizi) v Brent LBC [2015] EWHC 2449 (Admin) (a case about when the main duty ends) did not assist the council.

The council also sought to rely on paragraph 15.9 of the Code of Guidance. This states:

The court observed that Paragraph 15.9 is probably meant as a summary. It follows 15.8, which explains the effect of subsection (2ZA).

It is the statutory requirements which determine the issue, not any summary of them in the guidance. In so far as the guidance might be interpreted to suggest that a s.184 decision, in and of itself is sufficient in a Mitchell-type case, it is wrong.

Furthermore, subsections (1ZA) to (1A) identify the circumstances in which the duty ends, regardless of any review request. (In Mr Mitchell's case the council upheld the non-priority decision on review on 16 March 2020, the week before the hearing. However, it was not until early June 2020 that they notified him that the relief duty had ended, or that the s.190 and s.193 duties would not be owed).

If it had been Parliament's intention that a section 184 decision was sufficient, subsection (1ZA) could have articulated this.

Accordingly the court held that the interim accommodation duty had continued, notwithstanding notification of the section 184 decision.

Relief was limited to a declaration that the council's letter of 5 October 2019 did not bring the s.188 duty to an end (given that, by the time the judgment was handed down, the interim duty had been brought to an end, via notification of the end of the relief duty).

Lessons

Admittedly this case concerns a narrow point about what information a particular notification must include.

It changes nothing (assuming councils appreciated how section 188 changed for applications from April 2018).

Councils can still exclude applicants from interim accommodation during relief if it's decided they do not have priority. (Mr Mitchell's solicitors had asserted in pre-action correspondence that the end of relief must be notified to end the accommodation duty. However, this position was abandoned).

As such, this case is the kind of highly technical challenge that I suspect is loathed by many housing officers.

But it does serve to illustrate that those responsible for statutory homelessness services should check that decision letters meet the relevant statutory requirements.

When doing this it's always wise to get legal advice. (Dare I say, there are also some tried and tested template letters out there).

Staff should also be briefed on the discharge grounds which apply for each duty, how they operate and potential pitfalls.

Another way

Having said all this it's surprising that Mr Mitchell's case got to the Administrative Court, even more so to a hearing.

It wasn't the case that the council were prevented from ending the interim duty. The mechanism under subsection (1ZA) remained available. It was just that the council had failed to include the required information.

When the council had been alerted to its error by the pre-action letter on 8 November 2019 it could have simply notified the applicant that neither the main housing duty or s.190 duty would be owed (as the judge observes at para 76). This would have had the effect of bringing the interim accommodation duty to an end.

I imagine that this made the fact that the applicant was awarded his costs (see paras 84 and 85) pretty galling. Particularly since Mr Mitchell obtained no practical benefit from the proceedings. Applying the 'balance of convenience' test, an application for interim relief had been refused on 4 December 2019. This was because Mr Mitchell had been staying with his brother since the temporary accommodation was withdrawn.

Variations on a theme

There are other circumstances in which councils can unwittingly fail to end the s.188 duty.

The third discharge ground, set out at subsection (1ZB), applies where subsection (1ZA) does not apply, i.e. the council has not decided that the applicant does not have a priority need.*

Here, the s.188 duty ends on the later of:

• The relief duty ending or the council notifying the applicant that they have decided the relief duty is not owed (whichever applies), and
• The council notifying the applicant of their decision as to what homelessness duty (if any) is owed when the relief duty ends.

For example, the accommodation duty won't have ended if:

• A final offer (as defined in section 193A) is made to end relief, and
• The applicant refuses the final offer,

but:

• The council has not notified the applicant of its decision as to what duty is owed when the relief duty ends (s.188(1ZB)(b)).

The latter notification is required even though the relief duty will end by virtue of the final offer being refused (s.193A(2)).

Lastly

The fourth ground for ending the s.188 duty follows on from the previous example.

It comes into play if, having refused a final offer, an applicant requests a review of the suitability of the accommodation offered.

In these circumstances the interim duty does not end until a review decision is notified (s.188(2A)).

Resource

Finally, if you're looking for more information about the interim accommodation duty, you can download, for free, the relevant chapter from my homelessness training notes here (at least at the time of writing; scroll to the bottom of the page).

*Don't you just love double negatives? Blame the Parliamentary draftsman, not me.