The freeze on possession hearings is finally starting to thaw – but how will the courts cope with the huge backlog of cases? Will mediation, online hearings, or a dedicated housing tribunal make a difference? In the first of a series of articles from 42BR Housing, looking at the potential solutions, Catherine Urquhart analyses the mediation pilot scheme. Read more >
Mathew McDermott discusses a recent case on the service of notices in prosecutions for statutory nuisance under the 1990 Act. Read more >
On 3 April 2018, the Homelessness Reduction Act 2017 commenced, imposing a number of new duties on housing authorities to provide early intervention, in order to prevent homelessness. The Act makes significant amendments and additions to the Housing Act 1996.
The key elements of change are:
Section 175 of the Housing Act 1996 defined a person as threatened with homelessness if they were to be homeless within 28 days. This has now been extended in two ways:
The period is lengthened from 28 days to 56 days, obliging a housing authority to engage Part 7 of the Housing Act 1996 at a much earlier stage; and
People who have received a valid notice under s.21 of the Housing Act 1988, which is due to expire within 56 days, must be treated as being threatened with homelessness. This removes the practice of housing authorities of requiring people to come back when they have an eviction notice from their landlord.
Information and advice
Section 179 of the Housing Act 1996 provided a general duty for housing authorities to ensure that advice and information was available to people within their district free of charge. Under the amended s.179, the duty is broadened to a duty not only in relation to general advice, but also advice that is tailored to meet the needs of particularly vulnerable groups.
The specific advice that housing authorities are expected to provide will concern: tenants’ rights and rights of occupation; what to do about harassment and threats of illegal eviction; rights to benefits, including assistance with making claims as required; how to protect and retrieve rent deposits; rent and mortgage arrears; how to manage debt; help available to people at risk of violence and abuse; grants available for housing repair and/or adaptation; how to obtain accommodation in the private rented sector – e.g. details of landlords and letting agents within the district, any accreditation schemes, and information on rent guarantee and deposit schemes; how to apply for social housing; and how to access shared-ownership or other low-cost home ownership schemes.
The newly drafted s.179 also extends a discretion to housing authorities to prevent homelessness by the provision of a grant or a loan, by providing access to local authority accommodation, by providing furniture or other goods either by gift, loan or otherwise, and by making available local authority staff to assist applicants in avoiding homelessness.
Section 3 of the HRA 2017 has added a new s.189A to the Housing Act 1996. This provides a two-step process: first, to carry out an assessment, and second, to agree steps to take to prevent or relieve a person’s homelessness – the personalised housing plan.
If the housing authority are satisfied that a person is homeless, or threatened with homelessness, and eligible for assistance, then they must make an assessment of the applicant’s case. The assessment should ideally be carried out at an interview, but the authority are free to tailor provision of this service to the applicant’s needs.
The assessment must determine: the circumstances of the person’s homeless (why they are homeless), the applicant’s housing needs (the size and type of accommodation they will need), and any support needs of the applicant and their household.
Following the assessment, the authority must work with the applicant to agree steps which will form the personalised housing plan.
The duty to assess will only come to an end when the housing authority has determined that it owes no duty to the applicant. It is an ongoing process, which must be kept under regular review.
The personalised housing plan contains the steps that the applicant is recommended to take, and is required to take, to prevent or relieve their homelessness. It also contains the steps that the housing authority will take to assist the applicant.
The plan is entirely personal to the applicant. The steps should be entirely practical and realistic, such as attempting a reconciliation to help a person stay in the family home, or providing sanctuary measures to a person at risk of violence.
The plan should be agreed between the applicant and the housing authority. If it cannot be agreed, this has to be recorded in writing, and the housing authority will impose a personalised housing plan on the applicant.
Section 195 of the Housing Act 1996 provides the ‘prevention duty’. This places a duty on housing authorities to work with people who are threatened with homelessness within 56 days and are eligible for assistance, to help prevent them from becoming homeless.
The first priority is to keep people in their homes; if this is not possible, then to move the applicant to a suitable property in a planned way. The housing authority cannot refer an applicant to another housing authority during the Prevention Duty, even if the conditions are met.
If a housing authority is successful in assisting an applicant to prevent homelessness, but the applicant’s needs are such that there is a continuing risk of homelessness, then the authority will want to work with other agencies to ensure that support is put in place to assist that person for the future prevention of homelessness.
Housing authorities are not entitled to operate a blanket policy to end the Prevention or Relief Duty after 56 days where there is a discretion to extend it, and the circumstances are such to warrant it, for example if a person has received a s.21 notice.
Section 189B of the Housing Act 1996 sets out the Relief Duty. This requires housing authorities to help people who are homeless and eligible for assistance to secure accommodation.
The housing authority must take reasonable steps (according to the housing needs assessment) to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least 6 months. The duty does not engage if the housing authority have referred the applicant to another authority.
If the authority are satisfied that the applicant is homeless, and eligible for assistance, and in priority need for accommodation, then the authority are obliged under s.188(1) to provide interim accommodation whilst the Relief Duty is fulfilled.
If a housing authority is successful in assisting an applicant to prevent homelessness, but the applicant’s needs are such that there is a continuing risk of homelessness, then they will want to work with other agencies to ensure that support is put in place, to assist that person for the future prevention of homelessness.
A housing authority does not have to directly secure accommodation, though it can do where appropriate. This appears to import a type of discretionary housing provision to Part 7.
The Relief Duty comes to an end after 56 days (s.189B(4)). If the housing authority has the information it requires to make the s.184 decision on day 57, it should not delay in notifying the applicant. However, if further inquiry is required then the housing authority has a maximum of 15 days, after the 56 days, to notify the applicant of its s.184 decision (see Code of Guidance paragraph 14.16).
Deliberate and unreasonable refusal to co-operate (sections 193B and 193C)
Both the Prevention and Relief Duties can be brought to an end under s.193B and s.193C if an applicant deliberately and unreasonably refuses to take any of the steps that they agreed to take (or the housing authority set out for them to take where agreement could not be reached) in their personalised housing plan.
The housing authority must issue a warning notice, which warns the applicant that the duty will come to an end if they continue to refuse to co-operate, and which warns the applicant of the consequences, including the applicant not being owed the full s.193(2) duty, but rather a temporary duty if they were otherwise eligible. Sufficient time should be given to allow the applicant to rectify the situation.
Housing authorities are required to develop a procedure to be followed when issuing notices bringing their prevention or relief duties to an end under s.193B(2). The Homelessness (Review Procedure etc.) Regulations 2018 govern the decisions to issue a notice ending the Prevention and Relief Duty.
There are two types of referral in the new legislation: the duty on a ‘specified public body’ to refer to a housing authority a person they believe is homeless or at risk of homelessness, and a referral duty between housing authorities when an applicant has no local connection to an area.
Where a “specified public authority” considers that someone they are working with is or may be homeless or threatened with homelessness, they must refer that person’s details to a housing authority, but only if the person agrees to the notification being made.
Further details about what is meant by “specified public authorities” will be set out in regulations.
How the duty works between housing authorities in practice will be determined in each local area. For example, housing authorities may want to develop standard referral mechanisms or forms, and public bodies may want to undertake training to support them in identifying people who are homeless or threatened with homelessness.
The key principle in this legislation is the prevention of homelessness. The emphasis on advice, information and support should empower potential homeless applicants to prevent their own homelessness. However, for many, a greater need for practical support from the housing authority will be required.
The new duties create an enormous challenge to housing authorities. A culture change is required, to adapt to the new duties. The old legislation invited ‘gate keeping’, to keep homeless applicants from achieving a route into the scarce supply of social housing. The new legislation invites an infinite number of opportunities for housing authorities to avoid having to make a s.184 decision, by preventing and relieving a person of their homelessness, whilst preserving the main housing duty for the most acute cases.
DISCLAIMER: This bulletin is no more than a summary of the Act, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.
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