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The Homelessness Reduction Act 2017, initial thoughts

Last week, the Department for Communities and Local Government reported an increase of 33,000 children being housed by councils in temporary accommodation since mid-2014, representing a rise of 37%.  This equates to an average of 900 extra children each month.  In the circumstances, it is easy to appreciate why the department has described the situation as ‘unsustainable’.

Without wishing to add further to the concern, it is difficult at this juncture not to reflect upon the 2017 Homelessness Monitor, which suggested that 50% of councils and, alarmingly, 95% of London boroughs reported that it was ‘very difficult’ to assist homelessness applicants to secure self-contained accommodation.  In this vein, 65% of boroughs cited a near-crippling shortage of available housing stock, although it is apparent that surging rental prices and the current state of the welfare benefits system have played their role, also.

In the circumstances, it seems like a good time to reflect upon the “impending” Homelessness Reduction Act 2017 (“HRA”).  The statute, which received assent in April 2017 and expects commencement at some (currently unspecified) point during 2018, started life as a private members’ bill catalysed out of campaigning by Crisis with support from Shelter.  As a Bill, its explanatory notes cited as a policy background that [t]he number of homeless households in England is increasing.  57, 750 households were accepted as statutory homeless and in priority need in 2015/16, up 6% on a year earlier.  The total numbers in temporary accommodation are also rising.  Local housing authorities took action to prevent homelessness for 50,990 households in April to June 2016, up 4% from 48,820 in April to June 2015.’  The guidance further acknowledged the limitations presented by restricting duties owed to applicants assessed as being in ‘priority need’, with the inevitable corollary that ‘those who do not meet the threshold for ‘priority need’ often receive little support.

Heralded by Shelter as ‘the first major piece of homelessness legislation for 15 years’, the main thrust of the Act will be to amend Part 7 of the Housing Act 1996, whilst also amending the Homelessness (Suitability of Accommodation) (England) Order 2012, by imposing duties on local housing authorities to ‘intervene earlier and take steps to prevent homelessness in their areas’, regardless of priority need or intentional homelessness.  The hope is that this will lead to a reduction in homelessness, whilst achieving financial savings for local authorities.

The statute’s starting point in this respect is to amend section 175 of the 1996 Act.  The amended s. 175(4) and (5) provide that a person will be threatened with homelessness if it is likely that (s)he will become homeless within 56 days, doubling the previous 28 day period and meaning that local authorities must work with people to prevent homelessness at an earlier stage.  Notably, the provision makes clear that the service of a section 21 notice, which expires within 56 days, will engage the duty.

The amended section 179 of the 1996 Act remodels local authorities’ “advisory services”, stipulating that each authority must provide or secure the provision of a freely available service, to advise upon preventing homelessness; securing accommodation when homeless; the rights of persons who are homeless or threatened with homelessness, and the duties of the authority; any help that is available from the authority or anyone else, for persons in the authority’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and how to access that help.  Subsection (2) et seq provides far more detail, which will add focus and scope to the advisory process.

As above, a core feature of the HRA is to improve the support that is available to applicants who have either made themselves intentionally homeless, or are not considered to be in priority need.  This is addressed by the newly imposed section 189A, which requires an authority to carry out an assessment and produce a personalised plan in respect of all applicants who are homeless or threatened with homelessness, and are eligible for assistance.

The new section 195 imposes a “prevention duty”, which will apply to all eligible applicants threatened with homelessness and will require that an authority ‘must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation’.  Notably, the duty is ‘to take reasonable steps… to secure’.

The duty will typically run for 56 days and may end in accordance with subsection (8): suitable accommodation has been provided and there is a reasonable prospect of continued occupation for a period of 6-12 months; 56 days have passed, regardless of the applicant’s circumstances (but subject to a section 21 notice being served); the applicant has become homeless (in which case, move on to the new section 189B duty); the applicant has refused an offer of suitable accommodation; the applicant has become homeless intentionally from accommodation that was made available pursuant to the exercise by the authority of its section 195(2) function; eligibility has otherwise ceased; or the applicant has withdrawn the application.  A failure to cooperate will also terminate the duty.

Section 189B applies to applicants who are already homeless and provides that an authority, having regard to its section 189A assessment, must ‘take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least… 6 months, or… such longer period not exceeding 12 months as may be prescribed.’  This will, therefore, push back the section 193 duty by 56 days.  As with section 195, there are circumstances in which the duty might be ended, as to which sections 189B(7) and (9) should be consulted (n.b. that such a decision would be susceptible to challenge by section 202).

Whilst statutory guidance is yet to be published, as is the code of practice that is referred to within the amended section 214A, it nevertheless seems that both sides of the housing law table anticipate positives arising out of the legislation.  Indeed, any sensible measures taken to reduce the number of people living without a home can only ever be a cause for celebration.  However, a considerable concern amongst local authorities faced with the prospect of implementation, aside from the obvious transitional and interpretative hurdles, will clearly pertain to funding.  It is axiomatic that for the aims of the statute to be realised to full effect, there must be sufficient funding in place.

For instance, the Local Government Association anticipates that the imposition of the prevention duty, alone, will increase the workloads of London boroughs by circa 270%.  The Association of Housing Advice Services has suggested that the financial burden to the boroughs will rest in the region of £160m.  Palpably, neither concern is likely to be dampened by the government’s promise of an additional £48m in funding (available only for the first two years following implementation), or the hope that savings might adequately offset costs before the two-year period expires.  Whilst the additional funding may well hep authorities to “hit the ground running”, they will surely be hoping that the short-term cash boost will be followed by an effective post-implementation review of funding, resources and stock, as promised by communities’ secretary Sajid Javid.

As for the costs that are likely to arise out of issues of construction and initial implementation, authorities might expect a surge in challenges to their interpretation of eligibility, “reasonable steps” and “help to secure”; and in cases of refusals to accept offers of accommodation and alleged non-cooperation.  Again, it is hoped that the anticipated explanatory notes and code of practice should help to iron out at least some of those potential areas for conflict.

Jonathan O’Neill

July 2017

Jonathan is a barrister who specialises in housing law, with particular expertise in disputes concerning possession, demotion, public law principles, human rights, equality, antisocial behaviour, injunctions, tenancy deposits, disrepair, breach of tenancy agreement and unlawful eviction.  He can be contacted via his clerk, on 01392 20 84 84.

This article has been prepared and published as a discussion document and is not to be relied upon as a source of legal advice.

 

 

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