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.

 

 

Working: employed or gigging? 

We lawyers have been arguing about the status of ‘employees’ since the dawn of the first codified employment legislation in this country and the advent of the industrial tribunals. Cases such as Ready-Mixed Concrete v Minister of Pensions & National Insurance [1968] QB 497 and Carmichael v National Power Plc [2000] IRLR 43 gave us the irreducible minimum of obligations without which no contract of employment can exist.’ Factors such as the mutuality of obligations between the company and the individual, the control exercised by the ‘employer’ over the individual on a day-to-day basis, the individual’s level of integration within the company, and the economic reality of the situation. This is so vitally important because not all those ‘employed’ are in fact ‘employees’ and therefore do not have access to the same rights, such as the national minimum wage, paid holiday, sick leave, etc.

The statutory definition is set out in section 230(1) Employment Rights Act 1996 (‘ERA’). This section states: an ‘employee’ is: ‘an individual who has entered into, or works under, a contract of employment’. Section 230(2) defines a contract of employment as a contract of service.  For comparison a self-employed person may refer to themselves as working under a Contract for Service.

The Court of Appeal held in Protectacoat Firthglow Ltd v Milkos Szilagyi [2009] EWCA Civ 98 and the Supreme Court affirmed in the case of Autoclenz Ltd v Belcher and Others [2011] UKSC 41, that despite any label given to a relationship by the parties, the Court should look behind that agreement and examine the actual nature of the working relationship.

That was all well and good but in more recent years we have seen an explosion in a new type of ‘employment’, with the advent of the zero hours contract and the ‘gig economy’. According to one definition, the ‘gig economy’ is: ‘a labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs’. Taking opposing partisan viewpoints- it is either a working environment that offers flexibility with regard to employment hours, or a form of exploitation with very little workplace protection.

Recent caselaw includes Dewhurst v CitySprint UK Ltd ET 22025/2016, a first instance tribunal decision which held that Ms. Dewhurst was a worker not self-employed, and Aslam, Farrar & Others v Uber & Others ET 2202551/2015, another first instance decision which is awaiting the appeal hearing listed in the EAT in September 2017, where the tribunal determined that:

The notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous… simple common sense argues to the contrary.’

The Court of Appeal handed down judgment in Pimlico Plumbers Ltd & Another v Smith [2017] IRLR 323 earlier this year stating that Mr. Smith was a worker qualifying for sick pay rather than a self employed contractor.

At the time of writing Deliveroo’s case is being assessed by the Central Arbitration Committee with regard to the national minimum wage and holiday pay.

Yesterday, the ‘Taylor Review of Modern Working Practices’ entitled ‘Good Work’ was published. It is an extensive document that includes proposals some of which will be able to be rolled out easily and quickly, others will require extensive drafting and Parliamentary process, but it is at least perhaps an indicator of the direction of travel. Some of the key proposals in my view are:

  • Keeping the distinction between employees and workers, but renaming workers who are not employees ‘dependant contractors’ page 35;
  • Amending the legislation cited above to include the case law principles;
  • Placing more emphasis on control within the definition of worker- page 36;
  • Amending the NMW to make it clear that gig-economy workers allocated work through an app are undertaking a form of output work and will not have to be paid the NMW for each hour logged on when there is no work available- page 38;
  • Extending the right to a written statement of terms and conditions to workers as well as employees- page 39;
  • Requiring written statements to be given on day one of employment;
  • Extending written statements to include a description of statutory rights;
  • Giving agency workers the right to request a direct contract with the end user after 12 months on an assignment- page 48;
  • Giving those on zero-hours contracts the right to request guaranteed hours after 12 months;
  • Giving HMRC enforcement powers for sick and holiday pay- page 59;
  • Allowing Claimants to bring a claim to the tribunal (without an issue fee) to determine employment status as a preliminary issue prior to any substantive claim- page 62;
  • Placing the burden on the employer in the tribunal to prove that the Claimant is not an employee or worker- it is currently the other way round.

We will have to see how much of this becomes law and what the appellate courts make of the cases before them in the mean time, but it seems that there is still no clear definition of ‘an employee’ thanks to both social and technological advances.

Any one wishing to find out more about their potential employment rights, should contact Sarah Hornblower in Chambers.

Rupert Chapman

Conduct in Needs-Based Financial Remedy Cases

The issue of conduct is one often raised by litigants in financial remedy cases. The court’s treatment of it, however, is often not what the parties would wish it to be, often because the court considers the parties’ needs to be the guiding principle for consideration – one that is thought to ‘trump’ all other issues. In the recent case of R v B and Capita Trustees [2017] EWFC 33 Moor J took issue with this approach.

The case involved a 15-year relationship where all the assets (around £3.5 million) were in the wife’s name. The wife was an artist and had an interest in various dynastic trusts, on which the court did not place a value. The parties had separated in 2005 and the wife petitioned for divorce in 2010. The wife’s assets largely derived from a share in a family business set up by her father in the 1950s. The husband, however, had become involved in the running of the business during the relationship and had spearheaded a restructuring that involved the creation of various trusts in Jersey, one of which was for the sole use of the wide and the children and was a post-nuptial settlement within the terms of the Act. He continued in this role after separation.

That role came to an end when the CEO of the company discovered that H had incurred liabilities of £22 million in the business. There was a further dispute over the funding of the purchase of a property in France, intended as a hotel development, and over monies provided by the wife to her new partner. The litigation was extensive, drawing in the parties’ adult children and including a lengthy trial on the preliminary issue of the ownership of various assets.

It was agreed by all parties that this was a needs case given the source of the assets, but each party made allegations against the other; the husband alleged a wanton dissipation of assets to her partner, while the wife alleged that the husband had incurred huge liabilities either by fraudulent or incompetent mismanagement of the business, as well as litigation misconduct.

Moor J, in a lengthy judgment handed down after hearing the parties’ evidence, considered the role of conduct in general, and particularly in needs cases. He held that;

  • As had been established in previous cases, including Miller/McFarlane [2006] UKHL 24, conduct would be relevant in only a few cases, and only where it was both obvious and gross.
  • The burden of proof is on the party seeking to allege conduct, and the standard of proof is the usual civil standard. The seriousness of the allegation makes no difference to the standard of proof, and the inherent probabilities are merely something to be taken into account.
  • The wanton dissipation of assets by one party, however, would not be ignored. Applying Martin v Martin [ [1976] Fam 335 ‘A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.’ The Judge held that ‘if a spouse has created unnecessary debt or incurred unnecessary liabilities, this detracts from his or her contributions as well as meaning that the assets have been reduced. Moreover, provision needs to be made for liabilities that have not yet been discharged’ (citing Charman v Charman [2006] EWHC 1879).
  • Conduct was not only an issue for sharing cases, but was relevant to needs cases as well. For example, the conduct might be such as to prevent the court from satisfying the needs of both parties. In such a case, the court ‘must be entitled to prioritise the party who has not been guilty of such conduct’ (para 85).
  • In doing so, the court might reduce the award to the offending party from the standard provision of meeting their reasonable requirements generously assessed to ‘something less’. While the issue should not reduce a party to a position of real need (unless there is no alternative), it could be relevant to the level of need to be met. By implication, needs would be assessed in a more parsimonious way where that party is guilty of conduct which could not be ignored.
  • Where a party adopts a litigation strategy ‘so extreme that it would be inequitable to disregard it’ the way he had conducted proceedings could be reflected in the award made to him even in a needs case (applying M v M (Financial Provision: Party Incurring Excessive Costs) [1995] 3 FCR 321). In most cases this should be reflected in a costs order, but in an exceptional case the award itself could be effected.

The Judge found that the husband was a liar in several respects. While he had made contributions to the marriage that were significant, including through his work in the business, he had engaged in deliberate and fraudulent deception in hiding two loans of more than £7 million from the wife and her family, through his general management of the business and of his own finances. He had failed ever to declare any income tax to HMRC, but rather he had used the family business to fund his lifestyle, taking whatever he needed from wherever he could get it ‘regardless of the ownership structure’. His conduct was clearly so severe that it would be inequitable to disregard it. The wife, on the other hand, had been reckless in her dissipation of assets to her partner, which was not conduct, but rather a significant liability set off against her significant contributions through family money. The result was a potential liability to the business and trusts of between £9 million and £12 million, largely in tax liabilities incurred because of the parties’ (mostly the husband’s) cavalier treatment of the assets.

The husband was given a capitalised maintenance fund of £839,000, based on half the income that the wife would receive each year from the family business (she received around £100,000 net pa). There was to be no pension provision even though the husband had no state pension, having never had a national insurance number or paid any tax – the wife should not fund his misconduct. He would receive £411,000 to pay some of his personal debts of £1.35 million (excluding £950,000 in costs), and no other capital for his housing needs – the judge considering that because of his conduct there was insufficient to meet both parties’ reasonable needs. The wife retained the balance and all of her interests in the various trusts.

The judge considered the costs to be completely out of control and the litigation to be ‘financial suicide’. The preliminary issue hearing itself had ‘achieved nothing apart from the waste of over £2 million in costs’, caused entirely because of the husband’s irresponsible conduct of the family finances. The husband’s overall legal costs were £3 million.

The lesson of this case is principally that where a party is guilty of gross and obvious conduct, particularly where it substantially reduces the available assets they can expect either to have their reasonable needs assessed at the lowest end of the spectrum, or to have them unmet where the other party’s needs can only be met in this way. In exceptional cases, this will extend to litigation conduct as well as more general financial conduct.

Rupert Chapman