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Part 2 of the Housing (Wales) Act 2014 (HWA 2014) makes provisions in relation to homelessness. Chapter 1 of Part 2 explains that there is a duty on local housing authorities to carry out a homelessness review and formulate a homelessness strategy based on the results of that review. The review must include a review of:
- the levels, and likely future levels, of homelessness in the local housing authority area,
- the activities carried out in the local housing authority’s area that aim to:
- prevent homelessness,
- ensure that suitable accommodation is or will be available for those who are homeless, and
- ensure that satisfactory support is available to those who are homeless.
In addition, a review of the resources available to the authority must be included within a review. The results of this review must be published, and made available on the local housing authority’s website, to any member of the public who asks for a copy, and at the principal office for inspection at all reasonable hours (section 51(2)).
In 2018, each Welsh Local Authority complied with its duty under Part 2 of the HWA 2014 by adopting a new four year strategy to tackle homelessness in their respective authorities. Each Local Authority must renew its homelessness strategy in 2020 (and every four years thereafter) to comply with the duty set out at section 50(2) of the HWA 2014.
Under section 52, a homelessness strategy, is a strategy with the following objectives: preventing homelessness, providing suitable accommodation and providing satisfactory support to people who are or may become homeless, within the local authority’s housing area. More detailed objectives may be pursued, and a strategy may also include provision relating to the specific action which the authority expects to be taken by any public authority or voluntary organisation, who are capable of contributing to the achievement of those objectives, subject to the approval of the body or person concerned (section 52(3)). A homelessness strategy must also include details on action to be taken in relation to individuals who may be in particular need of support. These include people who are leaving prison, care, the armed forces and hospital after receiving medical treatment for mental disorder as an inpatient. People receiving mental health services in the community may also be in particular need of support.
A local authority must consult other relevant bodies before a strategy is adopted or modified, and the strategy should be published in the same way as a review is published, by being made available to members of the public (section 52(9)). The strategy must then be kept under review (section 52(7)).
Chapter 2 places certain duties on local authorities to help people who are homeless or threatened with homelessness in certain circumstances. In assessing its duty the local authority will have to take into account eligibility, homelessness, priority need, intentional homelessness and local connection. The introduction of WA 2014 has the effect that the Housing Act 1996 (Part 7) which previously applied to Wales, now applies only to England. There is considerable case law in relation to homelessness, this paragraph focuses on the relevant legislation.
Section 61 of HWA 2014 states that Schedule 2 to the Act determines whether an applicant is eligible for help. Paragraph 1(1) of Schedule 2 provides that a person is not eligible for assistance under Part 2 of the Act, if he or she is a person from abroad who is ineligible for housing assistance. Subsection(2) provides that a person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he or she is of a class prescribed by regulations made by the Welsh Ministers. The function of making regulations was originally a function of the Secretary of State but has transferred to the Welsh Ministers. However, this function is exercisable concurrently with the Secretary of State in relation to Wales. This means either the Welsh Ministers or the Secretary of State may exercise the function. In general ‘other persons from abroad’, i.e. those who are not subject to immigration control, are eligible for housing assistance, unless they fall within a class prescribed by the Welsh Ministers as ineligible (see paragraph 1(4)). The Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014 are the applicable regulations in Wales.
Section 60 of HWA 2014 provides that a local authority must secure that information and advice about homelessness and the prevention of homelessness is available free of charge to any person in its area. The service offered by a local authority must include, in particular, the publication of information and advice on the system provided for by Chapter 2 and how the system operates; whether any help for people who are homeless or may become homeless is available in the authority’s area; and how to access the help that is available (section 60(2)). The local housing authority must work alongside other public authorities, voluntary organizations and other persons, to ensure that the service is designed to meet the needs of groups at particular risk of homelessness. Such groups include people leaving prison or youth detention accommodation, young people leaving care, people leaving the regular armed forces, people leaving hospital after medical treatment for mental disorder as an inpatient, and people receiving mental health services in the community (subsection (4)). The service required by section 60 may be integrated with the service required by section 17 of the Social Services and Well-being (Wales) Act 2014, under which local authorities are required to provide information and advice relating to care and support (section 60(6)).
Homeless or threatened with homelessness?
Section 55 of HWA 2014 outlines when a person is homeless or threatened with homelessness. A person is homeless if they, together with anyone who normally resides with them, have no accommodation in the UK or elsewhere which they have a legal right to occupy. A person is also homeless if he or she has accommodation but cannot secure entry to it, or the accommodation is a moveable structure, vehicle or vessel adapted for human habitation (such as a caravan or house boat) and there is no place where it can be placed in order to provide accommodation.
A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for that person to continue to occupy. The Code of Guidance for Local Authorities on Allocation of Accommodation and Homelessness (Code of Guidance) provides guidance to local authorities on when it might not be reasonable to occupy accommodation, and there is also case law on this subject.
Section 57 of HWA 2014 also specifically provides that it is not reasonable for a person to occupy accommodation if it is probable that this will lead to the person, or a member of the person’s household, being subjected to abuse. A member of the person’s household includes someone who normally resides with them as a member of his or her family, or any other person who might reasonably be expected to reside with them.
For the purposes of section 57, “abuse” means physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. “Domestic abuse” occurs where the victim is associated with the abuser (section 58). The Housing Act 1996 previously referred to “violence”; but this has now been changed to “abuse” to ensure that the Act is not restricted to physical violence.
Section 57(3) of HWA 2014 also provides that in determining whether it is reasonable for a person to continue to occupy accommodation, local authorities may have regard to the general housing circumstances prevailing in the area. A Local Authority may also have regard to whether or not accommodation is affordable for that person. The Code of Guidance states that this could include considering physical conditions, overcrowding, and the type of accommodation.
A person is threatened with homelessness if it is likely that the person will become homeless within 56 days (section 55(4) of HWA 2014).
Securing or helping to secure the availability of accommodation
Section 64 outlines the ways which a local housing authority may secure or help to secure that suitable accommodation is available for occupation by an applicant. A local authority may arrange for a person other than the authority to provide something, or it may itself provide something. Alternatively, the local authority may provide something, or arrange for something to be provided to a person other than the applicant (section 64(1)). Section 64(2) provides a list of examples of what may be provided or arranged. The examples include mediation, payments by way of grant or loan, guarantees that payments will be made, advocacy and accommodation. In addition to this, the Code of Guidance includes a list of interventions that Local Authorities ought to have in place as a minimum set of available interventions (chapter 12.13). This non-exhaustive list includes domestic abuse services, employment and training option advice, specialist welfare services for armed forces personnel, action to intervene with mortgage areas and action to support disabled applicants. Local Authorities should not be restricted to this list, and other innovative interventions based on local demand must also be identified and considered in Local Homelessness Strategies. Local Authorities must be pro-active in their utilisation of this range of interventions, and must offer support for applicants on an individual basis. Along with the local authority’s duty to be pro-active, the Welsh Ministers are also under a duty to give guidance to local housing authorities in relation to how they may secure or help to secure suitable accommodation for an applicant.
The meaning of ‘help to secure’ is defined under section 65. The authority must take reasonable steps to help, having regard to the need to make the best use of the authority’s resources. But the authority is not required to secure an offer of accommodation under Part 6 of the Housing Act 1996, or to otherwise provide accommodation. Paragraph 12.7 of the Code of Guidance emphasizes that where a duty under section 66 applies, a Local Authority has a duty to help an applicant, but this does not mean that the Local Authority has a duty to secure accommodation.
The duty under section 66 of HWA 2014 provides that a local authority must help to secure that suitable accommodation does not cease to be available for occupation if the authority is satisfied that the applicant is threatened with homelessness, and is eligible for help. The duty to help to secure accommodation under section 66 ends when the circumstances specified in section 67 arise.
There is also a duty under section 73 of HWA 2014 to help to secure accommodation for homeless applicants who are eligible for help. The circumstances in which the duty under section 73 ends are set out in section 74.
Where a person presents as homeless or threatened with homelessness to the local authority, the local authority may have a duty to provide interim accommodation whilst it considers a person’s application and decides what duty, if any, it owes to the person. Section 68 of HWA 2014 provides that interim accommodation must be provided if the local authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need for accommodation (subsection (2)).
Interim accommodation is often offered in the form of B&B accommodation, hostels or refuges whilst the local authority conducts its investigations.
Whether or not a person has priority need affects the duty the local authority will have in relation to that person. As explained above, in order for the duty to provide interim accommodation to apply to an applicant, the local authority must have reason to believe the applicant has priority need, amongst other things. The main homelessness duties in section 75 of HWA 2014 also apply only to applicants who have a priority need for accommodation.
Section 70 of HWA 2014 establishes the categories of priority need. These include:
a) a pregnant woman;
b) a person with whom a dependent child resides;
c) someone vulnerable as a result of old age, mental illness or handicap, physical disability, or other special reason;
d) homeless as a result of an emergency such as flood, fire or other disaster;
e) someone who is homeless as a result of domestic abuse;
f) 16 and 17 year olds;
g) 18-21 year olds who are care leavers or at particular risk of sexual or financial exploitation;
h) ex-service men or women;
i) a person who has a local connection with the area and is vulnerable as a result of being an ex-prisoner.
A person who resides, or might reasonably be expected to reside with any of the above.
Note that a person who is not eligible for assistance under Part 2 of HWA 2014 is not to be taken into account when assessing priority need, for example, a dependent child who was subject to immigration control and ineligible would not be classed as a dependent child for the purpose of assessing priority need. The Welsh Ministers can add or remove descriptions of persons having priority need by order under section 72.Chapter 16 of the Code of Guidance relates to priority need.
Section 71 of HWA defines who is vulnerable under section 70(1)(c) and 70(1)(j). Section 70(1)(c) relates to those of old age, mental illness or handicap or physical disability. Whereas section 70(1)(j) relates to ex-prisoners. Section 71 states that a person who is vulnerable would be less able than an ordinary homeless person to fend for himself or herself, if the person were to become street homeless. Additionally, a person who is vulnerable would suffer more harm than an ordinary homeless person would suffer. There is no equivalent definition of vulnerability contained in English legislation, and the principles established by case law are relied upon instead.
Whether or not a person is intentionally homeless will affect which duties are owed to that person under HWA 2014. There are two ways under the Act in which a person can become homeless, or threatened with homelessness intentionally: (i) by deliberate act or omission (s77(2)). This means that they must have done or failed to do something deliberately to cause their homelessness when they should have known the consequences, such as surrender a suitable tenancy or be evicted for anti-social behaviour. Alternatively: (ii) by entering into an agreement to cease occupying accommodation which it would have been reasonable for them to continue to occupy (s77(4)).
By virtue of section 78(2) of HWA 2014, when assessing an applicant for help with homelessness, a local housing authority may not have regard to whether or not the applicant has become homeless intentionally for the purposes of sections 68 and 75 unless it has decided to have regard to one or more of the categories of applicants specified by the Welsh Ministers. Section 78(1) of the Act places an obligation on the Welsh Ministers to make regulations to specify such categories. The explanatory note to the Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 outlines these duties.
The Welsh Ministers must make regulations for local authorities to have regard to intentionality for certain categories of person. It is intended that local authorities will be allowed to opt to apply the intentionality test for some or all applicants, for certain specified priority need categories. For this exception to take effect, two requirements are necessary: firstly, an applicant must be within a specific category under the Homelessness (Intentionality) Regulations, where it has been agreed that the authority should have regard to whether or not applicants have become homeless intentionally. The second requirement is that the authority has published a notice of its decision specifying the category or categories of applicants in relation to which they will consider intentionality. Welsh Ministers must receive written notice of the local authority’s decision at least 14 days before it takes effect.
Section 96(4) is relevant when a local housing authority rules that an applicant who lives with a child, is ruled to be ineligible to receive help as a result of becoming homeless intentionally or becoming threatened with homelessness intentionally. Under such circumstances the council of a county must ensure that its housing department provides the social services department with such assistance as the social services department may reasonably request (see Part 3 of Social Services and Well-Being (Wales) Act 2014).
Whether or not a person has a local connection will affect the local authority’s ability to refer the application to a different authority. Sections 80 and 81 of HWA 2014 relate to local connection. In general, where a person has a priority need and is not intentionally homeless the authority must accept the duty to accommodate that person under section 66 of HWA 2014 if they have a local connection. If the person has no local connection with the authority’s area, the authority can refer the application to an authority where the person does have a local connection. A person may have a local connection with the area of a local housing authority if the person is living or has lived there, is working in the area, because of family reasons or because of special circumstances (s81(2)).
Notification and review
Once an authority has completed its enquiries it must notify the applicant of its decision and whether any duties are owed (section 63 of HWA 2014). Applicants have the right to request a review of the decision within 21 days of being notified of certain decisions of the authority (section 85 of HWA 2014). The procedure to be followed is to be set out in regulations made by the Welsh Ministers under section 86 of HWA 2014. The current regulations are the Homelessness (Review Procedure) (Wales) Regulations 2015/1266.
The main duty
The ‘main duty’ arises in relation to a person who is eligible for assistance, homeless, has a priority need, is not intentionally homeless and is not subject to a local connection referral. The main duty is to provide suitable accommodation (section 75 of HWA 2014) until the authority ceases to be subject to the duty (section 76). Certain actions specified in section 67 trigger the cessation of the duty. This includes, amongst other things, where a person refuses certain offers of accommodation, and where the accommodation offered is likely to be available for a period of at least 6 months.