The Ministry of Housing, Communities and Local Government (MHCLG) has published a new Homelessness Code of Guidance together with new Regulations, which will apply when conducting homelessness reviews. Both documents will (mostly) come into force with effect from 3 April 2018, the same date as the Homelessness Reduction Act 2017 (2017 Act). They provide crucial context for all reviewing officers and legal practitioners grappling with the new homelessness regime.
In this article, all references to sections of legislation refer to the Housing Act 1996 as it will be amended by the 2017 Act.
Homelessness Code of Guidance
The new Code of Guidance (2018 Code) finally replaces the old Code (2006 Code) that had been in place since July 2006. The 2018 Code does not differ greatly from the draft published in October 2017, although a number of revisions were made following public consultation over the winter. Compared to the 2006 Code, however, there have been some significant changes.
On first glance, the 2018 Code is noticeably shorter: that is due to the disappearance of the voluminous annexes and index attached to the 2006 version. Only one annex now remains, dealing with the habitual residence test for eligibility. Some of the guidance provided within the discarded annexes has now been incorporated into individual chapters. In other cases, discussion previously contained within supplementary guidance documents has been integrated directly into the 2018 Code.
New chapters have, of course, been added to address the changes introduced by the Homelessness Reduction Act. They include:
- Advice and information about preventing homelessness (Chapter 3)
- Referrals of cases by specified public authorities to housing authorities (Chapter 4, discussed further below)
- Assessments and personalised plans (Chapter 11)
- The new prevention and relief duties, and how they may be ended (Chapters 12-14)
Chapter 16 on securing accommodation has been comprehensively revised to reflect the new duty to "help to secure accommodation" introduced by way of the prevention and relief duties. It is anticipated that the precise scope and intent of this duty will be one of the key areas of dispute under the 2017 Act.
It is interesting that this chapter advises that the duty is "intended to increase choice and control for applicants and allow the housing authority to help to resolve particular problems", not to "direct resources at securing accommodation for households regardless of what assistance they need" (§16.4). The Code also acknowledges that many local housing authorities are heavily reliant upon private rented sector accommodation to fulfil their duties, as authorities are now "encouraged to develop a private rented sector access scheme which provides opportunities for all applicants, including those who do not have a priority need, to access private rented accommodation" (§16.19).
In addition, sections dealing with applications, decisions and notifications (Chapter 18), and with reviews and appeals to the County Court (Chapter 19) have been helpfully rewritten to take account of the 2017 Act and the new Review Regulations. This guidance suggests that applicants' personalised assessments will be relevant to the review (§19.16). Reviewing officers are also encouraged to consider intervening events that occurred between the date of the original decision and the review decision, in a way which appears (or attempts) to reflect the decision in Haile v LB Waltham Forest (§19.22).
Practitioners may be assisted by a number of entirely new chapters which have been drafted to deal with cases that often cause particular difficulty, including:
- Domestic abuse (Chapter 21)
- Care leavers (Chapter 22)
- People with an offending history (Chapter 23)
- Former members of the armed forces (Chapter 24)
- Modern slavery (Chapter 25)
Where the 2018 Code retains chapters that originally appeared in the 2006 Code, revisions not only reflect the 2017 Act but also integrate many of the significant court decisions from recent years. For example:
- Chapter 5 on contracting out homelessness decisions reflects the decision in Panayiotou v LB Waltham Forest that local housing authorities may contract out their Public Sector Equality Duty alongside their other homelessness functions (§5.11)
- Chapter 6 on homelessness and threatened homelessness provides new guidance for dealing with tenants given notice of intention to recover possession, in light of the new prevention and relief duties (§§6.3, 6.29-6.38)
- Chapter 8 on priority need applies the Hotak test for vulnerability (§§8.15-8.16) and acknowledges the Equality Act duties owed to disabled persons per Pieretti v LB Enfield (§8.17)
- Chapter 17 on suitability incorporates the duty under s.11 of the Children Act 2004, per Nzolameso v Westminster CC (§17.50)
It is simply not possible within this article to survey the many individual amendments and new points of guidance contained within the 2018 Code. Suffice it to say that all reviewing officers will need to thoroughly familiarise themselves with the contents. In particular, from 3 April onwards, they should carefully consider and refer to the new Code when completing all their review decisions. It is simply inevitable that the 2018 Code will add fuel to the fire when the 2017 Act comes to be tested on s. 204 appeals and beyond, and we can expect to see detailed scrutiny of some of the key passages within the earliest test cases. Watch this space.
The Homelessness (Review Procedure etc.) Regulations 2018/223 will replace the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999/71.
The 2018 Regulations will apply to any request for s.202 review made after 3 April 2018: Reg. 1(2). However, it would appear that the 1999 Regulations remain applicable where the review was requested before that date but is not completed until later.
The Regulations do not make many substantive changes to the existing arrangements that apply where an applicant ("A") makes a request for s.202 review. Rather, they provide some practical updates and carry out some renumbering to reflect the amendments introduced by the Homelessness Reduction Act. In particular, they facilitate (Reg. 5) the extension of s.202 reviews, which will now become available following decisions:
- Regarding whether the prevention duty is owed where A is threatened with homelessness (s. 195), or the relief duty owed where A is homeless (s.189B)
- As to which steps it is reasonable for the local authority to take to help A secure that suitable accommodation becomes available for their occupation at either the prevention or relief stage (ss.189B(2), 195(2))
- To give notice ending the prevention or relief duties owed to A (ss.189B(5), 195(5))
- To give A notice for having deliberately or unreasonably refused to cooperate (s.193B(2))
- Regarding the referral of applications to or from another local housing authority (ss.198(1), 200(3) and (4))
Regulations 2 and 3 provide some new procedural requirements for notices served in the cases where A has deliberately and unreasonably refused to co-operate (s.193B(2)).
The period in which to complete a s.202 review remains 8 weeks or such longer period as may be agreed between A and the reviewer, except where a review is requested of certain decisions concerning the prevention and relief duties. In those cases, reviews must be completed within only three weeks: Reg. 9(1)(a) and ss. 202(1)(ba)(i), (bb) and (bc). Although these decisions should in theory be simpler to complete than reviews of decisions as to whether the full homelessness duty is owed, this timeframe is likely to pose a considerable challenge for many busy housing authorities. As a result, it will no doubt remain common practice to seek applicants' consent for extensions of time in which to complete reviews.
Reg. 8 of the 1999 Regulations is re-enacted almost identically within the 2018 Regulations. Reviewing officers will thus remain bound to take into account any representations made by or on behalf of A, and will be required to issue a "minded to" decision letter in the event that they consider there was a deficiency in the original letter but they are nonetheless minded to make a decision adverse to A. However as the old Reg. 8 has been renumbered as the new Reg. 7, authorities should take care to ensure that any precedents or template letters in use are updated accordingly.
Further discussion on the Regulations is provided in Chapter 19 of the 2018 Code.
Referrals by other public bodies
Section 10 of the 2017 Act will introduce a new s.213B, which will empower "specified public authorities" (SPAs) to refer persons to local housing authorities where the SPA exercises functions in relation to that person, it considers that the person may be homeless or threatened with homelessness, and the person consents to the referral.
The referral will not amount to either a homelessness application for the purposes of s.183 or a "cross-authority" referral for the purposes of s.198. Rather, authorities receiving s.10 referrals will be required to follow up by contacting the person concerned.
The 2018 Regulations identify for the first time the SPAs that will be empowered to make s. 10 referrals (Reg. 10 and Schedule). The list contains few surprises, largely identifying authorities that were already discussed in connection with this provision during the Bill's passage through Parliament:
- Social services authorities
- Officers of Jobcentres
- Probation services, youth offending teams and prison authorities, including those from other types of penal institutions such as secure colleges and training centres
- NHS Trusts and Foundation Trusts, although only those providing emergency, urgent and in-patient services (as distinct from GP surgeries)
- The Secretary of State for Defence in relation to members of the armed forces
Importantly, the 2018 Regulations clarify that s.10 will not come into force until 1 October 2018 (Reg. 1(3)). This longer run-in period is presumably intended to provide local authorities with sufficient time to put in place systems and procedures so that they can effectively coordinate with their counterparts at the SPAs and respond to incoming referrals.
Detailed guidance on s.10 is provided within Chapter 4 of the 2018 Code. It makes clear that local housing authorities are under a general duty to cooperate with the SPAs on referrals, and will be expected to assume responsibility for managing the process. Examples given include setting up tailored local procedures, establishing single points of contact to receive referrals and arranging to store relevant information securely.
Referral channels are likely to prove particularly relevant for rough sleepers: authorities will need to consider in advance how to respond effectively in cases where emergency accommodation may be required, or where other duties may arise in parallel such as under the Children Acts (1989 and 2004) or Care Act 2014 (§§4.9-4.10).
The new referral mechanism is just one example of the many changes that local housing authorities will need to make as the 2017 Act and Regulations are rolled out during 2018.