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ABSTRACT
This paper sets out proposals for the ‘ideal’ legal framework to address homelessness in Great Britain (GB), with potential lessons for other countries seeking to pursue rights-based approaches in this field. Exploiting the ‘natural experiment’ conditions generated by post-devolution divergence in key aspects of homelessness law, the paper draws on legal and social scientific learning from England, Scotland and Wales, as well as internationally, to formulate proposals for the optimal rights-based model. We argue that an ideal statutory homelessness system, situated in a less than ideal welfare and housing context, requires a balance to be struck between a robust set of individually-enforceable entitlements, on the one hand, and scope for pro-active, flexible approaches on the part of housing practitioners, on the other. The ten core principles we advance would therefore aim to combine the best of ‘professional-centred’ and ‘rights-centred’ social policy approaches.
Acknowledgments
We are indebted to Crisis, and particularly Matt Downie, for giving us the opportunity to undertake this fascinating piece of work. We are very grateful for the detailed, thoughtful and challenging comments we received on draft versions of the paper from Professor Mike Adler, Professor Glen Bramley, Tessa Buchanan, Professor Sarah Johnsen, Connor Johnston, Dr Peter Mackie, Neil Morland, Professor Tom Mullen, Professor Mark Stephens, Tamsin Stirling and Dr Beth Watts. Their generous contribution of both time and ideas has made this a much better paper than it would otherwise have been. Any errors and all opinions remain ours alone and should not be taken to reflect the views of Crisis or any of the individuals who commented on the paper.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. While we do make reference to some points and literature that is UK-wide in the course of this paper, its main scope is confined to GB given the specificities of the situation in Northern Ireland, see Fitzpatrick et al. (Citation2020a).
2. Currently contained at s.189(1) and Homelessness (Priority Need for Accommodation) Order 2002, SI 2002/2051 for England; s.70 Housing (Wales) Act 2014 for Wales; ss 4–6 Homelessness etc. (Scotland) Act 2003.
3. See, for example, this UK Parliamentary debate HC Deb 28 October 2016 vol 616 cc540-609.
4. Originally enacted at s.2 Housing (Homeless Persons) Act 1977. Now at s.189(1) and Homelessness (Priority Need for Accommodation) Order 2002, SI 2002/2051 for England; s.70 Housing (Wales) Act 2014 for Wales; ss 4–6 Homelessness etc. (Scotland) Act 2003.
5. Originally at s.6(2) Housing (Homeless Persons) Act 1977, amending Housing Act 1957 (England and Wales) and Housing (Scotland) Act 1966 (Scotland). Now at Housing Act 1996, s 166A(3)(b) (England); Housing Act 1996 s 167(2)(b) (Wales); Housing (Scotland) Act 1987, s 20(1ZA)(a) (Scotland).
6. Housing (Homeless Persons) Act 1977 applied to England, Wales from 1 December 1977 and to Scotland from 1 April 1978. In England and Wales it was repealed, and its provisions incorporated into Part III Housing Act 1985, a consolidating Act, with effect from 1 April 1986. It was further amended by Housing and Planning Act 1986, s 14(2). In relation to Scotland, Part III Housing Act 1985 was repealed and substituted by Part 2 Housing (Scotland) Act 1987, which remains in force and has subsequently been amended. In relation to England and Wales, Part III Housing Act 1985 was repealed and substituted by Part 7 Housing Act 1996, with effect from February 1997. Part 7 Housing Act 1996 has subsequently been amended. It remains in force in England, and has been mostly recently amended by Homelessness Reduction Act 2017, in force for applications for homelessness assistance made on or after 3 April 2018. Part 7 Housing Act 1996 was repealed in relation to Wales and the Part 2 Housing (Wales) Act 2014 came into effect for applications for homelessness assistance made on or after 27 April 2015. Save where the reference is to earlier provisions only, reference will be made to the current legislation in force: Part 7 Housing Act 1996 as amended for England; Part 2 Housing (Scotland) Act 1987 as amended for Scotland Part 2 Housing (Wales) Act 2014 for Wales.
7. Housing Act 1996, ss175–176 (England); Housing (Wales) Act 2014, ss55-56; Housing (Scotland) Act 1987, s24.
8. Housing Act 1996, s 175(4) (England); Housing (Wales) Act 2014, s. 55(4); Housing (Scotland) Act 1987, s 24(4) (Scotland).
9. Currently at Housing Act 1996, s189(1) and Homelessness (Priority Need for Accommodation) (England) Order 2002, SI 2002/2051; Housing (Wales) Act 2014, s70; Housing (Scotland) Act 1987, s25, now repealed.
10. Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811, SC, per Baroness Hale at [93]. (see also Loveland 2017).
11. Housing Act 1996, s190; Housing (Wales) Act 2014, s68(5); Housing (Scotland) Act 1987, s31(3).
12. Housing Act 1996, s191; Housing (Wales) Act 2014, s77; Housing (Scotland) Act 1987, s26. Note that the duty on local authorities to assess intentionality has now been converted to a power in Scotland by the Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019. In Wales, the issue of intentionality no longer applies where the applicant has a priority need by virtue of pregnancy, children, is aged under 21 or is aged under 25 and is a care leaver (s.75(3) Housing (Wales) Act 2014). See the current leading case: Haile v Waltham Forest LBC [2015] UKSC 34, [2015] AC 34, SC.
13. Some examples of decisions by local housing authorities that might be considered to be harsh, but were upheld as lawful by the Courts include: a young person excluded from the parental home for breach of rules: Denton v Southwark LBC [2007] EWCA Civ 623, [2008] HLR 11, CA; loss of private tenancy for rent arrears accrued as a result of failure to budget: Balog v Birmingham City Council [2013] EWCA Civ 1582, [2014] HLR 14, CA; and travelling from Belgium to Birmingham in the hope of finding a job and therefore accommodation: Aw-Aden v Birmingham City Council [2005] EWCA Civ 1834, CA.
14. Currently at Housing Act 1996, s198; Housing (Wales) Act 2014, s80; Housing (Scotland) Act 1987, s33. Note that the coming into force of the Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019 on 7 November 2019 gave Ministers powers to restrict the operation of the local connection referral rules in Scotland.
15. From April 2018, local housing authorities in England also have a power to refer the relief duty under local connection: s.198(A1) Housing Act 1996.
16. Housing Act 1996, s185; Housing (Wales) Act 2014, s61 and Sched 2; Immigration and Asylum Act 1999, s119.
17. Housing Act 1996, s206(1); Housing (Wales) Act 2014, ss68 and 75; Housing (Scotland) Act 1987, s35.
18. R v Brent London Borough Council ex parte Omar (1991) 23 HLR 446, QBD.
19. Because the applicant is not eligible for assistance, or has been found to have become homeless intentionally, or has refused an offer of suitable accommodation.
20. Children Act 1989, s17 and Care Act 2014, s18; Social Services and Well-being (Wales) Act 2014, ss35 and 37; Social Work (Scotland) Act 1968, s12 and Children (Scotland) Act 1995, s22.
21. R (G) v Barnet LBC [2003] UKHL 57, [2004] 2 AC 208, HL.
22. Housing Act 1996, s202(1); Housing (Wales) Act 2014, s85(1); Housing (Scotland) Act 1987, s35A. Prior to February 1997, and the introduction of Housing Act 1996, there was no right to request a review and no subsequent appeal to the County Court. Any challenges were by way of judicial review.
23. Housing Act 1996, s204; Housing (Wales) Act 2014, s86.
24. The decisions which carry a right to request a review are listed at Housing Act 1996, s 202 and Housing (Wales) Act 2014, s 85. Any decision made by a local housing authority that is not contained in those lists can only be challenged by judicial review.
25. In Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430, HL, Lord Bingham said: ‘Although the county court’s jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review: Nipa Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306. Thus the court may not only quash the authority’s decision under section 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1030, per Scarman LJ) if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact’ [7]. Those principles were said to have been ‘settled’ by the Runa Begum case in the recent Supreme Court authority of Poshteh v Kensington & Chelsea RLBC [2017] UKSC 36, [2017] A.C. 624, per Lord Carnwath JSC[42].
26. Housing (Scotland) Act 2001, s3.
27. Though note that various issues have been identified with the operation of these Section 5 referrals in practice (see Britain et al. Citation2009).
28. Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012.
29. Homelessness etc. (Scotland) Act 2003, ss4-6.
30. Homelessness etc. (Scotland) Act 2003, s8.
31. Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019.
32. The duty is contained in Section 32B of the Housing (Scotland) Act 1987, as amended.
33. Thus extending the relevant period from 28 days to 56 days, matching the 2001 extension in Scotland: Housing (Wales) Act 2014, s 55(4).
34. HWA 2014, s66; Allocation of Accommodation and Homelessness Code of Guidance for Local Authorities, Welsh Government (Citation2016) Chapter 12.
35. HWA 2014, s73; Welsh Government (Citation2016) Chapter 13.
36. HWA 2014, s75.
37. HWA 2014, ss74(5), 75(1) and 79(5).
38. HWA 2014 s.75(2).
39. HWA 2014, s78; Homelessness (Intentionality) (Specified Categories) (Wales) Regulations SI 2015/1265 (W.85),
40. Housing (Wales) Act 2014, s 75(3), brought into effect by Housing (Wales) Act 2014 (Commencement No 10) Order 2019, SI 2019/1479.
41. From 3 April 2018, for applications for homelessness assistance made to local housing authorities in England: Homelessness Reduction Act 2017 (Commencement and Transitional and Savings Provisions) Regulations 2018, SI 2018/167, Article 3.
42. There is an ongoing inquiry by the Housing, Communities and Local Government Select Committee in Parliament. In addition, it is possible to extrapolate from the homelessness statistics (Homelessness Statistics, MHCLG). They show that significant numbers of people who do not have a priority need are being owed the prevention or relief duties and that between 40% – 58% of people owed one of those duties were then provided with accommodation (Davies et al. Citation2019).
43. Housing Act 1996, s175(4) and (5): increasing the period from 28 days to 56 days, and providing that an applicant is deemed to be threatened with homelessness if he or she has been served with a valid Housing Act 1988, s 21 notice.
44. Housing Act 1996, s195(2).
45. Housing Act 1996, s189B(2).
46. Housing Act 1996, s189A.This is a stronger commitment than in Wales, where there is an obligation to carry out an assessment of the applicant’s case (Housing (Wales) Act s 62) but the personalised housing plan is contained only in the Welsh Code (para 10.19 and Annexe 17).
47. Housing Act 1996, s 193B(2).
48. Housing Act 1996, s193B, Ministry of Housing, Communities and Local Government (Citation2018), paras 14.49–14.59.
49. Housing Act 1996, s193C.
50. Housing Act 1996, s21.
51. Housing Act 1996, s175(5), as inserted by HRA 2017.
52. Housing Act 1996, s190(2)(a) as amended.
53. Housing Act 1996, s198(A1) as inserted by HRA 2017.
54. Art 3 Homelessness (Suitability of Accommodation) (England) Order 2003, SI 20,003/3326.
55. Art 4 Homelessness (Suitability of Accommodation) (England) Order 2003, SI 20,003/3326.
56. Housing Act 1996, ss189B(2) and 195(2); Housing (Wales) Act 2014, ss 66 and 73.
57. See R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438, [2015] HLR 5, CA; and R (Alemi) v Westminster City Council [2015] EWHC 1765, [2015] PTSR 1339, Admin Ct.
58. Housing Act 1996, s199; Housing (Wales) Act 2014, s81; Housing (Scotland) Act 1987, s27.
59. Such accommodation need not be long-term accommodation. This principle envisages that children’s services ensure that suitable emergency accommodation remains available whilst it works with the family in order to find and keep longer-term suitable accommodation.
60. The current test for acceptance of a new application is that there are new factual circumstances that were not present when the previous application was disposed of: Begum v Tower Hamlets LBC [2005] EWCA Civ, 340, [2005] 1 WLR 2103, CA; R (Hoyte) v Southwark LBC [2016] EWHC 1665, [2016] HLR 35, Admin Ct.
61. Housing (Scotland) Act 1987, s32B as inserted by Housing (Scotland) Act 2010.
62. HWA 2014, s62(5)(c).
63. Housing Act 1996, s189A(2)(c), as inserted by HRA 2017.
64. HWA 2014, s95.
65. Housing Act 1996, s213(b), as inserted by HRA 2017. The list of specified public authorities includes prisons, hospitals, the DWP, social services and education authorities. The highest number of referrals are being made by the National Probation Service and by Jobcentre plus (Homelessness Statistics, MHCLG, https://www.gov.uk/government/collections/homelessness-statistics [accessed 27 January 2020].