May 2020: Changes in relation to the Coronavirus Act 2020
The requirements of the homeless and people living on the streets, also need to be reflected in any local framework to support the Government’s COVID-19 emergency. Practices that have been developed in local organisations to support homeless people need to be maintained and enhanced to reflect their needs, especially as this group has a high level of mortality, and support needs including mental ill-health and substance misuse which may present a barrier to self-isolation.
NHS trusts have a duty under the Homelessness Reduction Act (2017) to refer people who are homeless or at risk of homelessness to a local housing authority. This statutory duty remains. See also Annex E: Homelessness, Hospital Discharge Requirements.
SOUTH TYNESIDE SPECIFIC INFORMATION
- 1. Introduction
- 2. South Tyneside Homelessness Service
- 3. Safeguarding Concerns
- 4. Homelessness Legislation
- 5. Useful Resources
- Appendix 1: Further Information
The relationship between local housing and adult and social care departments can be complex because there are often legal and practical difficulties arising from circumstances where vulnerable adults and families fall below or between two legal frameworks. Their needs may not be sufficient to qualify them under the Care Act 2014 (CA) but they may also not meet the criteria for a positive housing decision because they do not have sufficient vulnerability to be assessed as being in ‘priority need’ (see Section 3.2.2, Section 189: Priority Need).
The CA allows the local authority to provide any type of accommodation which may be called ‘ordinary accommodation’, that is “accommodation in a care home or in premises of another type” where they would receive care and support services relevant for their assessed needs.
A local authority must not meet a person’s care and support needs by taking any action which is required – either by itself or another local authority – under the Housing Act 1996 (HA) or other housing related legislation. A local authority can provide ordinary accommodation under the CA when they are not under a duty to provide that person with accommodation under the HA.
Once the local authority has assessed an applicant’s needs as satisfying the relevant criteria, it must provide accommodation on a continuing basis so long as the need of the applicant remains as the same as originally assessed.
A local authority from an adult social care perspective may provide ordinary accommodation, and any other service within reason, to an adult whom it assesses as needing care and support under the CA; whether or not the local authority uses that power is for it to decide.
See also Appendix 1: Further Information.
2. South Tyneside Homelessness Service
Click on the link to view Homefinder (Homeless Service) in South Tyneside
3. Safeguarding Concerns
Adults who are homeless may be vulnerable to abuse, whether they are rough sleeping, sofa surfing or in temporary accommodation. For example their lack of stable accommodation can leave them vulnerable to physical, emotional or sexual abuse, and their possessions vulnerable to theft.
Staff who work with adults who are homelessness should be aware of the increased possibility of safeguarding issues, be able to recognise the signs of potential abuse and to take action if they suspect that someone is being abused (see Stage 1: Concerns).
4. Homelessness Legislation
4.1 Housing Act 1996
The main legislation that addresses local authority duties in relation to people who are homeless is the Housing Act 1996. This states the legal requirements that underpin local authority action to prevent homelessness and provide assistance to people who are threatened with homeless or who are homeless.
In 2002, the legislation was amended through:
- the Homelessness Act 2002 which means each local housing authority has a duty to undertake a review of homelessness and to develop and implement an effective strategy to deal with homelessness in consultation with both Social Services and other organisations; and
- the Homelessness (Priority Need for Accommodation) (England) Order 2002 which extended the class of persons with a priority need for accommodation to six additional categories:
- 16-17 years old;
- 18-20 care leavers ;
- vulnerable care leavers;
- former members of the armed forces;
- vulnerable former prisoners;
- persons fleeing violence.
These were introduced to ensure a more strategic approach to tackling and preventing homelessness and to strengthen the assistance available to people who are homeless or threatened with homelessness by extending the priority need categories.
4.2 Homelessness Reduction Act 2017
The Homelessness Reduction Act 2017 (HRA) makes additional amendments to the Housing Act 1996 and has required local authority homelessness services to significantly change their practice.
One of the aims of the HRA is to ensure that all eligible households who are homeless or threatened with homelessness receive genuine and effective advice and assistance to help them secure accommodation. The HRA aims to widen access to homelessness advice and prevention services for all households who are experiencing homelessness or who are at risk of losing their home. It introduced a statutory duty to carry out assessments on all applicants, as well as duties to prevent and relieve homelessness in all cases.
Key sections in the Act are outlined below.
4.2.1 Section 179: An expansion of the general duty to provide advice
Local housing authorities have a duty to ensure that advice and information on homelessness prevention and on how people can access help and support when homeless is made available free of charge. The HRA specifies the types of information that has to be available and that advice and information has to be tailored to meet the needs of the following specific groups:
- people released from prison or youth detention accommodation;
- care leavers;
- former members of the regular armed forces;
- victims of domestic abuse;
- people leaving hospital;
- people living with a mental illness or impairment; and,
- any other group that the authority identify as being at particular risk of homelessness in their area.
The local authority can provide this advice themselves or arrange for other agencies to do it on their behalf.
4.2.2 Section 189: Priority Need
A person who is homeless who approaches the local authority for assistance (known as an eligible applicant) has to fall into one of the priority need categories in order for the local authority to have a duty to obtain temporary accommodation for them. The following people have a priority need for accommodation:
- a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
- a person with whom dependent children reside or might reasonably be expected to reside;
- a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster;
- homeless 16 and 17 year olds;
- care leavers aged 18, 19 and 20;
- a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
- people who are vulnerable as a result of time spent in care, the armed forces, prison or custody;
- people who are vulnerable because they have fled their home because of violence.
Such decisions can be controversial and can be subject to challenge and review, however.
The term ‘vulnerable’ is not defined in the legislation, therefore a considerable amount of case law considers how to define and interpret ‘vulnerable for example, Hotak v Southwark LBC; Kanu v Southwark LBC; Johnson v Solihull MBC  UKSC 30. The Supreme Court judgment decided in these cases a homeless person is in priority need if he or she is vulnerable compared to the average person, not the average homeless person (Johnson vulnerability).
The test involves comparing the ability of the applicant to deal with the effects of being homeless with the ability of a hypothetical ordinary person to deal with the same situation. In order to be deemed vulnerable, the applicant must be:
- significantly more vulnerable than an ordinary person in need of accommodation; and
- likely to suffer greater harm in the same situation.
Vulnerability in this context relates to a person’s vulnerability if they are not provided with accommodation, not their general ‘need of care and support’.
4.3.3 Section 189A: Assessments and Personalised Housing Plans where the person is homeless or threatened with homelessness.
Local housing authorities must carry out an assessment where an eligible applicant is homeless or threatened with homelessness. This should identify what has caused the homelessness or threat of homelessness, the applicant’s housing needs and any support they need in order to be able obtain and stay in new accommodation.
Following the assessment, the local authority must work with them to develop a personalised housing plan. This should contain actions for the local authority to help them secure new suitable accommodation. A copy of the assessment and the plan must be given to the person, and both must be reviewed whilst the local authority continues to have any duty to them.
Practically, the local authority must try to agree a written list of the actions that each party will take. If they cannot be agreed, the local authority must produce a record of the reasons for the disagreement and detail what steps the local authority will take and those steps expected from the applicant. Until a point at which the local authority decides it does not owe a duty to the applicant, it has to keep the assessment under review, together with the appropriateness of any agreement reached or steps taken.
4.3.4 Section 189B: Relief Duty
The local authority has a duty to provide support and help to all eligible people who are homeless. This is met by helping a person secure suitable accommodation, where they have a reasonable possibility of staying for at least six months. The relief duty can remain in place for up to 56 days. If the applicant is still homeless at the end of this period the local authority must decide what further duty, if any, is owed to them.
The relief duty applies to all eligible applicants who are homeless; it is not conditional upon them being in a priority group.
The local authority can consider a person’s local connection when a relief duty is in place. If they do not have a local connection to the local authority and have a safe local connection to another local authority area, the local authority can decide to refer their case to the other area.
4.3.5 Duty to help to secure accommodation
Housing authorities have a number of duties and powers to secure accommodation for an applicant. The HRA introduces a duty of ‘help to secure’ accommodation for all applicants under prevention and relief duties. This does not mean that the housing authority has a duty to directly find and secure the accommodation, but involves them working with an applicant to agree reasonable steps that they and the local authority will take to identify and secure suitable accommodation.
The prevention or relief duty will be met if any type of suitable accommodation can be found when helping the application to secure accommodation. It can often be met by helping them to secure a tenancy; it can also be met by helping them to secure any type of suitable accommodation, including accommodation occupied under a licence.
The local authority can secure suitable accommodation in the following ways:
- providing it themselves; or
- arranging that the applicant obtains if from some other person; or
- giving the applicant advice and assistance so that accommodation is available from some other person (in R v (Miah) v Tower Hamlets LBC  EWHC 1029 advice to meet the duty then ends the duty).
The local authority must provide temporary accommodation for applicants who are in a priority need group whilst it performs the relief duty.
4.3.6 Section 191: Intentionally homeless
A person becomes intentionally homeless if they deliberately do something, or fail to do something that as a direct consequence means they no longer live in accommodation that was reasonable for them to stay in.
The local authority must be satisfied that all five elements of the intentional homeless (IH) test apply.
- What did the applicant do or fail to do?
- Did it lead to a loss of the accommodation as a consequence of an act or omission?
- Was there a termination or interruption in the occupation as distinct from a failure to take up accommodation?
- Was the accommodation available for the homeless person’s occupation?
- Would it have been reasonable for the homeless person to continue to occupy the accommodation?
A person will also be found to be intentionally homeless if they enter into any arrangement under which they are required to leave the accommodation which it would have been reasonable for them to continue live in, if the purpose of that arrangement was to enable them to claim assistance as a homeless person.
In considering whether a person deliberately becomes homeless the local authority has to ask whether the loss of accommodation would reasonably have been regarded as a likely consequence of that person’s deliberate conduct:
- ‘deliberate’ relates to the act or omission;
- ‘likely’ means a real or serious possibility;
- the link between the act and the homelessness must be judged objectively;
- the deliberate act must have contributed in some measure to the loss of the home.
There may be a number of causes of the homelessness, some of which may be ‘innocent’ but the applicant will still be IH if the local authority – on the balance of probabilities – is satisfied that homelessness was a likely consequence of a deliberate act. Examples are:
- the applicant’s tenancy was not renewed by the landlord and was a reasonable result of the behaviour of not paying rent or withholding rent;
- an applicant guilty of ASB or criminal behaviour is forced to leave their home because of i.e. threats. S/he is IH because the accommodation would have been reasonable to occupy but for ASB.
Where the homeless person took action or failed to act, there is a good faith test that has to be considered in regard to a deliberate act, that is, was the applicant acting honestly or was s/he genuinely ignorant of a relevant fact?
If it is decided that a person is intentionally homeless, this limits the duties and assistance the local authority can give them. At the most, if they are also in priority need, they will be provided with temporary accommodation for a reasonable period only. This period – usually around 28 days – is to allow them to make their own arrangements to secure alternative accommodation.
4.3.7 Section 195: The Prevention Duty
The local authority has a prevention duty to provide support and help to all eligible people who are threatened with becoming homeless within the next 56 days. This duty is often be met by providing assistance to enable a person to remain in their current home, where possible, however where this is not feasible it can be met by helping them move to another home in a planned way, without them becoming homeless.
This duty applies to all eligible applicants who are threatened with homelessness, it is not conditional upon the applicant being in a priority group and it does not require an applicant to have a local connection to the area. The duty remains in place for up to 56 days, although it can be longer, if required.
4.3.8 Section 195: A change to the meaning of ‘threatened with homelessness’
Under the HRA, households are considered to be threatened with homelessness if they are considered to be threatened with homelessness in the next 56 days. This period has been doubled from previous legislation in the HA, previously it was 28 days from date they presented for accommodation.
This is to require local authorities to intervene to provide assistance at an earlier stage, so there is increased opportunity to achieve a successful homelessness prevention outcome. The local authority is obliged to take reasonable steps to help the applicant secure that accommodation so it does not cease to be available for his/her occupation. In deciding the steps to take the authority must have regard to its own assessment.
4.3.9 Section 199: Local connection and a local connection for care leavers
An applicant has a local connection to an area if they are:
- normally resident in the area (usually for six of the past 12 months, or for three out of the past five years);
- employed in the area;
- have family associations to the area; or actual relationships are often considered more important than blood ties
- have other special circumstances that give them a connection.
A local connection is determined by the facts and circumstances at the date that the local authority completed its enquiries.
A young person owed leaving care duties the Children Act 1989 will have a local connection to the area of the children services authority that owes them the duties.
Where a care leaver is aged under 21 and normally lives in a different area to that of a local authority that owes them leaving care duties, and has done for at least two years including some time before they turned 16, the young person will also have a local connection in that area.
4.3.10 Section 213B: Duty to Refer
The HRA introduced a duty to refer, which is placed on other public sector bodies, not the local housing authority. Social care services, including adult social care, are subject to this duty.
The aim of this duty is to help early identification of households who are homeless or threatened with homelessness, and to build on / develop joint working relationships between organisations in order to effectively prevent and relieve homelessness. The following organisations are subject to the duty to refer, and must refer people who they come into contact with, who are experiencing homelessness or who are threatened with becoming homeless:
- youth offender institutions;
- secure training centres;
- secure colleges;
- youth offending teams;
- probation services (including community rehabilitation companies);
- Job Centre Plus;
- social service authorities;
- emergency departments;
- urgent treatment centres;
- hospitals in their function of providing inpatient care;
- the Secretary for Defence in relation to former members of the regular armed forces.
The organisation must first have consent from the person they are going to refer. The person must then nominate a local authority in England where they want the referral to be sent. The referral itself will not mean a homelessness application has been made.
4.4 Summary of the main provisions of HRA
- The legislation introduces requirements for local housing authorities to carry out homelessness prevention work with all those persons who are eligible for help and threatened with homelessness.
- The HRA changes the point at which a person is classed as being threatened with homelessness from 28 days to 56 days.
- It makes changes to the way local authorities assess and the point in time in which a person becomes homeless or is threatened with homelessness. The HRA requires local housing authorities to carry out an assessment of the applicant’s needs and the steps agreed between the local housing authority and the applicant are set out in writing in the form of a personalised plan.
- A duty is placed on local housing authorities to take steps for 56 days to relieve homelessness by helping any eligible homeless applicant to secure accommodation.
- A further duty was introduced that is owed to certain applicants who deliberately and unreasonably refuse to co-operate with local housing authorities.
- The legislation specifies that local agencies should refer those persons who are either homeless or at risk of being homeless to local housing authority teams.
- Provisions are made for certain care leavers to make it easier for them to show they have a local connection with both the area of the local authority responsible for them and the area in which they lived while n care if that was different.
4.5 Applying the Equality Act 2010 in regard of Priority Need and Disability
The definition of disability in the Equality Act 2010 (EA) is “a person has a disability if s/he has a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability”.
When making decisions about priority need under the EA, the local authority must ensure it has taken all steps to gather all relevant information relating to the applicant’s mental or physical disability. Workers should undertake a full assessment interview with the applicant, focus on questions that relate to any physical or mental impairment and ask how the impairment might impact on them if s/he were to become or remain homeless.
The SC judgment states that EA is ‘engaged’ when making decisions on vulnerability where the applicant has a relevant protected characteristic: age; disability; gender; gender reassignment; pregnancy and maternity; race; religion or belief and sexual orientation. The court accepted that on priority need a protected characteristic will be a disability and these questions should be considered:
- What is the extent of the applicant’s disability?
- What is the likely effect of the disability on the applicant when taken together with that person’s other problems?
- Is the worker satisfied that relevant third party inquiries have been undertaken into any mental or physical impairment to demonstrate that the applicant meets the requirements set down by the EA?
If the applicant is found not to have a priority need category the reasons must be set out.
The local authority may find an applicant comes under the definition for the disability protected characteristic in a priority need, but does not automatically become eligible because they meet the definition.
If a local authority reaches a decision that on the evidence they are not vulnerable, despite coming under the disability protected characteristic, it must justify the decision as a proportionate means of achieving a legitimate aim, which is to meet the obligation set by the homeless legislation to decide when a person’s disability makes a person vulnerable under the EA.
5. Useful Resources
5.1 Homelessness Code of Guidance for Local Authorities
The Homelessness Code of Guidance for Local Authorities provides statutory guidance that all local authorities must consider when carrying out their duties relating to homelessness and preventing homelessness. The code is issued specifically for local authority members and staff, including social care services (see Section 3.3.10, Section 213B: Duty to Refer).
The guidance includes information on preventing and tackling homelessness, including joint working between housing and other services to secure accommodation and provide support. It also covers the duty to refer, although it was published prior to the implementation of the HRA.
5.2 Other useful resources
- National Homelessness Advice Service NHAS: Useful information and resources for local authority staff, housing providers and members of the public. Requires a log in to access some resources.
- Shelter Legal: Detailed and useful resources on homelessness applications, legal duties, security of tenure, rents, benefits etc.
Appendix 1: Further Information
In R v Kensington and Chelsea RLBC Ex p Kujtim  CCLR 340 CA the Court of Appeal held that residential accommodation could include ‘ordinary’ housing accommodation. A duty to supply such accommodation arose where a person needed care and attention, including housing accommodation when it is not available. The need for care is a precondition for this duty. Although CA uses the phrase ‘care and support’ instead of the term under the National Assistance Act 1948 (NAA) ’care and attention’, it has been held that the case law under the NAA still applies.
In R (SG) v Haringey LBC  EWHC 2579 (Admin) it was held a local authority needs only provide under CA a response to an accommodation related need.
Deputy High Court Judge Bowers “The service provided in a non-home environment, would be rendered effectively useless if the claimant were homeless sand sleeping on the street”.
2. The Johnson vulnerability test
The Johnson vulnerability test is practically applied by asking the following questions:
- What are the person’s problems?
- What is the impact of those problems on them?
- What is their ability to manage their problems by themselves and with the help of others?
- Taking into account investigations from questions 1-3 how would they suffer more harm than an ordinary person without access to a home? i.e. would they suffer more harm than you or I if they were to become homeless?