fact and law in homelessness 2015/6 - advice station · body and that fact involves a broad...

FACT AND LAW IN HOMELESSNESS 2015/6

H&F ADVICE CONFERENCE

21 January 2016

Jamie Burton

FACT AND LAW IN HOMELESSNESS 2015

THE UK’S INTERNATIONAL LEGAL COMMITMENTS

• The International Covenant on Economic, Social and Cultural Rights (ICESCR) ratified in 1976

• Respect, protect and fulfill the right to housing

• In a climate of austerity, it is vital to point out that the government is obliged not to take regressive (that is, backward), steps or strip away enjoyment of the right to housing unless this is absolutely necessary.

THE UK’S INTERNATIONAL LEGAL COMMITMENTS

• Yet a growing number of individuals and families in England are not able to secure the adequate, safe and affordable housing that the ICESCR requires. Homelessness is rising. Housing is increasingly unaffordable, and legislative changes have weakened key safety nets for English households

• The paradigm violation of the right to housing and perhaps the most obvious violation: homelessness.

FACTUAL DEVELOPMENTS

• The problem appears to be getting worse –much worse.

• Rough sleeping: 55% increase since 2010

• London: doubled over the six years to 2013

• 40,000 people in England using hostels for housing but 38% of emergency and temporary accommodation services have seen their funding fall from 2012

FACTUAL DEVELOPMENTS contd/

• Hidden homelessness remains unacceptably high. Some 2.23 million households in England house a concealed single person; 265,000 concealed single parents and couples.

• Over a quarter of people accepted as homeless by a LHA became so as a parent, friend or relative was no longer able or willing to accommodate the person

FACTUAL DEVELOPMENTS contd

• In December 2014, statistics record the highest number of households placed in temporary accommodation by local authorities in the last five years, and a 9% increase on the previous year

• There were 61,970 temporary accommodation households at the end of December 2014.

• These numbers are increasing still..

FACTUAL DEVELOPMENTS contd

• In 2014 112,330 homeless applications made to local authorities in England. 26 rise since 2009/10. 48% found to be owed the main duty. This is consistent with previous years. Homelessness monitor suggests that 280,000 people approached their local authority for homeless assistance in the same year.

REASONS?

• Affordability

• In 2011/12, private renters in the bottom fifth of the UK income distribution spent an average of 56% of their income on housing. In 2013/14, private renters as a whole spent an average of 52% of income on their housing.

• For as many as 20% of all households, state support is necessary to be able to meet the cost of housing at all

REASONS?

• Insecurity• Evidence of increase in retaliatory evictions• Supply• There have been decades of insufficient investment in

housing. Most estimates suggest we need to build about 250,000 a year – we are building less than half that.

• Quality• A startling 22% of dwellings in England failed to meet

the ‘decent homes standard’ in 2012. in the private rental sector, non-decent homes continue to comprise almost one third – 29% - of the housing stock

LEGAL DEVELOPMENTS IN HOMELESSNESS LAW

Article 6 & oral hearings?

• Ali v United Kingdom, Application no 40378/10

• Overturned Ali v. Birmingham - Art 6 applies to homelessness decisions

• Does not mean rehearing required

• Possible in the right case but unlikely

• What about standard of review? Wednesbury?

The standard of review

• Puhlhofer• “Where the existence or non-existence of a fact is

left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”


• Begum v. LB Tower Hamlets [2003] Lord Bingham rejected anxious or heightened scrutiny

• Holmes v. Moorhouse [2011]– Lord Neuberger“a benevolent approach should be adopted to the interpretation of review decisions” and the “court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”


• Kennedy v Charity Commission & Others [2014] UKSC 20 [2014] 2 WLR 808 & Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 adopted a new flexible, structured approach more akin to proportionality

• Should a more rigorous form of review apply to homelessness cases - Poshteh v. RBK&C

• Housing as a fundamental right?

Gate-keeping

• There is evidence that it is on the rise. There was a case against Southwark, and one coming up against Birmingham, which alleged the use of unlawful policies and practices. There are also many other individual cases or anecdotal accounts, including many outside London. There is also evidence that the methods are getting more sophisticated. A copy of the consent order in the Southwarkcase is attached.

Applications

• R (MT) v Oxford CC [2015] EWHC 795 (Admin).

The court of appeal confirmed that the rule that a local authority can refuse to accept a homeless application from an applicant who lacks capacity to understand and respond to an offer of accommodation or the responsibilities involved is not discriminatory.

Discharge of interim accommodation

• R (on the application of Brooks) v Islington LBC[2015] EWHC 2657 (Admin)

One offer of suitable accommodation is enough

Homeless

• IHussain v Waltham Forest LBC [2015] EWCA Civ 14; [2015] HLR 16,

“other violence" includes not only physical violence, actual or threatened, but other threatening or intimidating behaviour or abuse, if it was of such seriousness that it might give rise to psychological harm.

Intentional homelessness

• Samuels v Birmingham City Council ([2015] EWCA Civ 105

• state benefits have no special ‘status’ when considering the affordability of accommodation, despite the wording used in the Code of Guidance:

Para 17.40 of the Code

• “the Secretary of State recommends that housing authorities regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the level of income support or income-based jobseekers allowance that is applicable in respect of the applicant, or would be applicable if he or she was entitled to claim such benefit”

Samuels contd/

• No need to cite particular paragraph

• Fact child tax credits had to be used to pay HB shortfall not in contravention of guidance because “that is not what paragraph 17.40 says.”

• Henderson J in Burnip concerned a “particular context” and “cannot be applied across to the very different context of the present case.”

Causation of current homelessness?

• Haile v Waltham Forest LBC 20 May [2015] UKSC 34

• the authority should ask first, whether the person deliberately had done or failed to do anything in consequence of which he ceased to occupy accommodation which it would have been reasonable for him to continue to occupy and, if so, whether his current homelessness had been caused by that intentional conduct;


• a later event constituting an involuntary cause of homelessness will, however, supersede the applicant’s earlier deliberate conduct, where in view of the later event it cannot reasonably be said that “but for” the applicant’s deliberate conduct, he would not have become homeless

• (i.e. if he would have become homeless anyway because of something that happened afterwards (e.g. had a baby) and not because of something that might have happened had they not committed the deliberate acts complained of (i.e. been evicted because of rent arrears);

• in such cases, the applicant would not be homeless intentionally as the causal connection between his current homelessness and his earlier conduct will have been interrupted.


So s.193(1) should be read as follows:

• “This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that [he is homeless because] he became homeless intentionally.”

• Easier to state than to apply


• The ‘but for’ test still leaves considerable scope for judgement in many cases and will ultimately involve degrees of certainty and culpability.

• Plain that obtaining settled accommodation will be good enough and any other actual as opposed to hypothetical events: e.g marital breakdown, a cut in housing benefit, the breakdown of an arrangement for the payment of rent.

Suitability

• Regulation 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012/2601 provides standards applicable to discharge offers in the PRS

• An authority do not have to conduct a full inspection and hazard assessment of accommodation for the purposes of determining whether accommodation was suitable whenever an applicant complained about the its condition; authorities operated on tight budgets and had to exercise judgment when deciding whether to conduct a full-scale inspection and assessment: Firoozmand v Lambeth LBC [2015] EWCA Civ 952.

Out of area placements

• Nzolameso v Westminster City Council [2015] UKSC 22

• S.208

“So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.”


• Part two of the Government’s consultation paper, stated:

“It has come to light that some local authorities are seeking accommodation for households owed the main homelessness duty far outside their own district. Government is willing to explore whether protections around location of accommodation need to be strengthened and how this might be done. We expect that any measures adopted following this consultation process would apply to any accommodation offered by authorities in discharge of their duties under Part VII of the Housing Act 1996, including temporary accommodation, private rented sector offers and social housing.”


• Homelessness (Suitability of Accommodation) (England) Order 2012 reg 2:where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority;the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person's household;the proximity and accessibility of the accommodation to medical facilities and other support which—are currently used by or provided to the person or members of the person's household; andare essential to the well-being of the person or members of the person's household; andthe proximity and accessibility of the accommodation to local services, amenities and transport.”


• Guidance that deals with location states (para.48):“Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference.


• In discharge of the s.193(2) duty Ms Nzolameso was offered accommodation in Milton Keynes which she rejected because it was too far away from her support network in Westminster where she and her children had lived for a long time.


Westminster’s review letter said as follows:

“As you are aware Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Council's Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area.”

Lady Hale’s jdgm/

– when deciding whether it is reasonably practicable to secure accommodation in their district, authorities are entitled to take account of the resources available to them, the difficulties of procuring sufficient temporary accommodation at affordable prices in their area, and the practicalities of procuring accommodation in nearby authorities;

– each authority should (ideally) have, and keep up to date, a policy – approved by the democratically accountable members – for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year;

Lady Hale’s jdgm/

– each authority should have, and keep up to date, a policy for allocating those units to individual homeless households and, where there was an anticipated shortfall of in-district units, the policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away;

– if it is not reasonably practicable for an authority to secure accommodation in their district, they must to try secure accommodation that is as close as possible to where the applicant had previously been living; and

– the authority must have evidence of, and explain, any decision about where to accommodate a homeless applicant and a standard paragraph in a decision letter is not an appropriate way to evidence and explain its decision properly;

Lady Hale’s jdgm/

– by virtue of CA 2004, s.11, the question whether accommodation is suitable requires the authority to have regard to the need to safeguard and promote the welfare of the applicant’s children; it is not sufficient for the authority simply to ask whether any of the children are approaching GCSEs or other examinations; disruption to the children’s education and other support networks may harm their social and educational development; the authority should identify the principal needs of the children both individually and collectively when making the decision; and

– although CA 2004, s.11, does not require that the children’s welfare should be the paramount or even a primary consideration in deciding whether accommodation is suitable, it emphasises the need for authorities to explain their decisions, preferably by reference to published policies. Baroness Hale suggested that the “best interests as a paramount primary consideration” jurisprudence may apply in cases where s.11 applies even if Convention rights are not engaged.

Lady Hale’s jdgm/ and SoS Guidance

• Para 31- 36 of the judgement dealt with the SoS’ssubmissions on the Code

• “The Secretary of State is concerned that the Court of Appeal was too ready to assume that the authority had properly complied with their statutory obligations”

• “The Secretary of State complains that the effect of this approach would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the Code and Guidance and had taken it into account;”

Lady Hale’s jdgm/ and SoS Guidance

• “But it is apparent that this decision suffers from all of those defects and more.”• There is little to suggest that serious consideration was given to the authority's

obligations before the decision • This did not ask any questions aimed at assessing how practicable it would be for

the family to move out of the area. Nor were any inquiries made to see whether school places would be available in Bletchley and what the appellant's particular medical conditions required. Those inquiries were only made after the decision had been taken.

• The review decision is based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in Westminster and why that had not been offered to her. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible.”

Social services and out of borough placements

• R (AM) v Havering LBC [2015] EWHC 1004 (Admin)• Turf war between originating LA and host authority

after an out of borough placement (s.188)• The duty of assessing the needs of homeless children

falls primarily on the local authority (children's services authority) for the area in which the children are physically present

• The duty to provide interim accommodation for the children pending the outcome of that assessment is primarily a housing duty and will fall on the local authority (housing department) for the area in which the children are living when the duty arises


• Where the originating authority starts a CA 1989 assessment pursuant to a s.213A request from its housing department it should complete that assessment even if the family is physically in the host authority and may have to accommodate whilst it does so – therefore imperative that once the s.213A request is made s/s get on with it as otherwise may have to extend the temporary accommodation


The local authorities involved here seemed unwilling to contemplate that statutory duties, and powers, in relation to a vulnerable family can be owed by two or more authorities simultaneously. Where this situation arises, there is a particular need for meaningful and effective co-operation between the authorities; it is unacceptable for the authorities simply to stonewall each other while attempting to offload their obligations;

Local authorities (particularly neighbouring London or other metropolitan councils where the movement of families by even short distances may lead to them being in different local authority areas) should proactively devise plans and contingencies to deal with the situation such as has arisen here, including provision for sharing the cost of funding, pending the resolution of such disputes as they arise.

CONCLUSION

• It has been a bad year in terms of the increasingnumbers of people who are affected byhomelessness and do not have safe, secure andsuitable housing. It has been a better year fromthe perspective of the law, with some significantcases having been decided in favour of homelessapplicants, particularly in the Supreme Court.Needless to say, there remains much work to bedone.

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