Homelessness: The Protect, Punish or Prevent Series
Following on from our recent mini-series of blogs that comprises of the Law Commission Review to include the homeless to the list of those protected by hate crimes and the repeal of the outdated Vagrancy Act, we conclude by considering The Ministry of Housing, Communities and Local Government’s (MHCLG) recent report on the implementation of the Homelessness Reduction Act 2017. This was first published in 2019 but has recently been updated to include the government’s response.
As a quick reminder, The Homelessness Reduction Act 2017 significantly reformed England’s homelessness legislation by placing duties on local authorities from April 2018 to intervene at earlier stages to prevent homelessness in their areas. It also requires housing authorities to provide homelessness services to all those affected and are eligible for assistance, not just to those who have ‘priority need’. These include:
(a) an enhanced prevention duty extending the period a household is threatened with homelessness from 28 days to 56 days, meaning that housing authorities are required to work with people to take reasonable steps to prevent homelessness at an earlier stage; and
(b) a new duty for those who are already homeless so that housing authorities will support households for 56 days to relieve their homelessness by helping them to take reasonable steps to secure accommodation.
The Ministerial foreword of the Government response states,
“Our country is known the world over for its fairness, decency and compassion for the most vulnerable. That is why it is right that tackling homelessness and ending rough sleeping are at the heart of this government’s moral mission – a personal priority for me and the Prime Minister”.
We sincerely hope that these words are echoed when it comes to adding the homeless to the list of those afforded protection by hate crime laws and when it comes to bringing an end to punishing homelessness through repealing the Vagrancy Act.
The report contains many positive statistics and funding promises along with what we noted as trends following the implementation of the Homelessness Reduction Act in April 2018. Mostly, the developments are positive in that more households are able to access support through the prevention and relief duties. This is demonstrated by a fall in the number of people who are accepted under a full housing duty: Acceptances have fallen by 29.3% from 56,600 in 2017-18 (before the Homelessness Reduction Act) to 40,040 in 2019-20. From these statistics it therefore appears that, on paper at least, the Act is showing signs of success by preventing and relieving homelessness at these initial stages.
However, the reality is that neither of these duties impose concrete obligations on local authorities to secure permanent accommodation; instead, they must take ‘reasonable steps’ and any accommodation that is secured is generally within the private sector for a fixed period of 6 months.
The statistical success of the Act may also be contrived as it does not report that accommodation for the under 35’s is likely to be shared due to welfare reform limiting Local Housing Allowance for that age group. They also do not report that for Londoners in particular, applicants are likely to be placed away from their local area, and assisted to move to places where it is considered more affordable to live, commonly to cities such as Newcastle or Birmingham. This is not always appropriate and can be extremely disruptive for applicants, particularly if they have health needs, children and/or work/education commitments.
Our concern in regards to the operation of the Act is where unsuitable accommodation is offered in the private sector it may leave applicants in a contractual conundrum. By way of background, where an offer of accommodation is made in discharge of these duties, there is a right to seek a review of the suitability of the accommodation. Applicants will always be advised to first accept an offer and to then seek a review to ensure they are not left in a situation where they are without accommodation. However, this can leave applicants in a position where they can be forced to enter into private contractual arrangements for unsuitable properties. The problem can be demonstrated by the experience of one of our recent clients;
Our real case example
|A woman fleeing domestic violence had to accept an offer of accommodation that was about 300 miles from London. There was no viewing of the property by her, or the local authority. She was given 24 hours to accept and sign a 6 month AST with the landlord, or face a cancellation of duty and a withdrawal of any housing assistance at all. She was told to follow the review process if she considered the property unsuitable.
The woman was given a train ticket for herself and her two very small children to travel to the property. There was no assistance for her belongings to get to the property and she had to pay a few hundred pounds for a man and a van to help her move. This accounted for most of her Universal Credit that month. She registered for council tax and entered into contracts for utilities including a telephone and went on to buy a TV licence.
The children’s father had a court order to see his children in a supervised contact centre in London each Saturday. The local authority had (unlawfully) ignored this when offering the accommodation. 8 weeks later when making the review decision, the local authority finally agreed the accommodation was unsuitable and they would find her another more suitable property closer to London where the children could easily travel to see their father. A few months later, she has been moved to accommodation that is suitable, again at her own cost, but having signed a 12-month AST to pay rent and having entered into numerous utility contracts, she is now trying to come out of these contracts without her credit rating being destroyed.
Another concern is that renting within the private sector can be precarious and usually a 6 or 12 month fixed term tenancy can be just that. A private tenant is always vulnerable to a landlord simply serving a Section 21 notice and issuing possession proceedings without fault or reason. These tenancies are much less likely to be sustainable, stable or affordable for homeless applicants and can end in a perpetual cycle of homelessness. Even with the current longer notice periods due to Covid-19, an assured shorthold tenancy is not likely to be the type of stable long-term accommodation a vulnerable homeless applicant will need and does not replace the security afforded by social housing.
When the Act was announced, we had concerns that this was a form of institutionalised gatekeeping i.e. passing on the responsibility of assisting the homeless to the private sector to circumvent the main housing duty. Unfortunately, we remain concerned that this is a short term sticking plaster and not a long term resolution to homelessness i.e. greater investment and retention of housing stock and a welfare benefits system that works.
It could therefore be concluded that in our view, the extent to which the Homelessness Reduction Act reduces homelessness in the long term is questionable and the recent statistical success is contrived. The Act does enable applicants who previously would have struggled to get assistance to access support but this perhaps does little to remedy the larger underlying problems, such as a lack of affordable social housing and restriction of access to welfare support for those on low incomes.
Whilst we have seen a recent shift towards providing greater protection to the homeless to include the consultation to add the homeless to the group of people who are afforded protection from hate crime law; the repeal of the Vagrancy Act to remove punishing homelessness itself; and the introduction of Homelessness Reduction Act to prevent homelessness; an alarming announcement was recently made that changes the immigration rules in this country, to take effect during this pandemic from 01.12.2020:
“Rough sleeping in the UK
- 9.21.1. Permission to stay may be refused where the decision maker is satisfied that a person has been rough sleeping in the UK.
- 9.21.2. Where the decision maker is satisfied that a person has been rough sleeping in the UK any permission held by the person may be cancelled.
- ‘Rough sleeping’ means sleeping, or bedding down, in the open air (for example on the street or in doorways) or in buildings or other places not designed for habitation (for example sheds, car parks or stations).”
In essence, this means that someone from abroad who is legally able to live in the UK and is eligible for housing assistance could have their permission to remain here cancelled if they have been rough sleeping, which then removes their eligibility for housing assistance. Do these new rules follow the recent progress made to assist to prevent or relieve homelessness? No.
Whilst we have yet to see guidance of how this will work in practice, it seems the aim is to reduce foreign nationals seeking to rely on any public services, no matter what their circumstances or cause of homelessness.
We envisage that homelessness will simply mean deportation to anyone who does not hold a British passport but who is otherwise lawfully resident here. This is a step further from simply moving the homeless onto the next town as we saw during the Royal wedding, this is moving them out of the country completely.
Does this protect the homeless? No. Does this punish the homeless? Absolutely. And so, the law looks to be taking one step forward, and two steps back.