Many local authorities, especially within London, fall foul of the 6-week bed and breakfast (‘B&B’) rule. As per the Homelessness (Suitability of Accommodation) Order 2003 accommodation has either a shared toilet, shared personal washing facilities, or shared cooking facilities it will be considered to be a B&B. It is unlawful for councils to accommodate families (including single pregnant women) in temporary accommodation that is a privately-owned B&B for more than 6 weeks.
Self-contained temporary accommodation is considered to be more suitable for families because long periods of stay in shared accommodation have a harmful effect caused by lack of space, limited privacy and close proximity to strangers. It is hard to imagine a child growing up in these detrimental conditions but this sadly happens. We at Hodge Jones & Allen often see examples of families living in such situations: We have assisted a family who had been placed in two double bedrooms on different floors of hostel accommodation for over 6 months. We have assisted single parent families placed in single rooms within shared houses and hostels for over 12 months. In spite of regulations, this unlawful practice seems to continue. This begs the question; how can this occur when the 6-week rule is in place?
Councils often ‘overlook’ their duty to provide alternative accommodation after 6 weeks but they are swift to move families on when reminded of their legal duties. Unfortunately, an increasing trend is the transfer of families from shared accommodation which is unlawful, to shared accommodation which is lawful. The difference between the two is not that one is more suitable, but who manages it.
- Where there is either no alternative housing the council can offer; or
- Where the local authority owns or manages the accommodation.
The first exception factors in the realities of the housing crisis and takes into consideration the finite resources of local authorities: if they do not have the units they should not be expected to provide them (which is a failing in itself, however not the object of this blog).
The second exception exempts a local authority from the 6-week rule where they own or manage it. There may be no physical difference between accommodation owned privately and accommodation owned or managed by the local authority, however because it has the ‘special quality’ of being publicly managed in some form this accommodation is no longer classed as B&B.
The implications of this are that the 6-week rule does not apply to shared accommodation managed by local authorities and pages of the Homelessness Code of Guidance 2018 (which direct what conditions are suitable for homelessness applicants) also falls away. For example, the guidance stipulates that B&B accommodation “is not to be regarded as suitable for applicants with family commitments”, it should only be used as “a last resort”, and that it “caters for very short term stays only”. The ‘special quality’ means it is now suitable for applicants with family commitments. Which requires us to interrogate whether the ‘special quality’ truly delivers as higher quality accommodation.
The higher quality point appears to be the rationale behind the Suitability Order since housing authority managed accommodation is better resourced and more likely to be the subject of other regulation. Shared accommodation with the special quality is arguably more suitable for families as a result; the harms, for example increased mental distress/disorders and stunted child development, are avoided. From experience, we can confirm that this is very often not the case. Further, the space, proximity to strangers, and privacy issues are not resolved and the psychological and physiological harms remain present.
The management exception effectively means that publicly owned accommodation has less suitability requirements for vulnerable families than privately owned accommodation – which seems absurd given these families are at the same risk and come to the same harms. Local authorities are now incentivised to invest in these types of accommodation as they provide a cheap alternative to self-contained accommodation without the legal ramification of arranging private shared accommodation which would be caught by the 6-week rule.
Given the pressures on social housing, this trend is only likely to increase given there is insufficient legal protection in place for families in emergency or temporary accommodation, bar the Section 202 Housing Act suitability review procedure – which is likely to only be successful in the most extreme of cases and takes 8 weeks if not more to conclude. It also provides no guarantee that the family will be moved from the shared accommodation quickly thereafter.
Turning to the third quarter of 2017 statistics the number of families placed in B&B accommodation has increased. In 2010 630 families were placed in B&B accommodation, the latest figures show 2,660 households in B&B. The figures suggest only 10 are housed illegally, down from 60 at the beginning of 2010. But as argued above, the figures are misleading, because the definition is misleading. There are many other families in similar accommodation with the “special quality” that are being neglected. The figures indicate 3,570 households with children are in hostel accommodation. The Guidance on the statistics notes: “‘hostel’ means accommodation owned or leased and managed by a local authority, housing association or non-profit making organisation, where bathroom and/or kitchen facilities are shared”, which is the same definition as ‘B&B’ accommodation, but for the special quality (link provided to Qtr 1 2018 rather than Qtr 3 2017 as these are no longer available online, however, the definition remains the same). How many of these households have been there for over 6 weeks?
The statistics are extremely concerning and the issue this blog highlights is the swathe of families who are being failed as they are accommodated outside of the B&B legal definition. They struggle for long periods in identical conditions to those in B&B accommodation without the same rights to challenge it. It is clear that a fresh legal challenge is required to test the extent of the public management exception and wider publicity needs to be raised on the issue.