Homelessness Reduction Bill – Addressing “threatened with homelessness”

The Homelessness Reduction Bill receives Royal Assent today following its passage through the Houses of Commons and Lords. The Bill is a step forward at a time when homelessness is on the increase and it has been welcomed as such by homelessness charities such as Crisis. Many of the key features of the Bill have been preserved in its travel through Parliament but it has undergone a few amendments. The Bill had previously been amended prior to its second reading, however no amendments were made during its third reading in the House of Lords. One development in particular is worth examining, this being way in which the meaning of ‘threatened with homelessness’ has been adjusted by the Bill.

‘Threatened with homelessness’ is defined by section 175(4) of the Housing Act 1996:

“A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”

Whether a person is “threatened with homelessness” is important as it is one of the five criteria Local Authorities will consider when assessing whether they owe a person a homelessness duty. Housing advisers will often find the question of ‘threatened with homelessness’ arises with clients coming from the private sector. Most private sector tenancies are now assured shorthold tenancies which can be brought to an end using the section 21 procedure under the Housing Act 1988, which requires two months’ notice to be given. The vast majority of tenants who are served with valid section 21 notices will not have a defence to possession proceedings because it is a ‘no fault’ form of eviction, the landlord does not need to prove any wrongdoing on the part of the tenant, merely that he wishes to recover the property. If a tenant is served with a section 21 notice and has nowhere else to go, they will have to go to their local authority for assistance.

Even though a tenant who has received a section 21 notice will often have no defence to possession proceedings, when presenting to a local authority as being homeless or threatened with homelessness they are often told to wait until the section 21 procedure is exhausted, including being taken to court by the landlord and having a warrant of eviction served on them. Sometimes a local authority will not re-house such tenants until the day before the warrant of eviction is due to be executed.

This means that tenants must endure distressing court proceedings, fearing the knock of the bailiff at the door, while also being liable for court fees and the landlord’s legal fees (though capped at a certain amount). The situation is also unsatisfactory for landlords, who must incur unnecessary costs in taking action against tenants who often have no desire to stay longer than the period of the notice but are forced to do so because they must do what they have been told by the local authority.

In some cases, a tenant who knows they cannot defend proceedings may leave their home before the section 21 notice expires or before court proceedings are brought. Some local authorities have made decisions that such tenants are ‘intentionally homeless’ for not going through the whole section 21 procedure. If an applicant is found intentionally homeless the local authority will have only a minimal duty to assist them at all, providing accommodation for a short period before they must fend for themselves.

The Homelessness Code of Guidance, (paragraphs 8.14, 8.30 and 8.32), does try to assist tenants in these circumstances. These sections provide that where a tenant has no defence to a section 21 notice, the Landlord clearly wants possession back and the Local Authority has been unable to agree a tenancy extension with the Landlord, the tenant should be treated as “threatened with homelessness”, as it is no longer reasonable for them to occupy the property. However, as the Code is only guidance, Local Authorities are still inclined to not treat people as homeless upon receipt of a section 21 notice, even if it has expired by the time the applicant approaches them.

Following the second reading in the House of Lords, the Bill seeks to resolve these issues through introducing a new subsection (5) to section 175 of the Housing Act and amending the current subsection (4):

“(5) A person is also threatened with homelessness if—
(a) a valid notice is given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person’s occupation, and

(4)
(a) that notice will expire within 56 days.”

These amendments will make it explicit that Local Authorities must accept tenants who have been served with valid section 21 notices as being threatened with homelessness, therefore activating the Local Authority’s duties to assist applicants at a much earlier date. Hopefully in future we will no longer see cases where tenants and landlords must endure unnecessary court proceedings and incur unnecessary court fees.