In our earlier briefing – homelessness figures at record high - we saw that homelessness was on the rise, with official statistics showing a staggering 65% rise since 2010, with 79,190 households recorded as being in temporary accommodation as at 30 September 2017. In the last few years, the sheer scale of the problem meant that changes to the existing homelessness legislation were urgently needed to try and curb the rising numbers.

MP Bob Blackman drew second place in the Private Members' Bill ballot in 2016/17 and his Homelessness Reduction Bill attracted government and cross-party support and gained royal assent on 27 April 2017. On 8 August 2017, MP Marcus Jones (parliamentary under-secretary of state for communities and local government) wrote to local authorities to advise that the government intended to commence the Act in April 2018.

The principal aims of the new Act, The Homelessness Reduction Act 2017, are

  • to prevent homelessness ever occurring
  • divert potential applications for homelessness by securing accommodation for the applicant elsewhere
  • to strengthen the duties to assess and assist everyone, irrespective of whether the council has a statutory duty to help them

A new code of guidance will accompany the legislation.

However, many local authorities have raised concerns that they have been given insufficient time to properly prepare for the new Act, and inadequate funds to implement it. This briefing explores the main new duties under the Act, and considers how likely it is that this ambitious legislation will achieve its aims.

Threatened homelessness – earlier intervention

Under the present legislation, councils need only accept a homelessness application from a person if they are homeless or threatened with homelessness, i.e. the applicant is likely to become homeless within 28 days. This means, in practice, that many local authorities will not accept a homelessness application unless the person has not only been served with a notice of seeking possession by a landlord, but also the landlord has obtained an order of possession, and often a bailiff's warrant as well to evict the tenant.

However, under the new legislation, the period of threatened homelessness has been extended from 28 to 56 days. This extension is to encourage local authorities to do more to prevent homelessness by encouraging applicants to apply earlier for assistance. In addition, there is a much longer period now for tenants served with a valid section 21 (S21) notice to seek possession by their landlord.

A person will be deemed threatened with homelessness if a valid S21 notice has been served, and they are required to leave the property by their landlord within eight weeks. This is intended to try and prevent authorities from refusing to accept a homelessness application from a tenant, until a court has made an order for possession against them.

However, a number of queries remain which have not yet been answered by the new legislation or code of guidance. In particular, is the tricky question of when a S21 notice will be deemed 'valid' by a local authority, and to what extent local authorities are expected to have the expertise to investigate such issues?

These types of notices that seek possession are notoriously difficult for landlords to get right and often mistakes are made. A landlord's failure to comply with the tenancy deposit legislation or landlord licensing scheme could make the notice invalid. However a housing officer will need to be properly trained to spot such mistakes in the notice.

A new advice service and referring on

Every local authority will need to create or fund a service which will provide advice and assistance free of charge on the following issues:

  • preventing homelessness
  • how to secure accommodation if homeless
  • an applicant's rights under the Act and the obligations of the authority

The legislation says this service must meet the needs of particularly vulnerable groups including former prisoners, care leavers, victims of domestic abuse, those leaving hospital and those suffering from mental illness.

There is also a new referral duty placed on other public authorities, such as social or health services. This means that where a specified public authority considers that a person (in relation to whom they are exercising their functions) is, or may be, homeless or threatened with homelessness within 56 days, they must ask the person for permission to give their contact details to a local housing authority of their choice. If the person does give permission, then the public authority must then notify the requested local housing authority.

The personal touch – applications and assessments

There is now a new assessment duty placed on local authorities which is likely to be one of the most onerous and challenging aspects of the new legislation for them. The legislation states that if a local authority believes an applicant is homeless or threatened with homelessness, then the authority must assess the applicant's case and provide a written personalised plan.

The assessment must cover why the applicant became homeless, the housing needs of the applicant (and his/her family) and what would constitute suitable accommodation for the applicant. The assessment also needs to consider what support is necessary for the applicant to have suitable accommodation and to retain this accommodation.

The draft Code of Guidance to accompany the Act, published in October 2017, stated that an online or telephone process would generally not be sufficient to complete an assessment and in most cases at least one face-to-face interview with the applicant would be required. Moreover, assessment officers need to be sufficiently skilled and trained in dealing with applicants who may find it difficult to talk about and disclose their situation, such as those fleeing domestic violence.

Step by step

The assessment should be agreed with the applicant, if possible, and set out the steps required of both the applicant and the local authority to ensure the applicant has and retains accommodation. The draft Code of Guidance makes it clear how central the agreed 'reasonable steps' are intended to be to the whole process. These include performance of the prevention and relief duties and any question of whether an applicant has refused to cooperate – see more details below.

Steps which it is likely to be reasonable for an authority to take, for example to prevent homelessness, include considering whether additional housing benefit (known as discretionary housing benefit) should be paid in rent arrears cases or assisting with the provision of 'sanctuary' measures in the current home for people at risk of violence who wish to stay put.

However, the main issue here is whether cash-strapped and time-poor local authorities will have properly trained staff in place to be able to deal with a number of complex issues that many homelessness applicants present with (often with multiple needs) and if not, whether cases will be properly assessed. If not, then local authorities will be dealing with the additional cost of legal challenges.

The new 'prevention' duty

Under the present legislation, a local authority only has a duty to assist applicants if they are eligible (in terms of their immigration status), homeless or threatened with homelessness within 28, days and are both in priority need and have not made themselves intentionally homeless. Priority need means, in general terms, that the applicant has dependent children or a physical or mental health issue or due to old age (or being in a particular category such as a care leaver), they are more vulnerable in housing terms.

Intentional homelessness, in general terms, means that the applicant has done or failed to do something (such as paying the rent on time and hence incurred rent arrears) which has led to their homelessness. However, the new 'prevention' duty will apply to all those who are eligible and threatened with homelessness, whether or not they are in priority need and intentionally homeless.

This new duty requires an authority, for such an applicant, to take reasonable steps to help the applicant to secure that accommodation does not cease to be available for his occupation. In deciding what steps to take, the authority needs to have regard to the applicant's assessment and personalised plan. While the first steps will be to explore whether the applicant can remain in his present accommodation, if this is not possible then the authority needs to try to assist the applicant to secure alternative accommodation.

A sigh of relief - the new 'relief' duty

Under this new duty, if a local authority is satisfied that an applicant is homeless and eligible for assistance, then it must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for his occupation for at least six months. Again, in deciding what steps to take, the authority needs to have regard to the assessment and personalised plan of the applicant.

Specific considerations need to be given, according to the draft code, to rough sleepers, or those who are at imminent risk of sleeping rough, and should include a collaborative approach to work with other agencies/services, such as health or social services. Local authorities are also encouraged to conduct inquiries into whether a full housing duty is owed to an applicant during the six month relief duty.

Failure to co-operate and challenging decisions

The draft code of guidance emphasises that local authorities need to recognise the circumstances, needs or issues of some applicants that may have contributed to their becoming homeless, and may also affect their ability to work with housing authorities in the first place.

However, a local authority does have the power to discharge one of the new duties referred to above if the applicant deliberately, and unreasonably, refuses to take an agreed or imposed step set out in his plan for securing and/or maintaining accommodation.

For a discharge of duty on this ground, the local authority needs to be satisfied that the non-cooperation in question was a deliberate and unreasonable refusal, rather than a mere failure to cooperate. These new duties will be open to an expanded legal challenge by way of a review or appeal.

Conclusion

The ethos of the new Act is to be applauded as all agree that urgent action is required to tackle the growing homelessness epidemic, particularly in our major cities where the numbers of rough sleepers are rising rapidly.

However, the challenges for local authorities are considerable and, in particular, the question is whether the government has pledged enough funds for the Act to be properly implemented. On 17 January 2017, the minister Marcus Jones announced that funding of £48 million would be provided to meet the additional costs for local authorities.

Subsequent amendments to the Act resulted in this sum increasing to £72.7 million. Local authorities gave this announcement a 'cautious' welcome but have asked the government to commit to a review of the Act's impact after two years to "ensure that authorities are fully equipped and funded to deliver the Bill's ambitions".

However, many London councils have reported their concerns that funding decisions and consultations have not progressed, with less than a month to go before the Act is implemented.