Published on December 12, 2016
For those of us working in the policy area of homelessness and housing advice, 2016 has provided us with some food for thought.
Drawing on a variety of statistical sources, a combination of government statistics, freedom of information requests, and other published homelessness data, it has been calculated that the total number of people considered to be homeless in England could be 255,000.
Homelessness is not just about those sleeping rough. The total number includes households living in temporary accommodation, hostels and other forms of insecure arrangements, such as sofa surfing or overcrowded households. As entire households find themselves spending longer periods in temporary accommodation, each year the total number of homeless households can therefore increase.
In 2015-16 113,000 households approached their local authority to make a homeless application; these will have been both those presenting as newly homeless and those facing repeat homelessness.
In 2016 we have seen the introduction of a Private Member’s Bill, the Homelessness Reduction Bill (HC Deb 29 June vol 612 col 340). It is currently making its way through Parliament. The Bill seeks to strengthen the ‘safety net’ support for single homeless households and to refocus homelessness prevention for all households ‘at risk’ of homelessness. It has been reviewed and supported by the Communities and Local Government Committee (2016-17 HC 635).
When considering the Homelessness Reduction Bill, it might be useful to consider the history of homelessness legislation and what it has tried to achieve.
A brief history of homelessness legislation
The Housing (Homeless Persons) Act 1977
The 1977 legislation ensured for the first time, that the primary legal duty to house homeless people was the responsibility of the housing authority and not social services. Prior to this, housing the homeless was regulated by the National Assistance Act 1948 which was designed to be “the coping stone on the structure of the social services of Great Britain” (HC Deb 24 November 1947 vol 444 col 1603). Before the Assistance Act, homeless housing fell under the Poor Laws that existed at the time. These were abolished by s.1 of the 1948 legislation.
The Housing Act 1996
The 1996 Act reduced local authority duties to help homeless people by limiting the period of time for which they were accommodated to two years. It also required local authorities to have an allocation scheme regarding prioritizing of housing, s166A and under s.160ZA to maintain a housing register. The Act continues to exclude some people from homeless assistance on the basis of their immigration status and pursuant to s.124 increases powers for authorities to obtain possession of a home occupied by ‘anti-social tenants’ by introducing the discretionary power of ‘Introductory Tenancies’. If the tenant(s) display anti-social behaviour within the first twelve months of tenancy, possession can be sought without having to prove grounds to the court. The period of ‘Introductory Tenancy’ can be extended.
The Homelessness Act 2002
This legislation amended the 1996 Act and reinstated a long term re-housing duty to homeless households. Virtue of s.1 a duty is placed upon all housing authorities to:
[C]arry out a homelessness review for their district and formulate a publish a homelessness strategy based on the results of that review.
The basis of the strategy is to prevent and reduce homelessness in their area. Pursuant to secondary legislation, The Homelessness (Priority Need for Accommodation) (England) Order 2002 SI 2002 No. 2051, the definition of ‘priority need’ was extended to include additional vulnerable applicants, such as care leavers, those leaving institutions and those fleeing abuse or violence. The Act also abolished the duty housed in the 1996 legislation to maintain a housing register. Such registers are still kept as this is at the discretion of the local authority, yet the statutory duty to maintain has been removed. A duty allocation scheme duty does however still exist.
Following the 2002 Act, significant emphasis was placed on ‘homelessness prevention’ and adopting a ‘Housing Options’ approach. Housing Options focused on finding solutions for households who were either homeless or threatened with homelessness; which could avoid the necessity of making a homeless application, essentially adopting a two stage process; Housing Options first and if this failed, a homeless application. In more urgent cases, the two stage approach could be done in parallel. Since 2002 successive governments have provided support to this approach; via funding such as the Homelessness Prevention Grant and by direct and targeted support to local authorities.
The Localism Act 2011
This has made a significant changes by allowing the homelessness duty to be discharged by an offer of private rented sector accommodation, for a period of two years (known as the Private Rented Sector Offer or PRSO). Where an authority can show the PRSO is suitable for the household, then the applicant would not be given a choice regarding the accommodation and if they were to refuse the offer, the homelessness duty to the household would be ended.
The Act has also provides local authorities with far greater discretion regarding allocations of housing. The use of such schemes have been tested in the administrative courts. In The Queen on the application of HA v London Borough of Ealing a Claimant who had been subjected to domestic abuse/violence left their area of residence and applied for housing in another borough. Whilst accepting that it owed a “full duty” to house, the local authority refused to do so stating that it would conflict with its allocation scheme which required applicants to be resident in the area for five years. The court held the defendant’s decision to be ultra vires and made an order of certiorari – quashing the decision.
The rise of the private rented sector
Homelessness has increased in part because of a failure of successive governments to build genuinely affordable social housing in areas of demand. Where once housing standards and the challenges of the slum were paramount; affordability of housing is now a key issue.
Private rented accommodation has increasingly been seen as the solution to the demand for accommodation, but the cost of renting in the private sector is high. Lack of affordability stems from high demand, causing rent inflation. Demand for private rented accommodation has in part been driven by changes to the profile of homeowners; now it is unusual for either newly formed households or single people under the age of 35 to afford to buy, increasing the pool of households looking to rent. There has been an expansion in the numbers of properties for rent, from buy – to – let landlords and those who see housing as an investment or pension fund; however the supply has not met demand, so market forces have allowed rents to increase.
Private rents are not regulated; landlords can set rents to the maximum the market will bear and pick and choose tenants who can afford to pay that rent. When local authority homelessness statistics are analysed, the most common cause of a household presenting for assistance, is the loss of a private rented assured shorthold tenancy because the landlord has served notice on the tenant. Most commonly, this is a Section 21 notice under HA 1998. This cannot be challenged and may not indicate any fault on the part of the tenant. The landlord is simply seeking new tenants who can pay a higher rent. The challenge for the local authority is that the only accommodation they may be able to secure for the household is another private tenancy. It is not unusual therefore to see a revolving door of presentations.
Homelessness as a day to day experience for families Up to 120,000 children are currently living in bed and breakfast or other forms of temporary accommodation where a number of families share basic facilities; such as kitchens and bathrooms with other families or single people. The day to day pressure on such households is significant and the ability to live a normal family life almost impossible.
Local authorities are under enormous pressure to deal with the increasing numbers of presentations and many resort to placing families many miles from their local area. Such placements can have a significant impact on attendance at school, nursery, work or health services. In placing households out of area, authorities must have regard to the supplementary legislative provision, Suitability of Accommodation Order 2012 SI No. 2601. The instrument sets out key considerations when placing a household outside of area. The Supreme Court case in 2015, Nzolameso v City of Westminster, confirmed how this guidance must be applied and now local authorities must have clear policies to avoid, where possible, placing households out of their local area. However, for many authorities, placing outside area can be the only way to secure accommodation.
In 2015 to 16, 212,000 households had their homelessness prevented or relieved by the local authority (for example finding other suitable accommodation). Prevention or relief is recorded when, following an intervention or assistance, the household can either remain in their existing accommodation or have other accommodation (for a minimum 6 month period). The level of homelessness prevention is a significant achievement.
The prevention of homelessness, enabled by the provision of good quality advice, support and other interventions can be more positive for a household, than confronting the loss of accommodation and the gauntlet of the homeless application process (with real uncertainty about what the solution might be).
Since the Homelessness Act 2002, local authorities have worked hard to develop and implement effective homelessness prevention strategies and local services. The level of innovation and delivery of early intervention in some areas has been impressive.
In recent years, as demands increase and the need to ration and rationalise becomes the priority; there has been a convergence of housing options and statutory homelessness services, meaning that early intervention has not always occurred. There has been a shift back to the assessment of statutory homelessness, with a focus on those either already homeless or threatened with homelessness within 28 days.
The current Homelessness Reduction Bill could make some difference to this approach, by determining that authorities have a duty to prevent homelessness up to 56 days before the household loses their existing accommodation; this could avoid the scenario where an authority simply tells the applicant to wait for the bailiff to arrive and then return to seek help and assistance or make a homeless application. The bill also seeks to create a duty on the authority to provide effective advice for a household at risk of homelessness and this could facilitate more effective interventions to prevent homelessness. Such a duty, although onerous, could encourage a shift to earlier intervention, which could result in fewer households losing their accommodation and experiencing the detrimental impact of extended periods of time in temporary accommodation.
We will watch the progress of the bill in the coming months and housing advice providers could prepare for a shift to earlier intervention. If the bill does achieve royal assent, then the Government will need to commit to sufficient resources to allow effective implementation, so that local authorities can meet their new duties and the advice sector can support them in the process.
National Homelessness Advice Service (NHAS) Coordinator working for Shelter. Responsible for overall delivery of NHAS across England; delivering a housing law consultancy line, training & events, online information resources and a Housing Debt Specialist Casework team. The service supports the delivery of high quality housing advice & homelessness prevention services; working with professionals and volunteers in both the local authority and independent advice sector by providing ‘second tier’ support.
Previously seconded to Dept. of Communities and Local Government Preventing Repossessions team between 2008 and 2010 working on the preventing repossessions for homeowners and the Mortgage Rescue team. During her 17 years working for Shelter she has had a range of roles managing and developing services.