A short guide to the implications of the Homelessness Reduction Act for local authority caseworkers and other bodies
A guide to the new duties
Developed by Andy Gale – Housing Consultant
The Homelessness Reduction Act 2017
Introduction
The Homelessness Reduction Act 2017 (referred to in this guide as the HRACT) has become law but is unlikely to be enacted until 2018. The date of enactment, based on public statements, would appear to be likely to be April 2018 to provide time for secondary legislation, the Code of Guidance and for local authorities and partner organisations to be trained.
The HRACTamends Part 7 of the Housing Act 1996 and the legislation remains Part 7 of the Housing Act 1996 as amended.
There are 13 clauses that amend many existing duties and bring in a substantial number of new duties. How the Act is to be applied has been substantially changed and local authority decision makers will have to get to grips with the new duties and how to apply a substantially altered legal framework with new duties and changes to the current statutory tests.
This short guide attempts to set out what local authorities will be required to do. It also attempts to answer many of the common questions front line officers are raising. However, until a new Code of Guidance is published (likely to be early 2018 following a public consultation) it will not be possible to give a final definitive view on how the new Act will work.
This guide is just that - a guide. It has not been legally checked and does not form legal advice. It is my own interpretation of the new duties and their likely impact on day-to-day casework and decision making under the amended Part 7 Act.
Neither the author or Locata take any responsibility for the accuracy of the content and a local authority should always take its own view on what the new duties mean and, if in doubt, take their own legal advice.
There are several areas where there have been different interpretations of what the duty requires.
Also,be mindful that until the new statutory Code of Guidance is issued to accompany the new Act it will not be possible to give a definitive view on how the new duties must be applied.
However, it is important that local authority officers start to familiarise themselves with the new Act in order to begin to get to grips as soon as possible with what the new duties will require.
Q AND A AIMED AT ANSWERING THE MOST COMMON QUESTIONS HOUSING OPTIONS OFFICERS MAY HAVE
QUESTIONS ABOUT THE HOMELESSNESS APPLICATION STAGE / Page 14Q: What is the test for triggering a homeless application under the HRACT?
Q:What is the new duty on public authorities to refer, with consent, applicants they are dealing with who may be homeless or threatened with homelessness?
Q: Who are the specified public bodies likely to be?
Q: What are the implications of the new duty on specified public authorities to refer cases they believe are homeless or at risk of homelessness to a local housing authority? Will a referral always trigger a homeless application?
Q: Must the public authority refer the person to the authority, where on the information they have, the person appears to have a local connection?
Q: Will a specified public authority include Registered Providers – (Registered Housing Associations as the name in common usage)?
Q: Will a duty be put on a specified public authority to help and cooperate with actions to prevent or relieve homelessness once a duty has been accepted by the Council?
Q: What happens if upon receiving the referral a council tries to contact the person and cannot obtain any contact? Has a homeless application been triggered or not?
Q: Will the HRACT changes to Part 7 put an end to accusations of gate keeping?
Q: How must a local authority deal with an application from a tenant who has received a valid section 21 notice?
Q: Does the new ‘automatic fast track’ to the prevention duty for valid section 21 notice cases also apply to tenants served a section 8 notice?
Q: What happens in cases where a tenant doesn’t seek help until after a valid S21 has expired, or until after they have received a possession order?
Q: Will the Government require a landlord to notify their local authority when a section 21 notice is issued?
Q: What does the new law say about when a local authority must accept that a tenant is homeless and owed a Temporary Accommodation (TA) duty? Is a TA duty owed at a) the expiry of the section 21, b) the granting of possession order, c) the expiry of a possession order, or d) the enactment of a bailiff warrant?
Q: If at the point the applicant applies if there is clear evidence that the person is not eligible for help under Part 7, because they are not eligible under the immigration rules, does a homeless application have to be taken?
Q: Can an applicant apply to several local authorities and be owed a prevention duty at the same time from more than one local authority?
Q: Once the homeless application is triggered on the basis that the person may be threatened with homelessness within 56 days, or may be homeless, does this mean an authority must automatically go onto accept either the new prevention or relief duty if the applicant meets the eligibility test?
Q: What happens if an applicant who have had a prevention, relief, or main duty ended, comes back and makes a new homeless application?
Q: Given there is no local connection consideration at the prevention stage can an applicant, who may be threated with homelessness, apply to one Council after another consecutively following the ending of a prevention duty by one Council?
Q: Could a ‘post code’ lottery potentially occur at the prevention duty stage where an applicant chooses to apply to whichever local authority has, or is seen as providing, the best prevention help package?
Q: Will applications for prisoners within 56 days of release be owed the prevention duty or the relief duty?
QUESTIONS ABOUT HOW THE PREVENTION AND RELIEF OF HOMELESSNESS DUTIES AND APPLYING THEM / Page 23
Q: Given the resource implications on a local authority of providing prevention help regardless of local connection, can the ‘reasonable steps’ to prevent homeless be met by providing less help for those without a local connection than for those with a local connection?
Q: If when under a prevention and relief duty you can’t expressly provide less help for those without a local connection than those with a local connection is there a risk of challenge if the authority is not able to:
a)include in the personalized plan access to the housing register as a reasonable step, or
b)consider a single person for supported housing in both examples because of other criteria/rules that restrict access to the register or supported housing for those without a local connection?
Q: Where an applicant does not have a local connection can an authority perform the prevention or relief duties by including Reasonable steps to help the applicant retain or obtain accommodation in the area where they do have a local connection (as long as there is no risk of living in that area)?
Q: Why is there a need to properly make enquiries into whether an applicant is homeless or threatened with homelessness before accepting a prevention or relief duty? Isn’t it just easier and faster to just concede these tests and get on with taking action under a prevention or relief duty?
Q: What happens if a prevention duty has been accepted and the person is still threatened with homelessness at the end of 56 days?
Q: Must the prevention duty always run for 56 days if an applicant’s threat of homelessness is not resolved, or they do not refuse accommodation, or withdraw their application?
Q: If an applicant presents and they are only a few days away from being physically homeless, and nothing can be done to prevent it, is the local authority still required to accept a prevention duty because the applicant is not yet homeless, or can they accept a relief duty? If they have to accept a prevention duty for a few days, end it when they become homeless and then accept a relief duty it will increase the paperwork considerably?
Q: What happens if a relief duty has been accepted and 56 days have come to an end?
Q: Can the assessment and acceptance of a prevention or relief duty be contracted out to a third sector or another agency/ body who may be better placed to help single people?
Q: Can the assessment and acceptance of a prevention or relief duty be contracted out to a third sector or another agency/ body but the Council still retain other decisions on other duties under the amended Part 7 Housing Act 1996, such as any decision on priority need, interim accommodation duty or intentional homelessness?
Q: Can the assessment and acceptance of a prevention or relief duty be shared between the Council and a third sector third sector body so a ‘no wrong front door’ approach could be adopted, meaning a person is able to receive prevention or relief help at a service they may feel more comfortable in approaching?
Q: Can another service in the Council accept a prevention or relief duty and perform the assessment duties and the reasonable steps? For example, a case where there is a risk of homelessness resulting from poor housing conditions could be better dealt with by the Private Sector Housing Team/Environmental Health Team.
Q: If we do contract out some, or all, of the functions and duties out does this have to be a decision of full Council or can it be a Cabinet or Lead member decision?
Q: Can a local authority exercise its right to end a prevention or relief duty after 56 days (where the problem had not been successfully resolved) and carry on with prevention or relief work albeit that work would not be under a statutory duty?Is there a disadvantage of doing so?
Q: Following on from the above question does the answer mean that a local authority may routinely be keeping the duty open for longer than 56 days in order to have the chance of recording a positive outcome?
Q: What happens if either the applicant, or the Council, under a prevention duty has secured suitable accommodation but the Council is not able to say at the point the accommodation is secured that there is a reasonable prospect of it being available for 6 months or more?
Q: Surely it is logical to assume that if a local authority ended a prevention duty after 56 days, in the circumstances where the person is still threatened with homelessness, they would have to justify why they didn’t just carry on with the duty?
Q: I can see why it may be to the advantage of the applicant and the Council not to end the prevention duty after 56 days, but can you give examples of circumstances where the council might want to end the prevention duty after 56 days despite the person still being threatened with homelessness?
Q: What would happen in the common situation where a tenant has been issued with a valid section 21 and is owed the section 195 prevention duty and successful action has been taken to try and resolve the problem that resulted in that notice, but the landlord is not willing to confirm that they will not proceed with possession action until they are satisfied that the tenant will keep to any agreement reached to resolve the problem?
Q: The Relief duty section 189B states that a local authority must take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least:
a)6 months, or
b)such longer period not exceeding 12 months as may be prescribed?
This section of the Act mentions both 6 months and 12 months, I‘m confused?
Q: What happens if the accommodation secured to end the prevention or relief duty is secured by the applicant and not secured through an offer of accommodation made directly by the authority, or arranged by the authority? Does the authority still have to undertake all the checks to be satisfied that the accommodation secured by the applicant’s efforts is suitable?
Q: How many days following a homeless application have an authority got to make a decision on whether an applicant is eligible, and if so, homeless or threatened with homelessness and therefore owed a prevention or relief duty? Is it still likely to be 33 working days quoted in the Code?
Q: Is 33 working days, currently quoted in the Code, likely to have any relevance to the new Act?
Q:Once a prevention or relief duty is accepted how can the duty to keep under review a) the assessment and b) the ‘reasonable steps’ in their plan, be met?
Q: Given the potential resource implications that could detract from carrying out prevention and relief casework, what are the practical ways of meeting the duty to keep the case under review?
Q: How are the 2 duties for prevention and relief legally defined in the legislation?
Q: What does the duty to take reasonable steps under the prevention or relief of homelessness duties actually mean? What are reasonable steps?
Q: Will an applicant always progress from the prevention to the relief duty in the same homeless application?
Q: Can the prevention or relief duty be ended where an applicant has lost contact, or not responded to contact from the Council?
Q: When can you make the final decision on whether an applicant is or is not owed the main section 193 duty for being eligible, homeless in priority need and not intentionally homeless?
Q: What are the issues that should be clarified through the Code for when a decision on whether a main duty would be owed can be made?
Q: In what circumstances is an applicant who is still homeless, once the section 189B Relief duty has come to an end, not owed the main 193(2) housing duty?
Q: If we end the prevention or relief duty positively with accommodation secured with a reasonable prospect of being available for 6 months do we have to issue 2 notifications
1)a notification that the prevention or relief duty has ended through an offer or being satisfied that the applicant has accommodation secured with a reasonable prospect of being available for 6 months and
2)a further section 184 notification decision that the applicant is not homeless?
QUESTIONS ABOUT THE NEW SECTION 189A DUTY TO ASSESS AN APPLICANT’S CASE AND AGREE A PERSONALISED PLAN / Page 39
Q: What is the duty to assess an eligible applicants’ case and agree a plan and when does it apply?
Q: What is the assessment into an applicants housing and support needs and circumstances (referred to in this Q and A as assessment 2)?
Q: What is the duty to discuss and agree the actions to be taken by the Council and the applicant (referred to in this Q and A as assessment 3?
Q: Can the assessments 1, 2, and 3 be carried out together and at the same time?
Q: Must the outcome of assessment 2 and the ‘reasonable steps’ arising from assessment 3 be given in writing to the applicant?
Q: Does an authority have to give a written outcome of Assessment 1 (are you eligible and homeless or threatened with homelessness) before they can commence Assessment 2 (the needs and circumstances assessment), and before they can then commence Assessment 3 (discussion re the steps reasonable for the council and applicant to take)?
Furthermore does this require 3 separate notifications:
1) A decision that they are eligible and homeless or threatened with homelessness (outcome of assessment 1)
2) A decision on the outcome of the needs and circumstances assessment (outcome of assessment 2) and
3) A separate written personal housing plan notification arising out of Assessment 3?
Q: What happens if an authority assess that the applicant has significant support needs that need to be addressed in order to help the applicant prevent or relieve their homelessness, but have no access to the resources to meet the support need that has been assessed? Would the reasonable steps be reasonable if the Council cannot meet the support need identified?
Q: Can the new assessment duty be met entirely by an online self-assessment IT module?
Q: Does the new assessment of needs and circumstances, and discussions with the applicant regarding the reasonable steps to be taken always require a face-to-face interview?
Q: Will the Act be retrospectively applied to all applications made before the day the amended act is brought in?
Q: There are up to 3 assessments required when a homeless application is taken and the new legislation requires each of these assessments to follow on from each other. Does this mean that every applicant will have to have a separate interview for each stage?
Q: What happens if an applicant does not agree with the actions recorded in their personalised plan?
QUESTIONS ON CIRCUMSTANCES WHERE AN APPLICANT REFUSES A SUITABLE OFFER AT THE PREVENTION OR RELIEF STAGE OR DOES NOT COOPERATE WITH THE STEPS IN THEIR PERSONAL HOUSING PLAN / Page 45
Q: What happens if an applicant refuses a suitable offer at the Prevention duty 195 stage