Another post from our popular regular guest blogger Ben Reeve Lewis
The problem about re-housing and homelessness
I was posting elsewhere on this site in answer to a query about homelessness duties and I was mindful of the number of times I hear the genuine exasperation of landlords with nightmare tenants, or those in massive arrears who keep getting told by the homelessness unit that they have to go through the eviction procedure before they will pick the tenants up.
I thought I would help explain why that is.
Let me set the scene (And probably prompt a few annoyed replies by homelessness staff in the process). Councils have a legal duty to deal with anyone who makes a homelessness application to them. However, any form of assistance costs money and eats resources, especially when it comes time to provide temporary accommodation.
Also, in their defence, the government is constantly on their backs to reduce homelessness in their district, so every single person they pick up is another statistic that gets the audit commission on their case. So put bluntly, the pressure is on staff to look at as many alternatives to actually picking applicants up as they can.
So the idea is, although you are there to help, you try to use the law at your disposal to avoid picking up a case until there are no alternative’s left. For years now a massive and on-going debate has raged about the difference between ‘Homelessness prevention’ and what is called ‘Gatekeeping’, which is unlawful. This isn’t an article on gatekeeping, so please let’s have no responses of that kind here thank you very much.
The Law
Now all homeless applicants get subjected to 5 investigative questions:-
- Are they eligible for assistance?
- Are they homeless?
- Do they have a priority need?
- Are they homeless intentionally?
- Do they have a local connection?
There isn’t the space here to go into all these, but the crux of the problem as it affects landlords trying to get rid of problem tenants, is the definition of “Homeless”. There is more than one definition, it isn’t just having no roof over your head, although the way the government is going it could end up like that.
Without getting too technical (and with some sweeping generalisations in here too for the sake of speed) if a person has property that is available to them and where it is reasonable to expect them to occupy, then they fail this test.
Section 175 of the Housing Act 1996, which defines homelessness duties states
(1 )A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
So basically a tenant can continue to occupy property until a court finally orders them to leave. In fact it is accurate to say that a council cannot treat them as homeless until they have nowhere in the world that they have a lawful right to occupy.
Back to the landlord again then. From the homelessness unit’s perspective if a tenant owes rent, that is no business of theirs (until later on when they look at intentionality), the problem is the landlord’s and there is no duty really to bail the tenant out of trouble.
They can take the view that because of the debt that it is unreasonable to expect the tenant to remain in occupation. This was set out in the case of Hillingdon v Tinn, where the judge held that the property for Mrs Tinn was too expensive and the council should treat her as homeless on that basis. But it is difficult to persuade council’s on this, especially when so many people locally are in the same boat.
Other things can render accommodation unreasonable to occupy, such as where the person is suffering violence or threats or where the property condition is so poor or overcrowded that it is again deemed unreasonable. However, the key to this is that they must also take into account prevailing circumstances in the area. A dilapidated property on its own could be deemed unreasonable and make an applicant ‘Homeless’ within the definition of the Act, but a dilapidated property among many others in the same street, wouldn’t.
A council also have to treat a tenant as homeless within the Act if they are threatened with homelessness within the next 28 days. Be aware though that this doesn’t mean that they are threatened homeless just because a court date is coming up, or the notice seeking possession is about to expire. The landlord may lose the case, the judge could adjourn or suspend.
The 28 day rule bites when the relevant court order is issued. Or if they are excluded from the need to have a possession order, mainly lodgers, then a landlord giving reasonable notice may trigger the 28 day rule.
Back to Section 175 (a) above. “A person is homeless if they have no accommodation available – entitled to occupy by virtue of an interest in it”. Which means until the letting has been brought to an end by due legal process the would-be homeless applicant still has a legal interest in it and therefore the council will treat the applicant as not homeless at that stage.
The Code of Guidance
Homelessness units have a guide book on how they deal with cases, the ‘Homelessness Code of Guidance’. There are notes within it that suggest that councils can and should exercise their discretion when it comes to defining homelessness, and many other things. But it is not legislation, it is guidance only. The council must have regard to the code, but don’t have to follow it slavishly.
In an area where the council has more resources available, it may well take a softer line on waiting for the bailiff’s warrant than other councils, and that is as it should be. This is why you shouldn’t rely on an anecdote that so and so, got such and such from her council when she went there so why don’t you?
Every homelessness unit in the land has their own strategy for dealing with homelessness based on the resources in their particular area. There are massive differences between Cumbria and Camden.
So don’t think a council are being awkward in telling you that you must evict your tenant before they will do anything. By law they can’t really do it any other way.
Ben Reeve-Lewis
About Ben Reeve-Lewis: Ben has worked in housing in one form or another since 1987. He has variously been a Homelessness caseworker, Head of Homelessness for a local authority, a TRO and Housing law trainer. He now divides his time between doing contract Tenancy Relations work and as a Freelance housing law training consultant for the CIH, Shelter, Sitra and many more. Read more about Ben here.
Photo by jswieringa
Hi Ben
Very informative piece. Especially interesting to me as I have had to come at homelessness from the perspective of the council placing an anti-social tenant in our private block under Private Sector Leasing.
I wonder if I could be really cheeky and ask if you could provide me with an overview of how this works in terms of licences?
It seems to be a relatively quick process to remove someone under licence but it would help me to know a bit more about it.
Kind Regards
Sharon
That might be best done as a separate post, if you have time for it Ben.
Yes…..I feel another post coming on
I wonder if the hurdle is slightly higher than that. By section 183(1) the homelessness provisions apply only if there is reason to believe that a person is homeless or threatened with homelessness. Until a bailiffs appointment is made and due to be executed there is no reason to believe that a person is homeless or threatened with homelessness because they will either be entitled to occupy accommodation (s.175(1)(a)) or will occupy as a residence under an enactment (s.175(1(c)). The enactment being the general rule that a person cannot be evicted other than by a warrant of possession.
So most people might not even get past the first hurdle.
If an authority does have a bit more housing accommodation available than most and take a lenient view of when there is reason to believe that a person is homeless most authorities now have an idea of how the spending review will affect their budgets. By far the biggest expenditure is B&B and temporary accommodation.
Getting over this almost unsurmountable hurdle is one thing, getting through the temporary accommodation door might be quite another.
Ben, A detailed explanation and one that many readers will find useful in understanding the background to this common problem facing landlords.
Working in this arena, I understand the problem facing local authorities as they have to work within these guidelines, but surely councils should be looking at the bigger picture.
It does not suit most landlords to evict tenants, as it does encourage repayment of arrears that may have accrued for genuine reasons once the tenant has been turfed out. Further more they encounter a void and reletting fees.
It also does not suit the tenant, who ends up with an impaired credit history and is unlikely to be considered suitable for private rented accommodation again when a future landlord finds our through referencing that the tenant was evicted from their last home.
Finally, all it does is delay the inevitable for the council, as the tenant eventually does end up “homeless” and another statistic that the council don’t want, but now with a bigger price tag on their neck, called temporary housing.
We are working to protect landlords against short term payment problems to support tenancies, encourage local authorities to “prevent” rather than “cure” problems, and help all parties concerned maintain sustainable tenancies, which ultimately keeps costs down for the taxpayer!
Damn. I knew this would happen. I didnt want to extend a debate about homelessness on Landlord Law but like a dog with a bone I have to comment haha. And it also helps landlords understand the big picture they are part of
Stephen You are right. And there are caveats. The code of guidance says, on the matter of Section 21 proceedings, that council’s should basically consider the reasonableness of tenants subject to these proceedings when they may have no defence to the action and incur costs uneccesarily. even going so far as to state that it should be considered unreasonable to expect them to remain beyond the date of expiry of the notice. however, given that the vast majority of tenancies are AST and S21 the most common route of eviction where does that leave a resource strapped council? which is probably all of them. Do they pick every case upon expiry of a section 21?.
I will nail my heart to my sleeve on this one (albeit with a cringeing sense of “I wish I hadnt said that”) and say that I think the whole gatekeeping debate is complete BS. Homelessness units would collapse if they didnt do it.
I got sent to North Wales by the CIH last year to train a council who had been done by the Ombudsman for gatekeeping, with staff training being part of their penance. They were genuienly hurt and mystifed about why they were in that position. I told them, “You didnt do anything that other councils’ arent doing. Your only sin was…..you got caught”, and I’m sorry if people think that is an outrageous comment but Legal arguments are one thing. Dealing with 30 homeless applicants a day through your front door is another.
And Damon. I agree with you too and I was drawn to 2 things you said, about the council having to deal with them in the end anyway and about them not seeing the bigger picture.
Seeing the bigger picture is a luxury they cant afford. it is all about temporary accommodation budgets, everyone in homelessness, including me, is constantly in Blue light mode, just responding to emergencies. If they can put off picking someone up this week, that works fine. Long term aims for a homelessness unit are the stuff of meetings for senior managers to come up with statistics to satisfy government targets, not of front line realities.
If they pick up a case, it becomes a statistic that goes on what are called P1e’s, that have to be filed with the government on a weekly, fortnightly and monthly basis. too many and the governemt jumps on them for having excessive homelessness cases, whilst at the same time telling them that cant gatekeep to keep their figures down.
The government are proposing many major changes to the way we organise our society. This area needs a major re-think too
I think you credit Councils with far too much intelligence. I have an e-mail from Westminster City Council which states categorically that it is not the Council’s responsibility to rehouse homeless tenants. It’s from the Environmental Health Department, but it’s indicative of a general level of ignorance.
LOL that doesn’t surprise but bear in mind that EH isn’t the homelessness unit though. Having said that there is a nice case law of Regina B v Southwark LB which always raises a smile where the council held that a person, (B) who was released early from prison on an electronic tag was not homeless because they were still, technically accommodated in prison. This wasn’t a Friday afternoon decision by a shattered adviser either, it had to be overturned by the courts.
Councils can come up with some whacky decisions but as I said above the law doesnt help either. A year or so ago there was a lower court case of AB v Leicester (if my memory serves). Where the council’s homelessness department asked the applicant for their immigration details to prove she was eligible for assistance and she refused to supply them.
Leicester, not unreasonably, said “on your bike then love”. She appleaed and the courts held that it is for the council to prove or disprove the facts in the case, not the applicant, and where a council cant prove it they have to give the benefit of the doubt.
That is actually the correct legal decision but the law itself is crazy and unhelpful
Hello Ben, all very interesting but we are not all up on the term ‘Gatekeeping’ please can you explain this further and how it applies to the council.
Thanks
Ah yeah, sorry about the jargon anonymous. Gatekeeping????? Hmmmm. Basically it is breaking the duties that a homelessness unit should obey in order to keep a person off of the homelessness statistics sent to the government to make it look like you are doing a good job in tackling homelessness in your area.
For a few years now the government have pushed an agenda that is called ‘Homelessness Prevention’. It sits alongside the duty to investigate a case, in terms of the 5 tests mentioned in the article. The question is what is the dividing line between Gatekeeping and Honest Prevention?
The law, as Stephen O’Neill points out, states that a duty to open a homelessness case arises when the council have “Reason to believe” a person may be homeless. So a person could turn up a the homelessness unit and say “I’m homeless” and the unit give them a tenancy depsoit and set them up with a private landlord and dont put them on the homelessness figures.
I personally think the whole issue is mendacious and that the government should just be honest and say its all about prevention, with homlessness applications being reserved for specialist cases.
An old homlessness auditor for the old Office of the Deputy Prime minsiter who shall remain nameless whose job it was to jump on council’s who did gatekeeping once said to me over a pint at a conference “You know the name of the game Ben. Get your figures down. We dont care how you do it, even if you break the law, just dont get caught”
Gatekeeping, sounds like you were using, ” you might as well kick him, everybody else does” as your excuse. Gatekeeping is an inexcusable, despicable and onerous practice, and any statutory homelessness organisation that uses it should suffer the consequences. You also cite an instance of some person turning up and getting a tenancy deposit etc on stating “I’m homeless” what planet are you living on? I’m sorry mate, I have enjoyed the majority of your postings to date, but the only BS espoused here is by the author.
I thought long and hard after reading your post George. I am not averse to a change of mind but I still stand by what I said.
The main bit of homelessness legislation as we know it is taken from Part III of the Housing Act 1985 which was drafted long before the right to buy kicked in and decimated social housing stock.
I think I have mentioned before that in the borough where I live and work there are approximately 1,400 homes available through our ALMO at any one time and 17,000 people on the waiting list. I am crap at maths so dont know what the percentage chance of getting a council house is (Please any budding Stephen Hawkins’ out there feel free to work that one out) And yet I am amazed at how many people I meet that still think they will get one if they have been brought up in the area.
We rely on private landlords coming on board to discharge homelessness duty by placing homelessness applicants in their accommodation. even 10 years ago I wouldnt have envisaged this but there we are. Placing a homeless applicant in a private let is a legitmate disharge of duty and it has been since the Housing Act 1996 came in.
So. A person applies as homeless. the council say “Ah we can give you a deposit and rent in advance, and set you up with a private let with Mr Birch down the road. (thus avoiding placing the case as a homelessness statistic and committing Gatekeeping)The applicant says “No. I demand my Part VII (Duty to investigate) rights. so the homelessness unit stick them in a crappy bedsit and do the required 33 day’s worth of investigations and decides that they are owed the full housing duty under section 192 and then offers them the same place on the same terms as when they first walked through the door. What has been acheived in the name of the prevention of gatekeeping……for either the homelessness unit or the applicant?
The government says that an HPU cannot place families in bed sit accommodation for more than 6 weeks. It also passed a law stating that by 2010 all homelessness units in the country have to get their figures down by 50% and yet they also have to deal with any cases that present themselves as homeless. How does any HPU do that lawfully? We get around 150 familes every week through our doors, with 1,400 possible social homes on offer theoretically.
I just wish the government would be honest about what they want. For 20 years I have worked with and trained homelessness investigators and prevention staff. they are lovely comiitted people who get sworn at and threatened by their clients and their managers chasing statistics.
The nonsense I object to is this surface image of being seen to champion the rights of the homeless and the reality of restricting councils in the discharge of their duties whilst at the same time secretly condoning breaches in law as long as the figures make the particular government in charge look good
Hi Ben,
A good piece on “Homelessness” per the legislation. My tenants are now out, and they took all their stuff with them. I have now booked my urgent life saving operation for next Tuesday (7th) which had been postponed due to my no fixed abode status until the tenants got out of my house.
I have a question which I cannot find on any of your previous blogs, that of recovering the court and solicitors costs from the tenant?
Kepp up the good work!
Alan
If the court made an order for costs, then you enforce this via the court enforcement procedures the same way as any other money award. Eg bailiffs, attachment of earnings order, etc.
I have to say that none of the proceedures are particuarly good (although they can work sometimes), and if your tenant has no money then it will really be a complete waste of time as you can’t get blood out of a stone.
Glad things are working out Alan.I know your post relates over to one you made about responsibility ofr tenant’s belongings. Did the homelessness unit pick them up?
Tessa is absolutely right. As galling as it may be, sometimes you have to recognise when you are on a hiding to nothing I’m afraid.
Get on with getting well and put all your energy into that rather than beating yourself up about justice and what should have hapened.
put it down to Larkin……….(does anyone know what that phrase means?????????)
Sorry I cannot find a reference to that phrase either. What I find so annoying is that they used the system funded by the local tax payer to rack up my bills and guarantee them a council house (they were in receipt of LHA aand could easily of got a private let) ahead of more needy people who may well of been on the housing list for a long time.
I intend going after them though for the intentional damage and rent as I know where they live! He is a local businessman and I can also make life difficult for him as well.
Well that goes back to the original post here about discharge of homelessness duties Alan. I dont know where you live but in a lot of areas there are simply no social homes availabel and yet people still think they will be able to get one if they go through the homelessness route.
The government are looking into this with Grant Shapps’s new proposals. By making an offer of private sector accommodation a legal discharge of duty, despite whether the applicant wants one or not.
As much as George disagrees (sorry to raise this again George) there is wide abuse of the homelessness system, admittedly probably more so in inner city areas where I work, but it is so wide and endemic that I know many people (myself included) who have become so worn down with trying to stay on top of all the scamming that we are looking to get our of the work altogether, and we all got into it to help people in genuine need.
We have recently had our latest training update on the new generation of fraudulent documents used by people to get social housing and have even had to resort to taking phoitographs of our applicants because there has been many cases of applicants applying but not being the same person who turns up at the hostel we provide for them.
But anyway, its my Sunday afternoon. Enough of that until 9am tomorrow. But bear in mind Tessa’s comments Alan, sometimes it makes no sense to throw good money after bad. Having said that a friend of mine recently got the money back that they lent to someone who did a runner. It took a year but she got there.