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.
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.
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