The United Kingdom faces an unprecedented political and social crisis; one of homelessness and a chronic shortage of affordable and social housing.
There is agreement that homelessness has no place in twenty-first century Britain, and whilst I acknowledge that some efforts have been made by the Government to tackle the issue, there remains the continued existence of legislation which is directing exacerbating the number of people facing the prospect of homelessness.
The legislation in question surrounds what constitutes ‘intentional homelessness’, the misinterpretation of which is the source of untold distress for many and thus mitigates the attempts made by Government to help address the root causes of homelessness.
At present, under the specific guidelines set out in Part VII of the Housing Act 1996, many tenants who are served a Section 21 ‘notice’ (notice to vacate their home) are being urged by their local council to remain; for if they leave, they are bizarrely classified as ‘intentionally homeless’ and, therefore, are unlikely to qualify for priority housing, instead being placed on a waiting list. Whilst they will be granted ‘emergency accommodation’, (depending on a Section 184 outcome) this is often for prolonged periods, inappropriate and unsuitable in sustaining a normal life. After all, being served ‘notice’ is not a deliberate act of homeless. A landlord could, for example, serve notice because he or she wants to retain their property, which is not the fault of a tenant.
Conventional wisdom would say that if a tenant is served notice by a landlord, then they must leave. However, local councils are increasingly encouraging tenants to remain until a landlord is able to obtain a County Court Judgement in which bailiffs forcibly remove the tenant. This is the only way a tenant can qualify for long-term rehousing under the current provisions of the law.
The most frequently cited reason for loss of the last settled home is now the ending of an assured shorthold tenancy in the private rented sector. In the first quarter of 2018, this reason was behind 27% of all statutory homeless acceptances in England.
Indeed, when a local authority is approached for assistance by a household that has been served with an eviction notice of the landlord’s intention to seek possession under section 21 of the Housing Act 1988, a common response has been to tell the applicant to remain in situ until a court order/bailiff’s warrant has been obtained. Authorities often told these households that an application for homelessness assistance under Part 7 of the Housing Act 1996 (as amended) would not be considered before a court order/bailiff’s warrant was issued.
n June 2016 the Minister for Housing, then Brandon Lewis, wrote to all local authority CEOs setting out the Government’s position on this issue:
“The legislation relating to landlords and tenants, as well as statutory guidance on homelessness, seeks to strike the right balance between protecting the rights of tenants and landlords. But a local authority advises a tenant to stay in a property beyond the notice period and, therefore, compels the landlord to go to the courts to obtain possession, this results in significant costs. Authorities should not routinely be advising tenants to stay until the bailiffs arrive; there is no barrier to them assisting the tenant before this. By doing this local authorities miss a valuable opportunity to prevent homelessness.”
Soon after, the Homelessness Reduction Act 2017 came into force on 3 April 2018 (with limited exceptions). It has made significant changes to Part 7 of the 1996 Act. Its main effect is to place increased duties on local authorities to assess an applicant’s needs and to prevent and relieve homelessness. It should be noted that the changes introduced under the Act will not apply to an applicant who applied as homeless before 3 April 2018. However, authorities across the country continue to advise tenants to remain until bailiffs arrive, which one could assume is due to a shortage of appropriate housing.
When challenging a Government official about this evident fault in the law, they will refer you to the Secretary of State’s Statutory Homelessness Code of Guidance for local authorities. The Homelessness Code of Guidance for Local Authorities is issued by the Ministry for Housing, Communities and Local Government (MHCLG). It provides statutory guidance on how to interpret and apply the homelessness legislation and contains details of good practice that local authorities should adopt. Crucially, it is not legally binding and local authorities are only required to have regard to it.
In spite of this, it is clear that the issue of tenants being wrongly classified as ‘intentionally homeless’ persists. This was exemplified in the case of Samuels v. Birmingham City Council UK Supreme Court 2017/0172. Along with the Child Poverty Action Group (CPAG), the charity Shelter, intervened in support of a Ms Samuels, a lone mother who was treated as intentionally homeless because she didn’t use her non-housing benefits, that are intended to cover other living costs, to cover the £35 weekly gap between her LHA and her rent.
Ms Samuels ended up in rent arrears so her private sector tenancy was ended. Unable to find another rental property, she and her children became homeless. But Birmingham City Council refused to accept a duty to house her. They treated her as intentionally homeless because they considered that she could, in theory, have used some of her non-housing benefits to make up the shortfall between her LHA and her rent. On this basis they made the decision that her previous home had been affordable for her. This decision had a devastating impact on the family and, over five years after their legal challenge began, they remain in limbo in temporary accommodation.
Being found ‘intentionally homeless’ is a terrible situation for a family. It means that the council’s housing department no longer has a duty to help them. It means that families have to rely on the support of friends or family, or overstretched social services departments. Whilst the Secretary of State has the right to issue a statutory homelessness Code of Guidance, the Housing Act 1996 must be amended to explicitly enshrine into law that tenants who are unintentionally evicted, are then not criminalised at the hands of the law.
You can help in the fight to change the law. You can sign and share an important petition which has been published to call on the Government to amend the law and reclassify the meaning of intentional homelessness, and end the penalisation of those who are made homeless through no fault of their own.