The Immigration Act 2014 and Local Authorities – A Still Greater Housing Role for Social Services

Part 3 of The Immigration Act 2014 is likely to come into force nationally shortly following a 6 month pilot in the West Midlands.  I won’t go into detail about the Act here. Further information can be obtained from blog posts by  Nearly Legal – Tessa Shepperson – Trisan Hyatt at Invictus Chambers  and from the You.Gov website. In a nutshell, the Act provides that landlords who rent properties to tenants who do not have leave to enter or remain in the UK will be liable to be fined. This is designed to stop private landlords from renting properties to anyone who cannot show that are entitled to be in the UK.

As with previous initiatives to make like difficult for migrants this Act is likely to add to the existing burden on local authority Social Services Departments in providing assistance to those poorest members of society who are excluded from mainstream benefits and services.  It will once again fall to Social Services staff to prevent people who have children with them or have special needs from becoming street homeless. This is because Schedule 3 of the Act excludes certain tenancy agreements from those which cannot be let to persons without leave to enter remain. These include accommodation provided by local authorities.

Paragraph 7(1) excludes from the reach of the Act any agreement—

(a)under which accommodation is provided to a person as a result of a duty or relevant power that is imposed or conferred on a local authority by an enactment (whether or not provided by the local authority), and
(b) which is not excluded by another provision of this Schedule.
(2) Relevant power” means a power that is exercised for, or in connection with, a purpose of providing accommodation to a person who is homeless or is threatened with homelessness
(3) In sub-paragraph (2) the reference to a person who is homeless or is threatened with homelessness is to be read in accordance with—
(a) in relation to England and Wales, section 175 of the Housing Act 1996;
(b) in relation to Scotland, section 24 of the Housing (Scotland) Act 1987;
(c) in relation to Northern Ireland, Article 3 of the Housing (Northern Ireland) Order 1988 (S.I. 1988/1990 (N.I. 23)).

This is going to mean that overstayers or other persons who are not able to obtain private sector accommodation directly from private landlords or letting agencies and are facing street homeless are going to have to apply to Social Services for assistance. This is of course already happening where the persons not have enough money to obtain or keep a private tenancy. To these persons there will now be added those who would have been able to afford to pay for private accommodation but cannot find a landlord who is willing to take them on because of the new Act.

I say that it will be Social Services who have to do the work because staff in Housing Departments are generally able to refuse to provide any assistance where the applicant is not “eligible” for housing  due their immigration status pursuant to  Section 185 of the Housing Act 1996.   Unlike their colleagues in the Housing Department, the staff in the Social Services Department must assist these applicants even if they are excluded from receiving assistance under Schedule 3 of the Nationality, Immigration and Asylum Act 2002 where a breach of their human rights would arise if assistance was withheld. Those who might have been housed under Part 7 of the Housing Act 1996 because they have children living them will be seeking accommodation by way of assistance under Children Act 1989 and those who would have been housed due to medical conditions rendering them vulnerable would be asking for accommodation under the Care Act 2014.

Social Services Departments in many London Boroughs have already had to set up No Recourse To Public Funds teams to deal with persons facing destitution because their immigration status prevents them from receiving mainstream housing and benefits. They have to try and find housing for those applicants whom they are not able to turn away in the same way that the Housing Department can.  This already places a considerable strain on staff who only have limited resources and are unlikely to have very much housing training. Although it is common for Social Services Departments or Legal Departments to write to me saying that Social Services are not  “quasi letting agency” the Immigration Act 2014 takes them another step along the way to becoming just that.

Social Services Department staff will soon face further demands for assistance from people whose only needs are housing related in that they cannot obtain private sector tenancies or social housing. Staff will have to find landlords for these persons and arrange for a tenancy to be granted for them in a way that brings it within Paragraph 7 of Schedule 3 of the new Act.  If they are able to do so they will be acting as a filter which negates the effect of the Immigration Act 2014 by bringing the new tenancy agreement within the class of excluded agreements set out in Schedule 3 and allowing the landlord to grant a tenancy to the person because it is now provided as a consequence of a duty or power imposed or conferred upon a local authority. Alternatively, if a private landlord cannot be found they are going to have to house the applicants themselves.

A practical step for Social Services  staff might be to provide homeless persons without leave to remain who can find landlords with a letter indicating that the council will be able to assist in endorsing a request for the tenancy if necessary if the landlord were minded to grant it but for the risk of a fine under the Immigration Act 2014. Having said that it is likely that by breaking cover and having to reveal their immigration status in order to avoid homelessness an overstayer would become known to the authorities and have to stop working pending the outcome of an application for leave to remain in the UK. This is likely to cut off their income and stop them from being able to afford to pay for private accommodation themselves. As such they will be added to the large group of people facing destitution without assistance and funding from Social Services.

 

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