Statute
Section 189A Housing Act 1996 - As introduced by Homelessness Reduction Act 2017
Code of Guidance
Chapter 11 Homelessness Code of Guidance for Local Authorities
Case Law
R (S) v Waltham Forest LBC 2016
R oao XY v London Borough of Haringey 2019
Mr Miro Maric v Westminster City Council (2022) H40CL23
YR, R (On the Application Of) v London Borough of Lambeth (2022)
If anyone is aware of any other cases which I have not mentioned please let me know
Introduction
The Homelessness Reduction Act 2017 made a number of changes to the way in which local authorities are meant to deal with applications for assistance from homeless persons. Among these was the requirement to carry out an assessment of an applicant’s housing needs and then draw up a personal housing plan setting out how these needs were to be met. These requirements are set out in Section 189A Housing Act 1996 and covered in Chapter 11 of the Homelessness Code of Guidance for Local Authorities
When I first learnt of these changes I did not think that they would amount to very much. Under the old law in operation before 2017 local authorities had a duty to make inquiries into an applicant's circumstance and provide advice and assistance but councils had tended to treat this as a duty to do little more than provide a list of local private sector landlords and advise the applicant to contact them.
Since the 2017 Act came into effect I have come to realise that the changes which it made were much more significant than I had thought not least because the duties to assess and plan impose real obligations on councils to assist homeless persons which they cannot just go through the motions of observing. This has been demonstrated in the recent cases of Mr Miro Maric v Westminster City Council (2022) H40CL23 and R (ZK) v Havering LBC 2022 where councils were held to have acted unlawfully because of their failure to adequately assess and plan.
These two cases concerned the failure of the councils to provide the applicants with suitable accommodation. The basis of the successful challenges in both cases was that the council had failed to carry out a proper assessment of the applicant’s housing needs and that as a result the steps they took after that were unlawful. The duty to assess and plan now makes it much easier for applicants to challenge decisions to provide them with what they consider to be unsuitable accommodation. In the past the applicant had the difficult task of establishing that the accommodation which was offered was so unreasonable that no reasonable person could have considered it to be suitable for them. This was very difficult. The new requirements turn the tables so that the onus is now on local authorities to demonstrate that they have property assessed the applicants needs and the suitability of the accommodation offered. The authority also have to show that they have drawn up a plan as to how to meet the needs of the applicant and have sought to agree the contents with the applicant.
The housing needs assessment is also relevant to the Prevention Duty (Section 189B(2) and the Relief Duty (Section 195(2)). Councils are required to "have regard to their assessment" under Section 189A when discharging these duties.
The Duty To Assess
An assessment of the applicant’s housing needs is now an essential first step for a council in dealing with a homelessness application once staff have established that the applicant is eligible for housing and either homeless or threatened with homelessness. If an adequate assessment is not carried out the council will be at risk of having any later decisions such as whether an applicant is owed a duty or what constitutes suitable accommodation to offer to that applicant challenged for being based on an inadequate assessment.
The duty to assess an applicant’s needs represents a radical change from the way in which homelessness applications were processed before the Homelessness Reduction Act 2017 came into force. Back then council staff would make inquiries into an applicant’s circumstances pursuant to Section 184 of the Act for the purposes of satisfying themselves as to whether or not an applicant was entitled to be housed. In practice this was a negative exercise. Rather than consider how to assist the applicant, the council staff would be looking for reasons to refuse to assist at all do so based on making findings that the applicant was perhaps not eligible for housing, not in priority need or was intentionally homeless or had a local connection with another council. If the council could not find any grounds for refusing to assist the applicant they would issue a positive Section 184 Notice/decision letter accepting a duty to house them in the longer term. Applicants would be made an offers of accommodation but the suitability of that accommodation for that applicant was unlikely to have been considered in any detail. If the applicant did not consider the accommodation offered to be suitable they could challenge it but they faced an uphill struggle. The courts generally took the view that it was for local authorities to determine what was suitable and that it was not for the Judge to substitute their views for those of council staff whom Parliament had intended to make the decision. In practice this means that suitability could only be challenged on the difficult grounds of irrationality which meant that the applicant would have to persuade a Judge that no reasonable person could have considered the accommodation in question to be suitable for them.
Following the introduction of Section 1989A into the Housing Act 1996 by the Homelessness Reduction Act 2017, council staff now have to assess how an applicant became homeless, what sort of accommodation an applicant and their household needs and what support they may required at the start of the application and either record agreement about this or record how agreement has not been reached. The applicant is able to challenge the assessment at the start of the process rather than having to wait for a decision that no duty is owed to them or an offer of what might be unsuitable accommodation before making a challenge. The case law has demonstrated that Judges are prepared to undertake detailed analysis of whether councils have assessed the needs of an applicant and their household and the suitability of the accommodation offered to them. See for example the fine detail with which council's failure to adequately assess the needs of the applicant and the suitability of accommodation offered to her was considered by the Court in YR, R (On the Application Of) v London Borough of Lambeth (2022)
What Does The Duty To Assess Involve?
What the Act Says
Section 189A(1) provides that once a council have established that an applicant is homeless and eligible for housing they must “make an assessment of the applicant’s case”. The applicant does not have to be in priority need. According to Section 189A(2) this must include an assessment of:
- The circumstances that caused the applicant to become homeless or threatened with homelessness.
- The housing needs of the applicant including, in particular, what accommodation would be suitable for the applicant and any persons with whom the applicant resides or might reasonably be expected to reside.
- What support would be necessary for the applicant and any other relevant persons to be able to have and retain suitable accommodation.
In R oao XY v London Borough of Haringey 2019 Clive Sheldon KC DHCJ stated "The assessment does not, in my judgment, have to deal with and set out every need that an applicant might possibly have. It should, however, set out the key needs: those that would provide the “nuts and bolts” for any offer of accommodation: c.f. R (S) v. Waltham Forest LBC [2016] EWHC 1240 (Admin) at [92]."
The authority must notify the applicant in writing of any assessment they make and then try to agree with the applicant or persons residing with them the steps are to be required to take to obtain and retain accommodation and the steps which the council are to take to assist with this. The council must then record any agreement or disagreement on these points and the reasons for any disagreement in writing. This record should form the Personal Housing Plan which should be signed by the applicant to confirm agreement with the contents.
The assessment and agreement of steps to be taken are not one off steps but need to be kept under review until the council takes the view that it no longer owes a duty to assist the applicant. The council must notify the applicant in writing if they consider that any assessment and/or agreement is no longer appropriate.
Section 189A(9) provides that the authority must keep under review both their assessment of the applicant's needs and the 'appropriateness of any agreement reached or steps recorded' in the personalised housing. This duty continues until 'such time as the authority consider that they owe the applicant no duty under any of the following provisions of this Part'. This duty is reinforced by the Code of Guidance, paragraph 17.8 which states that 'authorities have a continuing obligation to keep the suitability of accommodation under review, and to respond t any relevant change in circumstances which may affect suitability, until such time as the accommodation duty is brought to an end'. In R oao XY v London Borough of Haringey 2019 Clive Sheldon KC DHCJ stated that 'the duty to review is an important one, as changes in the applicant's needs could affect the suitability of the accommodation offered to her' [53], as is apparent from the case-law at paragraph 36, below.
What The Code Of Guidance Says
Assessments and Personal Housing Plans are dealt with in Chapter 11 which adds a number points worth mentioning.
Paragraph 11.2 refers to the need for councils to adopt a positive and collaborative approach to applicants. This is to be contrasted with the more traditional approach of taking a more confrontational approach where housing staff focus on finding reasons to issue a negative Section 184 Notice and refusing to accept a duty to house the applicant.
Paragraph 11.3 states that if here is reason to believe that an applicant may be homeless or threatened with homelessness within 56 days the council must carry out an assessment to determine whether this is the case and whether they are eligible. It is arguable that this means that an assessment must be carried out immediately and assistance by way of temporary accommodation provided straightaway. Applicants should not be asked to come back at a later date such as when they receive a possession order or eviction notice.
Paragraph 11.3 states that everyone who applies for assistance must be interviewed and assessments must be carried out if there is reason to believe that they may be homeless or threatened with homelessness in 56 days. Given that anyone who has received a valid Notice of Seeking Possession for an assured shorthold tenancy pursuant to which has expired is entitled to be treated as homeless anyone who has received a notice will generally be entitled to an assessment because they have a two month notice period which is roughly 56 days.
Paragraph 11.10 confirms that the housing needs of all household members should be considered rather than just the applicant. It also states that their wishes rather than just needs should be considered even if the council do not consider that there is any prospect of those wishes being fulfilled.
Paragraph 11.12 confirms that councils should be mindful of duties owed under the Care Act 2014. With unitary authorities such as London boroughs those duties will be owed by the same council. It should be remembered that Section 9(1) of the Care Act 2014 states:
(1)Where it appears to a local authority that an adult may have needs for care and support, the authority must assess— (a)whether the adult does have needs for care and support, and (b)if the adult does, what those needs are.
It is therefore arguable that once staff in the Housing Department carrying out the assessment have obtained information indicating that the applicant may have needs for care and support the council will be under a mandatory duty to complete a Care Act assessment in addition to the housing needs assessment. It will not be enough for staff to decline to process the Care Act assessment on the basis that such assessments are considered to be the responsibility of the Social Services Department. At the very least they will need to make arrangements for someone in that Department to carry out the assessment.
Even though a non Social Services authority will not be under a statutory duty to carry out a Care Act assessment under Section 9 of the Care Act 2014 where they have reason to believe that the applicant may have a needs for support they will still be open to challenge for breach of the duty to consider the applicant’s need for support under Section 189A(2)(c) for failing to consider the applicant’s support needs to take steps to meet them.
Paragraph 11.13 states that councils will need to be flexible to the needs of an applicant. They should not require them to attend a face to face interview if they do not wish to do so and should consider the use of telephone or video interviews where appropriate.
Paragraph 11.14 recommends that the assessment includes at least one face to face meeting in person or remotely.
Paragraph 11.18, makes clear that authorities 'should work alongside applicants to identify practical and reasonable steps' both the applicant and authority should take to help retain or secure accommodation, which 'should be tailored to the household, and follow from the findings of the assessment'.
Paragraph 11.23 gives examples of steps which a council might take to assist. These include some steps which might not be immediately apparent including:
- Assessing whether an applicant with rent arrears might be entitled to a Discretionary Housing Payment. This might be important for people facing eviction due to rent arrears.
- Providing support whether financial or otherwise to find private sector accommodation. This could amount to finding private sector accommodation and paying the necessary deposit and rent in advance.
- Helping to secure or securing an immediate safe place to stay for people who are sleeping rough or at high risk of sleeping rough. This might be relied on by applicants who are not in priority need and not therefore owed a duty to provide accommodation under Section 188 of Housing Act 1996.
Paragraph 11.28 states that a council must take reasonable steps to prevent homelessness regardless of local connection. An applicant should therefore be able to require a council to provide temporary accommodation while arrangements are made to refer them to another authority where they have a local connection.
Issues Arising From Case Law
R (S) v Waltham Forest LBC 2016
It was held that the council had failed to assess the “nuts and bolts” of this applicant’s housing needs. This is a useful term which was adopted by the Court in the later Homelessness Reduction Act 2017 case of R (ZK) v Havering LBC 2022 in 2022.
R oao XY v London Borough of Haringey 2019
The Court held that the first three assessments failed to identify all of the needs but these errors were addressed by the time of the fourth assessment which was lawful.
Mr Miro Maric v Westminster City Council (2022) H40CL23
- Councils now have to carry out genuine assessments and provide adequate assistance
- A personal housing plan based on an inadequate assessment will be defective
- The personal housing plan was defective because it did not include advice about a housing register application
- The assessment will need to include consideration of any disabilities which the applicant has
Havering had unlawfully failed to carry out an adequate assessment and/or draw up an adequate Personal Housing Plan. This was because the documents which they had prepared did not amount to evidence of a proper assessment which dealt with the “nuts and bolts” of the housing needs of the applicant his family (a term referred to in the earlier case of R (S) v Waltham Forest LBC 2016 and/or a coherent plan. These documents would not enable a new housing officer picking up the case to know that the applicant’s housing needs were and what the plan was for meeting them.
YR, R (On the Application Of) v London Borough of Lambeth (2022)
The offer of accommodation which Lambeth made was unlawful for a number of reasons including the failure to adequately assess the needs of the applicant and her household
Challenging Housing Needs Assessments and Personal Housing Plans
There is no right to request a review of needs assessments but there is a right to request a review of the steps which the council proposes to take as set out in Personal Housing Plan. In practice this will amount to a review of the assessment which it is based on,
The effect of Homelessness Reduction Act 2017 is that anyone who is eligible for housing and is homeless or threatened with homelessness is entitled to assistance and accommodation from a council with housing responsibilities. The council will be under a duty to carry out an assessment and provide assistance immediately. This means that suitable accommodation should be available to all eligible persons rather than only those who may be in priority need as has traditionally been the case.
The changes introduced by Homelessness Reduction Act 2017 mean that where an applicant is offered accommodation which they consider to be unsuitable for them they will have a better prospect of challenging the decision to make the offer where they can show that their housing needs or those of a household member have not been adequately assessed. It makes more sense though for an applicant to request a review under Section 202 of the Housing Act 1996 at the earliest opportunity after receiving a Personal Housing Plan which sets out steps to be taken which do not include providing what they consider to be suitable accommodation. Alternatively they may apply for a Judicial Review of the assessment carried out by the council if that does not address their needs.
Steps Which Advisers Need To Take When Assisting Homeless Applicants In Relation to Assessments and Personal Housing Plans
This is a set of steps which I think will need to be taken. I expect that I will add to this list over time.
- Obtain a copy of the Assessment Report and Personal Housing Plan or documents setting out what these comprise from the applicant or the council.
- Identify the housing, support and care needs and housing wishes of the applicant and all members of their household.
- Establish the reasons for the applicant becoming homeless, as this might disclose additional needs which were not at first apparent.
- Identify what the applicant thinks would be suitable and unsuitable accommodation for them and the persons living with them and the reasons for this.
- Ensure that the assessment report and Personal Housing Plans have identified the matters set out above and, if not, whether they are open to challenge.
- Request a review of any steps set out in the Personal Housing Plan which the applicant is unhappy with.
- Send a pre action letter in relation to an inadequate assessment with a view to issuing Judicial Review proceedings.