Memorandum by Andrew Arden QC and Caroline
Hunter (HOM 08)
1. A person's entitlement to homelessness
turns on a subjective (or local) approach to decisions, which
is both embodied, but also buried, in the statutory language of
the authority having "reason to believe," or being "of
opinion" or "satisfied" as to the qualifying elements
of entitlement. In substance, this means that entitlement to housing
turns on such issues as where an application is made, how it is
handled, etc.
2. The essence and substance of what is
held out by the law, however, is that those who are homeless,
in priority need, and who are not homeless intentionally, will
be housed. This is (so far as relevant) the only policy issue—and
was determined by Parliament. The subjective element—"of
opinion," "is satisfied," etc—adds nothing
to that policy. Local policy was not intended to play a part—indeed,
the purpose of the 1977 Act (continued in subsequent Acts) was
to overcome local practices and prejudices.
3. There is no part for local policy to
play in the national policy that the homeless (in priority need,
not intentionally homeless) should be housed, in contrast to the
position in relation to allocations, which is intended to continue
to permit authorities a continuing role in deciding priorities.
4. It is not "policy" to be "harder"
in decision-making, but an escape route from a statutory duty.
5. It is also anomalous when it comes to
enforcement: even housing benefit now goes to an independent appeals
tribunal, but homelessness enjoys only the section 204 appeal
"on a point of law". Although this has been upheld as
Article 6 compliant, it is plainly not the "best" such
compliance.
6. Nor is this about resources: there is
no reason to think that county court judges will house more; just
that there will be a truly objective and impartial decision on
the statutory criteria.
Andrew Arden QC, MCIH
Visiting Professor of Housing Law at the Faculty
of Development and Society, Sheffield Hallam University
Caroline Hunter
Barrister, Senior Lecturer in Housing Law, Faculty
of Development and Society, Sheffield Hallam University,
Respectively
Editor and Deputy Editor, Encyclopaedia of Housing
Law, Housing Law Reports, Journal of Housing Law
Authors of Homelessness & Allocations, Manual
of Housing Law, and Members of Arden Chambers, Barristers, London
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