Memorandum by the Housing Law Practitioners
Association (HOM 34)
GENERAL INTRODUCTION
1. This paper contains a brief response
prepared on behalf of the Association to the above.
2. Firstly, to state a little about the
Association. It is an organisation of solicitors, barristers,
advice workers, and independent environmental health officers,
and others who work in the field of housing law. Membership is
open to all those who use housing law for the benefit of the homeless,
tenants and other occupiers of housing. It has existed for over
15 years. Its main function is the holding of regular meetings
for members on topics suggested by the membership and led by practitioners
particularly experienced in that area (almost invariably members
themselves). It also holds both advanced and basic seminars for
members. For the last two years it has organised a Housing Law
Conference, the last in conjunction with the Law Society.
3. The Association is regularly consulted
on proposed changes in housing law, whether by primary or subordinate
legislation, and relevant codes etc by the relevant Departments,
including the former Department of the Environment, and is (or
was, in view of the current suspension affecting the system) on
the List of Consultees for the Appointment of Queen's Counsel
and Assistant Recorders. The previous Chair (until Jan 2000) is
also a member of the Law Society's Housing Law Sub-Committee.
The present Vice-Chair was appointed Queen's Counsel in 2000.
Another executive member has recently been a member of the Civil
Justice Council and is currently a member of its Housing and Land
Sub-Committee. Although the Association is London based, the membership
is country-wide. The Association is also informally linked with
similar Housing Law Practitioners Groups in the North-West, South
Yorkshire and the West Midlands.
THE RESPONSE
4. Because our experience is in the practice
of housing law rather than housing policy, we have chosen to focus
on some particular issues where we consider the law is failing
to assist the homeless
Appeals against homelessness decisions by local
authorities
The problem identified
5. Part VII of the Housing Act 1996, which
details the duties owed to the homeless, gives local authorities
themselves the duty to decide if and to what extent a local authority
owes an applicant any duty to provide assistance (section 184).
In particular the authority is required to make inquiries and
decide for itself whether an applicant is eligible for assistance,
homeless, in priority need and intentionally homeless in order
to identify the duty owed to an applicant.
6. Any review of those decisions is carried
out by the authority itself (section 202) albeit that the reviewer
will not have been involved in the original decision. Those decisions
in turn (or the original decision itself in some circumstances)
can then be appealed to the county court but only "on a point
of law"—ie by applying judicial review principals (section
204). It is to be noted that this is likely to be the only appeal
as a further appeal to the Court of Appeal is allowed only exceptionally
by the Civil Procedure Rules. Unlike nearly every other form of
appeal, the appeal in homelessness cases does not come from an
independent fact finding source.
7. "On a point of law" allows
the applicant to bring in issues of procedure before the court—for
instance that the authority failed to take into account a relevant
issue, considered something irrelevant, failed to make an essential
inquiry or failed to act fairly by giving sufficient reasons for
its decision or putting essential points to the applicant during
the inquiry process.
8. "On a point of law" does not
allow the applicant to ask the county court judge to assess whether
the authority's decision was right on its merits. The decision
is the authority's and cannot be interfered with unless it was
so obviously wrong and irrational that no-one could have come
to the conclusion reached by the authority. In addition the judge
cannot look at events or evidence that was not available to the
authority at the time that it made its decision—even though
(for instance) it has subsequently become obvious as a consequence
of additional evidence that the decision was wrong.
9. We consider that the lack of resources,
particularly in the London area, for those to whom a duty is found
to be owed has resulted in enormous pressure on decision-makers
to find that no duty is owed to applicants. HLPA believes (as
a consequence of necessarily anecdotal evidence from its members)
that decision-makers have been forced into a culture of adverse
decision-making as a consequence of the pressure created by the
lack of housing resources. Adverse decisions are made not because
the applicants in question are undeserving but because the authority
does not believe it can cope with the numbers of homeless people.
10. The subjective element of decision-making
(namely the present reality that facts and the ambit of inquiries
are matters for the authority) is being utilised as a weapon to
reduce the level of demand on resources. It should be borne in
mind that under the present system the authority is the only fact
finder in the review/appeal system.
11. The following are common areas of common
areas in which the system is being abused to the disadvantage
of homeless applicants:
— When deciding whether it is reasonable
for an applicant to continue to occupy accommodation (and consequently
whether the applicant is homeless or homeless intentionally),
authorities consistently adopt a harsh line requiring applicants
to remain in what is plainly unsuitable accommodation as a consequence
of factors such as extensive disrepair or severe overcrowding.
— When deciding whether a person is
in priority need by reason of vulnerability through physical or
mental health, authorities pay little attention to consultant
reports supplied by the applicant and shore up their decision
that an applicant is not in priority need by obtaining favourable
decisions from their own (in-house) district medical officers
who will invariably (with some notable exceptions) provide negative
advice despite their own lack of expertise, the limited information
before them and the absence of any attempt to meet the applicant
to assess his medical condition first-hand.
— The refusal of an offer of suitable
accommodation entitles an authority to decide that it has discharged
its duty and that no further assistance need be given to the applicant.
As a consequence even where a duty to the applicant has been accepted,
the lack of resources continues to impact on decisions made by
authorities, notably decisions that a property is suitable notwithstanding
difficulties concerning its location (eg distance from schools/doctors/supportive
community) or accessibility (high rise blocks for disabled or
families with small children).
12. The startling consequence is that a
person's entitlement to assistance turns on such issues as to
which authority he or she applies, its resources, and the differing
approaches taken.
13. HLPA believes that there cannot be any
justification for the existence of such a lottery:
— The policy of Part VI of the Housing
Act 1996 is that those who are homeless, in priority need and
who are not intentionally homeless will be given a safety net
and will be provided with assistance.
— There is nothing in the Act to suggest
that local policy was intended to play a part. Parliament cannot
have intended that authority's should be entitled to apply a "harder/softer"
policy. Such a policy is no more than an escape route from a statutory
duty.
The solution
14. HLPA believes that the court's current
need to defer to a local authority's view of the facts should
be removed. Any appeal to the county court should entitle an applicant
to appeal not only on a point of law but because he or she believes
that they can persuade the judge on the facts—the merits—of
their case.
15. The committee is asked to consider the
following in support of the proposal:
— Current appeals on a point of law,
if successful, generally result in a quashing of the decision
and the requirement for a fresh decision by the local authority
which itself can be challenged and quashed. There is little finality—but
considerable legal expense—under the current system. The
court's entitlement to consider the merits and decide "on
the facts" whether the applicant is entitled to assistance
will bring finality at an earlier stage;
— The current position is somewhat
anomalous in the context of housing law—even housing benefit
appeals have their own tribunals in which issues of fact can be
decided afresh;
— Any suggestion by local authorities
that such a change will "open the flood gates" can be
no more than an admission that they are currently using the subjectivity
allowed to them to operate the homelessness provisions unfairly;
— Any suggestion that appeals to county
courts will suddenly flood the court system is to ignore the true
benefit of a wider right of appeal, namely the likelihood of better
decisions by, and better training of, decision makers. It also
ignores the fact that the vast majority of such appeals are funded
by legal aid which requires an assessment of the prospect of success
before funding is granted. Better decisions will result in less
litigation.
Intentional Homelessness
16. As already indicated the full duty to
secure accommodation long term for an applicant depends on a decision
that s/he is not "intentionally homeless" as defined
by section 191 of the 1996 Act (see below for definition).
17. In our view the definition is too widely
drawn. A person does not have to intend to become homeless in
order to be " intentionally homeless". What the definition
requires is that as a result of any deliberate act or omission
the applicant becomes homeless. That is how it has been interpreted
by the courts. For example an applicant family can be held intentionally
homeless if, as a result of taking out a 2nd mortgage (eg to finance
a new kitchen) followed by a fall in income (eg because of redundancy),
mortgage arrears follow and the mortgage company takes possession.
18. It may be a different result would be
achieved on review or on appeal but in the meantime the applicant
family will be homeless -or they may be unable to pursue review
or appeal because of lack of access to advice (see the conclusions
to the Constitutional Affairs Committee's Legal Aid inquiry)
19. The original aim of the "intentional
homelessness" definition was to stop people deliberately
engineering their homelessness in order to obtain public housing.
We question whether there is any firm basis for supposing that
this occurs. However the section is drawn wider than is required
for that aim. Consequently a great many applicants do not qualify
for the assistance of the Act. To remedy inserting into the definition
"with the intention of obtaining accommodation under this
Part of the Act" would be sufficient.
Priority Need
20. Contrary to the belief of some, the
homelessness provisions do not apply to all those who become homeless
but only to those who are eligible for assistance (section 185
and essentially defined by regulation) and who are in priority
need for accommodation (section 189—see below).
21. As is apparent, the definitions exclude
homeless single persons or couples of any age unless they are
included under section 189(c) as "vulnerable". Apart
from that the other definitions are relatively easy to apply (pregnant
woman etc). Section 189(c) involves the exercise of a value judgement
to the facts in order to determine whether an applicant is "vulnerable"
as a result of one or other of the reasons stated. This is emphasised
by the Courts definition of "vulnerable" as "whether
[the Applicant] is, when homeless, less able to fend for himself
than an ordinary homeless person so that injury or detriment to
him will result when a less vulnerable person would be able to
cope without harmful effects" (R v Camden LBC ex p Pereira
1999 31 HLR 317 @ 330).
22. It is to be noted that not even the
elderly have a priority need under the definition unless there
is vulnerability as a result of old age. This is confirmed by
the ODPM's Homelessness Code of Guidance for Local Authorities
(July 2002) @ 8.14 "Old age alone is not sufficient for the
applicant to be deemed vulnerable".
23. Our view is that the definition of priority
need should be widened. Homelessness and its effects is not confined
to families and the definition should reflect that.
CONCLUSION
24. We hope these comments are helpful.
We would, of course, be glad to be of any other assistance to
the Inquiry.
David Watkinson, Barrister
Convenor, HLPA's Law Reform Sub-Committee
APPENDIX
Section 191 of the Act provides:
ss1—"A person become homeless intentionally
if he deliberately does or fails to do anything in consequence
of which he ceases to occupy accommodation which is available
for his occupation and which it would be reasonable for him to
continue to occupy".
Section 189 Housing Act 1996 provides:
"The following have a priority need for
accommodation:
(a) a pregnant woman or a person with whom
she resides or might reasonably be expected to reside;
(b) a person with whom dependent children
reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result
of old age, mental illness or handicap or physical disability
or other special reason or with whom such a person resides . .
.;
(d) a person who is homeless . . . as a result
of an emergency such as flood, fire or other disaster.
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