“I wasn’t going to have enough money to pay for a Good Lifestyle, which meant I’d feel ashamed, which meant I’d get depressed, and that was the big one because I knew what that did to me: it made it so I wouldn’t get out of bed, which led to the ultimate thing—homelessness. If you can’t get out of bed for long enough, people come and take your bed away.” ~ Ned Vizzini, It’s Kind of a Funny Story
I thought it might be useful to write a post about this as housing/homelessness law is supposedly my area of expertise. I apologise in advance for the fact that this post will be long, unillustrated, and even shorter on laughs than that essay I wrote on suicide.
I must stress before I begin that this advice is not exhaustive and that anyone worried that they might be at risk of homelessness should seek help directly. This advice is for people living in England and Wales only.
Please forgive me if it reads a bit clunky, it’s been quite a while since I’ve written anything this technical.
If you are homeless or threatened with homeless and approach your local authority for help they should take a homeless application from you. They should then look into your situation and assess you against five tests. These tests should be done in order.
Test 1. Eligibility – The first thing that the local authority should consider you are qualify for help. This decision is based on whether or not you have rights to live and work in this country.
If you, or a member of your household, are:
- A UK national who normally lives in the UK,
- A national of another country who has been granted indefinite leave to remain in the UK, or
- A worker from one of the EEA countries other then Romania and Bulgaria
You will probably be eligible to make a homeless application.
If you do not fall into one of these groups you may still qualify for help, especially if you have children, but the local authority will have to look your situation more carefully to see if you fall into one of the exceptions. You should seek direct advice from someone who can talk through your individual circumstances.
(Note: Any comments that try to suggest that eligibility is assessed any differently to this, particularly ones that mention asylum seekers, have a 99.9% chance of being deleted. This is because I’ve yet to hear such an argument that was anything other than misguided and racist. And I’ve been doing this for seven years.)
Test 2. Homelessness – The next thing the local authority will look into is whether you are actually homeless, or at least threatened with homelessness within the next twenty-eight days. It might be that you have rights to stay in your home that you are not aware of, or there may be something that the local authority can do to help you so that you don’t have to lose your home.
If you do have rights to stay in your home but it wouldn’t be reasonable for you to do so, for example, if someone you live with is violent towards you, or your home is in a very bad state of repair and is making you very poorly, you may still be considered to be homeless.
Test 3. Priority Need – The third test is crucial in determining how much help the local authority will have to give you. The test of priority need looks at whether you are considered to fall into a vulnerable group. Vulnerability is defined by the homelessness legislation and does not necessarily cover all the situations where you or I might consider someone to be vulnerable.
Households with dependent children under the age of 18 are automatically considered to be in priority need, as are household with pregnant women. You will also pass this test automatically if you are made homeless by an emergency such as a fire, flood, or similar disaster.
If there are no children in your household, and you are not pregnant, the local authority will need to be satisfied that you have some other condition or need that makes you vulnerable.
If you have a mental health condition and/or physical health problems the local authority should look at whether these are severe enough to make you vulnerable. You might also be able to show that you are vulnerable due to your age if you are an older person.
In these situations the test of whether you qualify as vulnerable is whether or not sleeping on the streets would put you at a greater risk of harm than the average Joe who has no other problem than the fact that he is a rough sleeper.
If you think you would qualify as being vulnerable under this test it will be helpful to your case if you can give the officer who is working on your case supporting letters from any medical professionals involved with your care. This is because most homelessness officers have not received any specific mental health training and so might not understand how your condition affects you.
If you are able to work in spite of your mental and/or physical problems it is especially important that you get any letters that you can from your doctors outlining the effects of your condition and the risks to your health if you were to be made homeless. This is because your homeless officer will want to process your case as quickly as possible, and is unlikely to give your situation much more consideration than, “Oh, s/he can still work, their illness can’t be that bad then,” unless you give them good reasons to do so.
As far as mental health problems go you shouldn’t have too many problems demonstrating that you are vulnerable if you have previously been admitted to hospital because of your condition, particularly if you have been sectioned. Most homeless officers will also accept that you are vulnerable if you are being seen by a psychiatrist as an out patient and/or you are being supported by a community psychiatric nurse.
If you have a condition such as depression which is being kept under control by medication provided your GP you are likely to struggle to convince the local authority to accept that you are vulnerable enough to fall into the priority need category. Most, if not all, local authorities will decide that you are not vulnerable if your illness, be it mental or physical, can be managed with treatment by your GP.
If you think that you would pass the vulnerability test that I have just explained and the local authority still refuses to help you seek further advice from an appropriate advice agency such as the Citizen’s Advice Bureau or Shelter.
You might also be able to argue that you are vulnerable if they have been forced to to leave your home due to violence, or if you have become homeless due to some ‘other special reason’.
The wording of this, ‘other special reason’, is deliberately vague, so that the local authority is empowered to help people who are vulnerable due to situations which were unforeseen by parliament. A special reason might be where a person has spent a long time in prison, hospital, or the armed forces, and become institutionalised, so that they will struggle to fend for themselves. It could also be applied to people who grew up in the care system, and people with chronic illnesses such as hepatitis C or HIV/AIDS.
Now, a lot of local authorities tell people who don’t have children that they are not in priority need and so there is nothing that can be done to help them. This is wrong, and you should challenge them on this, but you may need help to do so. The local authority is not allowed to refuse to let anyone make a homeless application.
It is worth noting that there are number of reasons why a member of staff at a local authority might wrongly tell you that you can’t be helped.
The reception staff at most local authorities know next to nothing about homelessness applications beyond the fact that people with children and people in wheelchairs always get helped. A lot of them then think that people with children and people with severe and obvious physical disabilities are the only people who are entitled to help.
If this is the case insisting that you speak to an officer who is trained in homelessness should be enough to get your application looked at properly.
Unfortunately some local authorities which get it wrong aren’t just incompetent, they’re guilty of what is known as gate-keeping. This means that they know that they should be talking a homeless application from everyone who approaches them, but have worked out that if they send people away instead, many of them will never realise that they should have been helped and won’t come back.
They do this because they are under pressure from the government to keep reducing the number of homeless people in their area. However, most people become homeless due to things the local authority has little or no control over, such as prolonged ill-health, redundancy, or domestic violence. So instead they try to keep the numbers of people who apply as homeless down instead, to keep the government off their backs.
Additionally, the homelessness department at each local authority is supposed to work within a tight budget, but few of them ever manage to stick to it.
I’m not to telling you this to make excuses for these local authorities, I’m merely providing you with the information so that you know what is going on if the staff at the local authority are less than helpful to you. I thought it might be better than leaving you thinking, “but why aren’t they helping me?”
It is also worth noting that getting angry at the staff when faced with this situation, while perfectly understandable, often tends to be counter-productive. Most local authorities have zero-tolerance policies for people who abuse their staff, and officers will start to screen the calls of members of the public who make a habit of swearing at them.
The best thing to do if you are faced with incompetence or gate-keeping is to calmly explain that know your rights and state the reasons why the officers should be helping you. Be polite, but firm and persistent. In a lot of cases this will be enough to get you the help that you need.
If that does not work seek help from a specialist housing adviser. Many more difficulties are resolved by having someone who is fully versed in homelessness law to speak to the local authority on behalf of the applicant, as the staff will know that they can’t be fobbed off.
Unfortunately there are cases where this will not be enough and your local authority will still refuse to help you, even if you have someone helping to fight your corner. In these cases you might be able to seek something called a judicial review. This is where a court judge is told about your situation and asked to insist that the local authority comply with the law and look at your homeless application. If your situation gets to this point you will need a solicitor to help you. You can find a solicitor using the search facility on the website of the Law Society.
If you pass these first three tests: If you are found to be eligible, homeless, and in priority need the local authority must give you accommodation*, at least on a temporary basis, while they finish investigating your homeless application.
If you do not pass the priority need test: If are not found to be in priority need the local authority does not have to give you accommodation, even if the alternative is that you have to sleep rough. The only duty that they will have to you will be to give you advice and assistance to help you find a place stay for yourself.
You can challenge a decision that are not vulnerable by asking for the decision to be reviewed, it will be best if you can get a specialist housing adviser to help you with this.
You should ask for the review within twenty-one days of being told that you have not met the priority need test. While the decision is being reviewed it is best to gather as much additional evidence of your vulnerability as you can to strengthen your case to the local authority.
If after reviewing the decision the local authority still says that you are not vulnerable you may be able to challenge this further but it is likely that you would need the help of a housing specialist or a solicitor to do so.
Test 4. Intentionality: The next thing that the local authority will want to look as is the reason that you are being made homeless. They will want to check whether anything that you did, or failed to do, resulted in your homelessness.
People can be found intentionally homeless if they had a perfectly, or at least reasonably, acceptable home but decided that they wanted a council house instead, so gave up their existing to home thinking that the council would have to house them if they were homeless.
People who had the money to pay their rent or mortgage but chose to spend it on other things, like computer games, exotic holidays, or pie, are also likely to be found intentionally homeless. While this might sound perfectly reasonable to most people it has had the unfortunate effect that many local authorities see that an applicant has rent or mortgage areas and look no further before stating that they made themselves homeless.
By operating blanket policies in this way local authorities ‘fetter their discretion’ which is unlawful. Each case must be decided on its merit. So if you were unable to pay your rent/mortgage because you lost your job, or because the benefits system made a screw up, or because you were off work sick and didn’t get paid, then you shouldn’t be found intentionally homeless just because you had arrears.
For people with mental health problems the local authority should also consider any evidence that suggests that person who did spend all their rent/mortgage money on pie did so because of the symptoms of their condition, or because their condition made them unable to appreciate the likely consequences of their actions. A person may only be found intentionally homeless if their actions were deliberate and they would have been reasonably able to foresee that those actions could leave them homeless.
Other things a person might have done to cause their homelessness are things like being evicted for anti-social behaviour or having lost their home because they were violent to other members of their household.
Again, if you are in this position and your actions were as a result of the symptoms of your mental health problem, or if your poor mental health meant that you weren’t able to understand that your actions might leave you homeless, the local authority must take evidence of this into account.
If you are found to be intentionally homeless: If you are eligible, homeless, in priority need, but found intentionally homeless, the help offered to you will be limited. The local authority will only have to offer you accommodation for a reasonable period of time while you make your own arrangements about where you are going to live in future.
The length of a ‘reasonable period of time’ is not set in stone and should be flexible taking into account the circumstances of each individual household, however, the bench mark across almost all local authorities is twenty-eight days.
You can challenge a decision that you are intentionally homeless by asking for a review. This should be done within twenty-one days of receiving your decision letter.
(Note: The local authority must give you a letter explaining the decision they have made about your homeless application. This is called a section 184 decision letter because it is section 184 of the Housing Act 1996 which says that they have to give it to you.)
If you have any additional evidence than you can give to the local authority while they are reviewing their decision you should so. If you are able to seek help from a specialist housing adviser from the Citizen’s Advice Bureau, Shelter, or any other local advice service before asking for the review I would recommend that you do that as well.
If the outcome of the review is positive, all well and good, if the local authority upholds their original decision you should seek specialist help. It might be that there are other ways to challenge the decision, but you will need a housing adviser or a solicitor to help you.
If you are NOT found to be intentionally homeless: If you are found to be eligible, homeless, in priority need, and not intentionally homeless the local authority will have a duty to put you in temporary accommodation until they can find you a suitable offer of settled accommodation.
What does she mean by a suitable offer of settled accommodation? Well, that all depends on who you are, when you made your homeless application, and where you live.
If the decision about your homeless application was made before April 2012 then settled accommodation means an offer suitable social housing from the waiting list** – with either an assured tenancy if you end up renting from a housing association, or a secure tenancy if you are given a council house. Suitable meaning that the accommodation is accessible to you. So, if you have mobility problems they can’t offer you a flat at the top of a high-rise that doesn’t have a lift, or if you’re homeless because you fled violence they shouldn’t offer to re-house you next door the perpetrator, that sort of thing.
The accommodation you are offered should also be fit for human habitation. This should go without saying, of course, but you’d be surprised; even those of you who think you wouldn’t. And if you need to be housed in a particular area because you need to be near to a specialist hospital, special school, or similar, then the offer needs to be of housing in that area.
If the decision about your homeless application was/will be made after April 2012 the type of accommodation that you should be offered will depend on where you live.
The Localism Act 2011 gave local authorities the option to discharge the housing duty that they owe to homeless people by finding them a tenancy, with a fixed term of at least twelve months, in the private rented sector.
It also gave them the option to granted what the government called ‘flexible tenancies’ rather than secure tenancies. Where secure tenancies are granted for life – unless the tenant does something to get themselves evicted – and can be inherited by the children of the original tenant, a flexible tenancy could last for as little as two years.
Now, some local authorities thought this was a rubbish idea. They decided that their existing arrangements were working out perfectly well, thank you very much, and they didn’t want to have to overhaul their entire lettings policies to incorporate a new way of doing things that they didn’t think would be suitable for the people in their areas.
If you live in one of those areas, good stuff. You will still be made an offer of suitable social housing from the waiting list** – with either an assured tenancy if you rent from a housing association, or a secure tenancy if you are given a council house. Suitable meaning that the accommodation is accessible to you.
Again, if you have mobility problems they can’t offer you a flat at the top of a high-rise that doesn’t have a lift, or if you’re homeless because you fled violence they shouldn’t offer to re-house you next door the perpetrator, that sort of thing. And the property that you are offered must be fit for human habitation and near to any specialist facilities that you need the use of.
However, some other local authorities thought that these new tenancy options were a wonderful idea, and would allow them to manage their housing stock in exactly the way they’d always dreamed of; if yours is one of these local authorities they must have made it clear in their lettings policy, so be sure to check that first.
What I’m about to give you now is a general overview of how the new systems can work. There are number of combinations of ways that a local authority can use the new measures but what your local authority is doing must be explained in detail in their own lettings policy.
If your local authority has adopted the new system you could find that you are still made an offer of social housing, you just won’t be given a tenancy for life, you’ll have to accept a flexible tenancy instead. The flexible tenancy could be for two years, five years, ten years, however many years really, but it will have to be the number of years that it says you should be given in your local authority’s lettings policy. The length of the flexible tenancy might be dependent on the circumstances of your household and could be different to the tenancy granted to some other homeless people.
(Note: If you do take up a flexible tenancy the local authority can’t just decide to boot you out at the end. They will have to let you know six months before your time is up whether they intend to evict you or extend your tenancy. If they do plan to evict you they will have to work with you to help you to make new arrangements.)
On the other hand, some local authorities are now making liberal use of the option to offer some, or even all, of their homeless households accommodation in the private rented sector. Again, check the lettings policy of your local authority to find out whether or not they are one of them.
A note on suitability: As I’ve said, the accommodation offered must be suitable for you. If you feel that it isn’t, you can ask for a review of the suitability of the accommodation. If your complaint is upheld the local authority should make you another offer of a different property that is suitable.
If you are going to challenge the suitability of the accommodation I would strongly advise you to get help in doing so. Also, please, please, please do not reject your existing offer of accommodation before the review of its suitability has been completed. Most local authorities will only make you one offer of accommodation. If you reject that offer and are unsuccessful in making your claim that the property was unsuitable the local authority will be under no obligation to offer you anything else.
The observant ones amongst you will have noticed that I started out by saying that there were five tests and I’ve only mentioned four. The fifth test is unlike all the others in that it is optional, the local authority has the discretion not to bother with it.
Test 5. Local Connection: A local authority should only consider the local connection test right at the end of the application process.
It should be as much of an after thought as I’ve made it now.
Unfortunately, many applicants find that their local authority tries to apply this last test right at the beginning, where they often, sometimes deliberately, get it wrong. They do this as another way to try gate-keeping.
The local connection test looks at whether the applicant has links to the area where they’re making their homeless application.
You have local connection to an area if:
- You have lived there for six out of the last twelve months, or three out of the last five years,
- You have immediate family living in the area,
- You work in the area, or
- You need to be in the area to get access to a specialist service such as a hospital, or are in need of care or support being provided by someone who lives in the area.
If you don’t have a local connection anywhere, you can apply wherever you want.
If you are homeless because you are leaving the military you can apply wherever you want as well.
This test is relevant because if it is decided that you don’t have a local connection in the area where you’ve applied, but you do have a connection to another local authority, you can be referred back to the place where you have a connection. And they will have to house you instead.
The only exception to this is if you’ve fled the area where you have a local connection due to violence, and you would be at risk if you were to return there. Nobody is allowed to insist that you return to a place where you will be unsafe. Once again, if the local authority cause you any difficulty over this you should seek help in asserting your rights.
*A note on interim/temporary accommodation***: Temporary accommodation is intended to be just that, temporary. This means that the accommodation offered to you on a temporary basis does not have to be of the same standard as accommodation which is presented to you as an offer of settled accommodation.
Temporary accommodation is cheap, and sees a high turn over of people, most people who stay in it don’t particularly like it. However, unless you are physically unable to access it, an environmental health officer is prepared to support you in stating that it is not fit to be lived in, or it is in an area where you are at risk of violence from an identifiable person, you are probably going to have live with it.
The only way to challenge the suitability of temporary accommodation if the local authority won’t grant you an internal review, which they probably wont, is through a judicial review. You won’t get a judicial review.
If you turn down temporary accommodation which the local authority offers to you before they have made a decision on your case they can close your application and refuse to help you any further.
If you turn down temporary accommodation offered to you after the local authority have made a decision that they have a duty to re-house you they can turn round and say that they are only going to look for a place to re-house you in. They do not have to give you any more accommodation to live in in the mean time.
*** The accommodation that you are given while the local authority investigates your homeless application is called interim accommodation. The accommodation that the local authority gives you to live in when they have decided that they need to re-house but haven’t found you a place yet is called temporary accommodation. Most of the time the interim accommodation and the temporary accommodation will be the same accommodation.
The distinction is important if a judge ever has to decide on your case, the rest of the time the different names are just confuse you, and to make people who work in housing feel smart because they understand the subtle difference.
**If the person in your household who is vulnerable is not eligible then the local authority will only ever have to re-house you into the private rented sector.
If you have family members who might not be eligible you should seek advice from a specialist housing adviser, and possibly an immigration specialist, before you think about making a homeless application.
As I said at the beginning, this advice is not comprehensive, it is intended as an overview for people who perhaps didn’t already know about homeless applications. If you encounter any problems while trying to make a homeless application I cannot express strongly enough the value of getting some individual specialist advice.
Where to go for help:
Shelter – 0808 444 4444 (National helpline, open 365 days a year, 8am – 8pm Monday – Friday, 8am – 5pm Saturday and Sunday.)
Community Legal Advice – 0845 345 4345 (National Helpline, covers debt, benefits, employment, and family law in addition to housing and homelessness. Open 9am – 8pm Monday – Friday, 9am -12.30pm on Saturday.)