Covid-19 and homelessness applications

By Prof Dave Cowan, Professor of Law and Policy (University of Bristol Law School)

The onset of Covid-19 gave rise to a massive effort to provide health care services and accommodation for homeless persons.  This includes not just those people who are rough sleeping, but also those otherwise at risk without a home, such as those living in hostels and B&B accommodation.  A range of organisations have assisted in this process, from medical health professionals to local authorities, who have procured empty hotels and other spaces for homeless persons to self-isolate as well as acted on the government’s guidance to keep temporary accommodation open.

In this post, I consider whether homeless persons who come to the attention of the local authority should be regarded as having made an “application” for homelessness assistance.  The homelessness legislation is one of the most litigated areas in public law, and I have recently drawn attention to the supposed cultural change brought about by the Homelessness Reduction Act 2018.  It is particularly relevant to students taking our unit in Rich Law, Poor Law, or engaging in work with our law clinic.

What constitutes an application is a critical question both for now and after the lockdown ends because, if an application has been made, the local authority comes under a range of duties, including: to provide (either itself or another provider) “suitable” accommodation to the homeless person pending a decision as to the duty owed to them by the local authority (which may be a longer term obligation); to store their possessions; to provide the person with a personalised housing plan; to relieve the applicant’s homelessness; to notify the applicant of the accommodation duties which are owed to them.  It will mean that, if an application has been made, then the applicant cannot be chucked out of their accommodation willy-nilly until the authority has made a proper decision on their application – there is an ongoing duty, irrespective of lockdown provisions.

In short, the key to unlock a range of obligations is whether the person has made an “application”, which is made in the following circumstances:

The following provisions of this Part apply where a person applies to a local housing authority in England for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he is or may be homeless or threatened with homelessness (s. 183(1), Housing Act 1996)

An applicant is simply a person making such an application (s. 183(2)).

The starting point is that no form is required for an application, and the person does not need to say they are explicitly seeking homelessness assistance.  The Code of Guidance, to which the local authority must have regard, states, “As long as the communication seeks accommodation or assistance in obtaining accommodation and includes details that give the housing authority reason to believe that they might be homeless or threatened with homelessness, this will constitute an application” (para 18.5).  As Collins J put it in Aweys v Birmingham CC [2007] EWHC 52 (Admin); [2007] HLR 27, [8],

If it is apparent from what is said by an applicant (for there is no requirement that an application be in writing) or from anything in writing that he may be homeless or threatened with homelessness, the duty is triggered. Thus if a person complains to a Council that the conditions in his existing accommodation are so bad that he wants a transfer or needs to find somewhere else, it is likely that the duty will arise … even if there is no application based specifically on homelessness.

So, if a person approaches the local authority for social housing through the waiting list, and adverts to the fact that they are (or will be) homeless, will be regarded as making an application, because “People who become homeless or threatened with homelessness, and who go to their local housing authority for accommodation or help, are likely to include some of the most vulnerable members of society and unlikely to be familiar with the statutory provisions”: R v Northavon DC ex p Palmer (1994) 26 HLR 572, 582; approved on this point in Bury MBC v Gibbons [2010] EWCA Civ 327; [2010] HLR 33, [31], Lewison LJ; R Men(Edwards) v Birmingham CC [2016] EWHC 173 (Admin), [8], Hickinbottom J.  In other words, the suggestion that the statutory phrase “applies to a local housing authority” requires action on the part of the person in seeking out the authority’s homeless persons unit is incorrect; rather, the question is whether it comes to the authority’s attention (ie “has reason to believe”) that the person is homeless.

Consequently, when a local authority makes provision (whether of accommodation or otherwise) under the Covid-19 emergency guidance for a person who they know is homeless, it comes to their attention that the person requires homelessness assistance, and an “application” has been made.  They may not tell the authority that they are, or will be homeless, but that will be obvious from their circumstances, and it cannot be regarded as an extension of the existing jurisprudence to regard such a situation as constituting an application for homelessness assistance – the authority will have reason to believe (a low threshold) that the person is homeless.  It does not matter which part of the authority makes that provision, and nor under what power accommodation is provided.  If a local housing authority’s park keeper were to discover a person sleeping rough in the park, arguably an application would be made.  Of course, the applicant themselves does not need to pursue the application, but the key point is that the authority’s obligations begin at that point.  This reflects a wider point about rough sleeping, and the much criticised rough sleeping count, in more regular times.

Certain persons who lack the capacity to comprehend or evaluate an offer of accommodation made by the authority cannot make an application.  However, an application could be made either by another member of their household with whom they can reasonably be expected to live; or by a deputy appointed by a Court of Protection under the Mental Capacity Act 2005.  There is an open question as to whether a person with a lasting power of attorney could also make an application.

Alterations to the legislation made by the Homelessness Reduction Act 2018 – which was supposed to lead to a bureaucratic “cultural change” – place a duty on certain public authorities to refer individuals who are homeless or threatened with homelessness to a local authority, with the person’s consent.  Whether such a referral constitutes an “application” for these purposes is an open question, but it is notable that the leading text on homelessness law submits that it is (HHL Luba, L. Davies, C. Johnston & T. Buchanan, Housing Allocation and Homelessness: Law and Practice, (LexisNexis, 2018, 5th ed: para 8.33); and, as I suggested in my Modern Law Review article, that must be right if one follows the logic of Palmer and Gibbons, although it depends on the information provided by the referring agency.   However, the Code of Guidance suggests that a referral will not constitute an application, although, if that is the case, its suggestion that “housing authorities should always respond to any referral received” is counterintuitive (para 4.19).

For these purposes, relevant public authorities include social services departments, emergency departments, urgent treatment centres, and hospitals in their function of providing inpatient care.  The local housing authority is responsible for setting up and managing the referral process.  If those other public authorities are aware that a household is or will become homeless, then they have a duty to make the referral, and such a duty is enforceable in the usual way.  In a situation of need for hospital and emergency beds, it is in everyone’s interest for the referral to operate in as streamlined a way as possible.

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