Under part 7, Housing Act 1996, local authorities are under duties in respect of homelessness.

A person is regarded as homeless if s/he has no accommodation available for occupation [1]. This includes if the person cannot secure entry to their property or if it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where s/he is entitled or permitted both to place it and to reside in it [2]. Any accommodation must also be reasonable to continue to occupy.

A person is threatened with homelessness if it is likely that s/he will become homeless within 28 days [3].

If the local authority regard someone as homeless (but not in priority need, see below) then they must afford advice and assistance and they may secure occupation for the person but there is no absolute duty to do so [4].

Priority need

The following persons are regarded as being in priority need:

  • a pregnant woman
  • a person residing with specified children
  • a person who is vulnerable as a result of old age, mental illness, handicap, physical disability or other special reason
  • a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
  • a person as described in The Homelessness (Priority Need for Accommodation) (England) Order 2002 which includes certain young persons and persons fleeing violence or threats of violence.

If a person is deemed homeless and in priority need by a local authority (no accommodation available for occupation etc.) then, the authority shall secure that accommodation is available for the person (unless they refer the application to another authority) [5].

Intentionally homeless

These duties do not apply if the person became intentionally homeless which is defined as being – “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 have been reasonable for him to continue to occupy” [6]. Examples of acts or omissions which may be regarded as deliberate include:

  • lost his or her home because of wilful and persistent refusal to pay rent;
  • could be said to have significantly neglected his or her affairs having disregarded sound advice from qualified persons;
  • voluntarily surrenders adequate accommodation in this country or abroad which it would have been reasonable for the applicant to continue to occupy;
  • is evicted because of his or her anti-social behaviour, for example by nuisance to neighbours, harassment etc.;
  • is evicted because of violence or threats of violence by them towards another person;
  • leaves a job with tied accommodation and the circumstances indicate that it would have been reasonable for him or her to continue in the employment and reasonable to continue to occupy the accommodation

[paragraph 11.20 Homelessness Code of Guidance for Local Authorities (statutory guidance)] [7].

End of duty

For private rented sector purposes, before sections 148 and 149 Localism Act 2011 takes effect, the local authority’s duty to secure accommodation ends if the person accepts an assured tenancy from a private landlord [8] or, if the person accepts a qualifying offer of an assured shorthold tenancy which is made by a private landlord [9]. However, there is no obligation on the person to accept such an offer from a private landlord and a rejection does not affect the duty of the local authority to secure accommodation is available for him/her.

Localism Act 2011

Sections 148 and 149 Localism Act 2011 make significant changes to private rented sector offers of accommodation via local authorities.

Changes to homeless duties

From 9 November 2012 and in England only [10], the local authority’s duty to secure accommodation will come to an end if a person accepts or refuses a private rented sector offer [11]. In order for a refusal to be capable of ending a local authority’s duty, the authority must have informed the person in writing of the possible consequence of refusal (or acceptance) of the offer, that there is a right to request a review and the effect under section 195A (see later) of a further application to a local housing authority within two years of acceptance of the offer.

A private rented sector offer is one which is an assured shorthold tenancy being offered by a private landlord with the approval of the local authority and is a fixed term tenancy for a period of at least 12 months [12]. In addition, the authority must be satisfied that the accommodation is suitable for the applicant [13].

Suitability of private rented accommodation (for the purposes of an offer)

The Homelessness (Suitability of Accommodation) (England) Order 2012 provides the matters and circumstances in which accommodation is regarded as suitable or not for a person. The order takes effect at the same time (9 November 2012) and also only applies to England.

In addition to the tenancy being offered by the private landlord having to be for at least 12 months, the following must also be considered:

Matters to be taken into account in determining whether accommodation is suitable for a person

Article 2 provides that the local authority must take into account the location of the accommodation, including

  • where the accommodation is situated outside the district of the local authority,
  • the distance of the accommodation from the district of the authority;
  • the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household;
  • the proximity and accessibility of the accommodation to medical facilities and other support which are currently used by or provided to the person or members of the person’s household; and are essential to the well-being of the person or members of the person’s household; and
  • the proximity and accessibility of the accommodation to local services, amenities and transport.

Circumstances in which accommodation is not to be regarded as suitable for a person

Article 3 provides that accommodation cannot be suitable for the purpose of a private rented sector offer if any one or more of the following apply:

  • the local authority (“LA”) are of the view that the accommodation is not in a reasonable physical condition;
  • the LA are of the view that any electrical equipment supplied with the accommodation does not meet the requirements of regulations 5 and 7 of the Electrical Equipment (Safety) Regulations 1994 namely, that the equipment must be safe which includes being adequately protected against danger of physical injury or other harm which might be caused by electrical contact directly or indirectly;
  • the LA are of the view that the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;
  • the LA are of the view that the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation;
  • the LA are of the view that the landlord is not a fit and proper person to act in the capacity of landlord, having considered if the person has committed any offence involving fraud, dishonesty, violence, illegal drugs, or any sexual offence. Nor must the landlord have practised unlawful discrimination or contravened any housing / landlord or tenant law.
  • the LA accommodation is a house in multiple occupation subject to licensing and is not licensed;
  • there is no energy performance certificate for the property;
  • there is no gas safety record for the property; or
  • the landlord has not provided to the LA a written tenancy agreement, which the landlord proposes to use for the purposes of a private rented sector offer, and which the LA considers to be adequate.

Re-application after private rented sector offer – Section 195A

Section 149 Localism Act 2011 introduces a new section 195A into the Housing Act 1996 which deals with the situation if within two years from a privates rented sector offer being accepted, the applicant re-applies for accommodation, or for assistance in obtaining accommodation. This new section takes effect from 9 November 2012 in England only.

The first notable point is that if an applicant re-applies as homeless within 2 years of taking a private rented offer, the duty of the LA to secure accommodation applies even if there is no priority need [14].

Just as previously, there is no duty for the local authority if the person has intentionally made themselves homeless.

Section 21 notices and homelessness

We have written previously about the problems of homelessness decisions and section 21 notices where local authorities refuse to treat a person as homeless until a court order has been obtained after service of a section 21 notice. Often, even after expiry of the notice, the local authority will require the bailiff be applied for before the tenant will be deemed homeless.

The new section 195A totally changes this principle and where a person re-applies as homeless within 2 years and has been served a section 21 notice by a landlord, the person is to be treated as homeless from the date on which that notice expires. [15] An applicant is to be treated as being threatened with homelessness from the date the notice was given. [16]

This is excellent news for landlords because it should avoid the need for court proceedings after expiry of a section 21 notice. This is further confirmed by Supplementary guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 which provides at paragraph 39:

It is not necessary for a possession order to have been sought by the landlord for the applicant to be considered homeless.

There will however remain a couple of problems.

Firstly, presumably the tenant will only be regarded as homeless on expiry of the section 21 notice if the notice is valid. That will presumably include if any deposit has been protected and prescribed information given.

Secondly, this only applies if the tenant came through the local authority in the first place under a private rented sector offer. This means by default that the tenancy must have been for a minimum of 12 months so if the tenant is a problem after month 2 or 3 for example, although a section 21 notice may be served, it may not expire until the 12 month fixed term ends. A landlord should nevertheless serve a section 21 notice even if for 6 or 7 months in length to ensure the tenant becomes threatened with homelessness in accordance with the provisions discussed above.

It is very risky in our view for landlords to give a 12 month tenancy unless there is a solid home owning guarantor (even with a guarantor I would be reluctant to give such a long fixed term). Of course, a homeless applicant is still able to accept a tenancy of any length from a private landlord just as before the changes, it’s just that an acceptance of a tenancy for less than 12 months wouldn’t be a private rented sector offer and the advantages to the applicant discussed above wouldn’t be available.

Local authority must mention costs

Where a local authority tell a tenant to stay in possession and await a court order after expiry of a section 21 notice, they must tell the tenant that they will be liable for the court costs as a result.

Only once in a two year cycle

The duty to secure accommodation within 2 years can only happen once. So, if a person applies as homeless and accepts a private rented sector offer and re-applies after 8 months, the local authority will be under a duty to secure accommodation. However, if the person then re-applies again after another say 6 months, the duty would no longer apply.

  1. Section (175)(1) Housing Act 1996  ↩
  2. Section (175)(2) ibid  ↩
  3. Section (175)(4) ibid  ↩
  4. Section (192) ibid  ↩
  5. Section (193) ibid  ↩
  6. Section (191) ibid  ↩
  7. http://www.communities.gov.uk/publications/housing/homelessnesscode  ↩
  8. Section (193)(3A)(6)(cc) Housing Act 1996  ↩
  9. Section (193)(7B) ibid  ↩
  10. Localism Act 2011 (Commencement No.2 and Transitional Provisions) (England) Order 2012  ↩
  11. Section 193(7AA) Housing Act 1996  ↩
  12. Section 193(7AC) ibid  ↩
  13. Section 193(7F) ibid  ↩
  14. Section 195A(1) ibid  ↩
  15. Section 195A(2) ibid  ↩
  16. Section 195A(4) ibid  ↩