The Homeless Reduction Bill has now been agreed by both houses.
and is awaiting Royal Assent when it will become an Act. No date has been set for the Royal Assent.
Update: The Bill has now received Royal Assent on 27 April 2017 and so this is now the Homeless Reduction Act. No date has been provided for commencement of the sections detailed below but that will be the final stage. It could be later this year.
Section 21 notice and threatened with homelessness
A large problem for landlords is when a section 21 notice has been served, the tenant goes to the local authority with the notice and the tenant is told that they must wait for a court order and possibly bailiffs to be deemed as homeless and eligible for assistance. This advice given throughout the country is contrary to guidance but is nevertheless widespread.
The court has previously ruled that a local authority may ignore the guidance because it is just that – guidance.
Amongst other things, the Homeless Reduction Bill aims to stop local authorities issuing that advice and ensure they deal with enquiries.
When the Homeless Reduction Act commences, it will legislate for when a person is threatened with homeless and no longer will this be based upon guidance.
Clause 1 of the Bill will amend the Housing Act 1996 adding a new definition of threatened with homelessness:
“(5) A person is also threatened with homelessness if—
(a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person’s occupation, and
(b) that notice will expire within 56 days.”
This effectively takes the current guidance and puts it into legislation.
There will potentially still be problems with this because the duty only arises if a valid section 21 notice has been served. This may not always be an easy decision for the local authority to make (it’s sometimes difficult for a court to decide)!
A new section 189A will be inserted into the Housing Act 1996 which will require the local authority to make an assessment and personalised plan for each applicant who is either homeless or threatened with homelessness (including where a section 21 has been served as defined above).
The assessment must contain certain details and the local authority must try to agree steps that both the applicant and local authority will take to prevent homelessness.
Once a person is threatened with homelessness, section 195 governs the duties of the local authority to the applicant. This section is being re-written by the Bill (when it becomes an Act) and similar to previously:
The authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation.
The local authority must have regard to the assessment made under section 189A in respect of that duty.
Under the changes, the local authority may cease that duty to secure accommodation by giving notice to the applicant where certain circumstances apply such as a refusal by the applicant to take an offer of suitable accommodation, the applicant has found somewhere else to live or the applicant has made themselves intentionally homeless. The authority are unable to cease their duty by notice in certain situations after a valid section 21 notice has been served (tying in with the earlier definition of being threatened with homelessness).
Currently, one of the arguments used by the local authority to insist on a court order and even sometimes bailiff was that whilst the tenant is in occupation, they have suitable accommodation available for occupation and as a result they didn’t meet the criteria of being homeless.
This again will hopefully be fixed by the Bill because suitable accommodation will be defined as where:
the applicant has—
(i) suitable accommodation available for occupation, and
(ii) a reasonable prospect of having suitable accommodation available for occupation for at least 6 months, or such longer period not exceeding 12 months as may be prescribed, …
The addition of being available for occupation for at least 6 months is a welcome change because this ties in with the section 21 notice. Assuming the landlord genuinely intends on acting on the section 21 notice, it is likely that any case would be fully concluded within 6 months and therefore, the local authority cannot say that they have suitable accommodation for at least 6 months. As a result, a tenant who has been served a section 21 notice and they are at a point when it will expire in 56 days or less will not have suitable accommodation available for occupation and the duty to secure accommodation arises.
Enforcement of the new position
In reality, will these new provisions change anything from the current position?
Well, they should! However, the simple fact is that most local authorities simply do not have any accommodation available. As part of their duties in securing accommodation, they can provide assistance for the applicant to secure accommodation in the private rented sector.
Unfortunately, if a local authority fail to follow these new provisions when they commence, the way to deal with it will be ultimately by the tenant seeking a Judicial Review. This is very costly and not always available on legal aid.
However, where a local authority fail to secure accommodation, a landlord would have good grounds in our view to make a formal complaint and claim costs incurred as a result of their failure (such as the court costs). If the complaint is not dealt with in the first instance by the local authority, it can be escalated to the Ombudsman1.
If a complaint is to be made, the landlord may be wise obtaining possession based upon the section 21 notice first because that will prove the notice is valid (especially if they local authority are claiming it’s invalid and refusing to secure accommodation for the tenant on that basis).
When the Bill becomes an Act and commences, local authorities in England will be under a duty to provide free of charge services providing information and advice on:
- preventing homelessness
- securing accommodation when homeless
- the rights of persons who are homeless or threatened with homelessness, and the duties of the authority
- any help that is available from the authority or anyone else, for persons in the authority’s district who are homeless or may become homeless (whether or not they are threatened with homelessness), and
- how to access that help.
The local authority as part of their advisory service may also assist in other ways including:
- assistance by way of a grant or loan
- permitting the person to use premises belonging to the authority
- making available furniture or other goods, whether by way of gift, loan or otherwise
- making available the services of staff employed by the authority.