Out in the cold

The homelessness scheme is part of the overall system of social welfare. As Lord Hoffman said in O'Rourke v Camden London Borough Council [1998] 1 AC 188: 'Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services.'

The scheme was set up by the appropriately named Housing (Homeless Persons) Act 1977. It has been subsequently refined by the Housing Act 1985, the Housing and Planning Act 1986, the Housing Act 1996, and the Homelessness Act 2002. The current scheme is contained in part 7 of the Housing Act 1996, as amended by the Homelessness Act 2002.

Put simply, the aim of the scheme is that prescribed categories of people said to be in priority need, who are homeless through no fault of their own and who are not disqualified from assistance by virtue of their immigration status, are secured accommodation by local housing authorities, with whom they have a local connection.

Although some of the legal questions thrown up by the Act have been complex, the actual working of the scheme is simple.

1. There is no statutorily prescribed application for assistance. Rather, if a local housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, it is under a mandatory duty to make enquiries to determine what duty, if any, it might owe to the applicant under part 7 (section 184(1)). The duty to make enquiries cannot be deferred, not even for one day.

2. There may be an immediate, non-deferrable mandatory duty to provide interim accommodation. This arises where the local housing authority has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need (section 188(1)). This interim accommodation duty persists until the housing authority has reached a decision upon what duty, if any, is owed to the applicant and notified him of the same.

3. The threshold posited by the 'reason to believe' test is low. This was made clear more than 15 years ago in Mohamed v Manek & Royal Borough of Kensington & Chelsea [1995] 27 HLR 439.

And yet, despite the apparent simplicity of the way in which the scheme is meant to operate, in recent years there has been a wealth of litigation involving applicants who have complained that they have been denied their rights under the homelessness scheme by either being prevented or delayed in making an application, or by not being immediately provided with interim accommodation while the housing authority investigates their right to assistance.

Holding the fort

'Gatekeeping' is not a term found in part 7 and yet all housing practitioners know what it means. It is commonly used to describe situations where a housing authority seeks to evade or delay its duties.

The reasons for its existence are not difficult to comprehend. Increasingly, cash-strapped housing authorities with limited or no housing stocks of their own, government targets which seek to reduce the number of homelessness acceptances (those to whom a full housing duty is accepted) and onoccasion poor training of frontline staff all combine to produce a situation where I believe there is an inbuilt institutional pressure to gatekeep. The problem may then be exacerbated by a lack of availability of urgent legal advice.

Authorities sometimes seek to argue that they are not gatekeeping but engaging in homelessness prevention measures and need only turn to part 7 when these have failed.

In Aweys (see below) Collins J categorically rejected this approach as being unlawful, holding that such measures could not 'lawfully be used to defer consideration of a homeless application. All steps taken to avoid homelessness are of course laudable.' Adding: 'But any such steps must be taken in parallel to the carrying out of the duty under part VII.'

Gatekeeping at court

It is difficult to expose gatekeeping practices in court. The remedy is judicial review. Interim accommodation is obtained via interim relief, often from the duty judge, and the case becomes academic at the pre-permission stage. The already overworked Administrative Court is not keen to hear academic cases and the whole thing ends up simply being an argument over costs. It is to the housing authority's benefit to compromise those cases that are brought and thus prevent judicial scrutiny, in the knowledge that many aggrieved persons will not be able to access legal advice or will not want to be involved in court proceedings.

Gatekeeping is not limited to any particular authority. However, in the past three years, the Administrative Court has, in three separate judicial reviews involving Birmingham City Council, considered allegations that there was deliberate gatekeeping going on. These cases usefully demonstrate the issues that can arise on an application for assistance under part 7 Housing Act 1996.

To illustrate that there was a general problem, in each instance a number of claims were issued together and evidence also adduced of other cases that had been compromised.

In R (Aweys & Others) v Birmingham City Council [2007] EWHC 52 (Admin), it was alleged that the council was gatekeeping by: (a) insisting that any applicant went through the 'home options' scheme before being considered for assistance under part 7 of the Housing Act 1996; and (b) insisting that existing tenants sought rehousing by means of transfer.

Both of these devices were held to be unlawful. Collins J held that the duty to make an enquiry and provide interim accommodation pending notification of a decision could not be deferred. He held: 'In the vast majority of cases, the making of the application will mean that it is difficult if not impossible for the council not to believe that the applicant may be homeless or threatened with homelessness.'

However, any hope that the clear and unequivocal judgment of Collins J, explaining how the scheme should operate, would lead to an end of problems faced by homeless applicants when they approached the council were short-lived.

In R (Kelly & Others) v Birmingham City Council [2009] EWHC 3240 (Admin), it was alleged that the council was gatekeeping by considering whether an applicant for assistance needed 'emergency' accommodation as opposed to considering whether they crossed the low threshold posited in section 188(1) of the Act for 'interim' accommodation.

The 'emergency' accommodation test meant the council was advising persons to return to accommodation which they alleged would not be reasonable for their continued occupation, without having reached a decision on the application itself.

The council accepted that mistakes had been made in each case but said that these were down to individual officer error and not evidence of an unlawful systemic approach. The 'they were not following orders' defence.

Hickinbottom J unequivocally rejected this. The council's officers had been following orders. There was a clear difference between the test for emergency accommodation and the test for interim accommodation. There had been no engagement with section 188 at all. There was, he said, 'strong evidence of a system failure'. The council promised to revise its procedures in dealing with homeless applicants.

However, amazingly, just months after the fairly damning Kelly judgment, the council's approach to its duties under part 7 of the Housing Act 1996 was the subject of court proceedings once more.

In R (Khazai and others) v Birmingham City Council [2010] EWHC 2576 (Admin), in February 2010, only two months after the Kelly judgment, John Hardy, the council's interim head of housing, sent an astonishing internal instruction to Neighbourhood Office Service Delivery Managers and Neighbourhood Office Service Delivery Officers (see box).

This email, unknown to the council, came to the attention of the claimants' solicitors.

In the proceedings it was alleged that the council's interim head of housing was guilty of misfeasance in public office by asking that homeless applications not be completed for any single homeless person. It was additionally alleged that the council had a policy of seeking to make a decision on the application for assistance on the same day as the application, so that it did not have to provide interim accommodation.

It was asserted that in the circumstances, following shortly after the Kelly judgment, Mr Hardy was guilty of misfeasance in public office as: (a) the instruction was in performance of his duty as head of housing needs;

(b) the intention behind the instruction was to avoid or defer the council's duties under part 7; and (c) Mr Hardy was recklessly indifferent as to the illegality and consequences of his act.

The council did not seek to defend the Hardy email but argued that it had been retracted very soon after it had been issued; it had not been issued in bad faith; and that the claims were now academic. It also argued there was no same day policy.

Foskett J found:

(1) The council's evidence about what had happened after the email was sent was 'unsatisfactory'; that there had been no effective retraction at the time alleged; and the first time there was an attempt at a written retraction was after proceedings were issued, and a much more unequivocal retraction was required only a few weeks before the final hearing. However, he found that the email was the product of 'ill-considered drafting' rather than an attempt to prevent homeless applications being taken and that it was not meant to say what it actually did say.

(2) A blanket 'same day' policy to seek to make decisions on applications would be unlawful and only in the most straightforward of cases could a decision be made on the same day. There was no such policy but there did appear to be 'an internal ethos of endeavouring to jump as many hurdles as quickly as possible in dealing with a 'homeless on the day' applicant' which could and probably had caused a wrong decision to be made.

(3) If not already done, a thorough review of procedures was necessary with the benefit of high-level legal advice.

Declarations that the council had acted unlawfully were made in all three series of cases. It remains to be seen whether three times works as a charm for the council.

The way ahead

The law, at least at the initial approach for assistance stage, is simple. Yet some applicants for assistance under part 7 continue to be dealt with unlawfully. There is no good reason for this.

It is imperative that applicants for assistance are made aware of their rights and that they have adequate means of enforcing them, so that it becomes unprofitable, politically and economically, for local housing authorities to fail to adhere to this fundamental scheme of social welfare.

However, in these increasingly straitened times, it is unlikely that the issue is going to go away soon.