Homelessness code of guidance for local authorities

Chapter 1: Introduction

The purpose of the code and the relevant equality duties that housing authorities need to consider in carrying out their duties.

Purpose of the code

1.1 The Secretary of State for the Ministry of Housing, Communities and Local Government is issuing this code of guidance to local housing authorities (referred to as housing authorities) in England under section 182 of the Housing Act 1996 (‘the 1996 Act’). In accordance with section 182(1) of the 1996 Act, housing authorities are required to have regard to this statutory guidance in exercising their functions relating to homelessness and prevention of homelessness, including their functions under Part 7 of the 1996 Act (as amended) and under the Homelessness Act 2002 (‘the 2002 Act’). This code replaces and consolidates the previous version published in 2006 and the supplementary guidance issued in August 2009, November 2012 and November 2014.

1.2 Under section 182(1), social services authorities in England are also required to have regard to guidance given by the Secretary of State (such as this code) when exercising their functions relating to homelessness and the prevention of homelessness. Further guidance applicable to social services authorities is also issued jointly with the Secretary of State for Health and Social Care and the Secretary of State for Education.

1.3 The code provides guidance on how housing authorities should exercise their functions relating to homelessness and threatened homelessness and apply the statutory duties in practice. This is not a substitute for legislation and therefore any policy context on the law documented in the code should be considered only as the department’s understanding at the time of issue. While it is intended that the code will be updated periodically, housing authorities are expected to keep up to date with developments in legislation and case law.

1.4 The Secretary of State has the power to issue statutory codes of practice, providing further guidance on how housing authorities should deliver and monitor their homelessness and homelessness prevention functions. Any codes of practice will focus on specific functions of housing authorities in order to drive up standards.

Who is the code for?

1.5 The code is issued specifically for local authority members and staff. It is also of direct relevance to private registered providers of social housing. Private registered providers have a duty under the 1996 Act to co-operate with housing authorities in exercising their homelessness functions. Private registered providers are subject to the Regulator of Social Housing’s1 Regulatory Standards, in particular the expectation that they will co-operate with local authority strategic housing functions, as set out in the Tenancy and Home and Community Standards.

1.6 Many of the activities discussed in the code require joint planning and operational co-operation between housing authorities and social services authorities, health authorities, criminal justice agencies, voluntary sector organisations and the diverse range of bodies working in the private rented sectors – so the code is also relevant to these agencies.

Homelessness legislation

1.7 Part 7 of the 1996 Act sets out the powers and duties of housing authorities where people apply to them for accommodation or assistance in obtaining accommodation in cases of homelessness or threatened homelessness.

1.8 The Homelessness Act 2002 (‘the 2002 Act’) places a requirement on housing authorities in England to formulate and publish a homelessness strategy based on the results of a review of homelessness in their district. The 2002 Act also amended a number of provisions in Part 7 of the 1996 Act to strengthen the safety net for vulnerable people.

1.9 The Homelessness Reduction Act 2017 (‘the 2017 Act’) places a set of duties on housing authorities to intervene at earlier stages to prevent homelessness in their areas and to take reasonable steps to prevent and relieve homelessness for all eligible applicants, not just those that have priority need under the Act.

Equality

1.10 Housing authorities need to ensure that policies and decisions relating to homelessness and threatened homelessness do not amount to unlawful conduct under the Equality Act 2010 and also comply with the public sector equality duty.

  1. 1.11 The Equality Act 2010 provides protection from unlawful discrimination in the provision of goods, services and public functions, housing, transport and education in relation to the protected characteristics set out in the legislation, which are:

    1. (a) age;

    2. (b) disability;

    3. (c) gender reassignment;

    4. (d) pregnancy and maternity (which includes breastfeeding);

    5. (e) marriage and civil partnership;

    6. (f) race;

    7. (g) religion or belief;

    8. (h) sex; and,

    9. (i) sexual orientation.

1.12 The public sector equality duty in section 149(1) of the Equality Act 2010 requires public authorities, including housing authorities, to integrate equality considerations into the decision-making process from the outset, including in the development, implementation and review of their policies and services. This includes policies and services relating to homelessness and threatened homelessness. Other agencies and bodies who carry out public functions on behalf of local authorities also have a duty to comply with the public sector equality duty in the delivery of those public functions.

  1. 1.13 Specifically, under section 149(1) Equality Act 2010, public authorities in exercising their functions (or a person exercising public functions that is not a public authority (section 149(2)) must have due regard to the need to:

    1. (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;

    2. (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and,

    3. (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

1.14 The 3 limbs of the duty, listed above, apply to all protected characteristics apart from marriage and civil partnership, which is only relevant to the first limb (eliminating discrimination and so on).

  1. 1.15 In order to comply with the public sector equality duty housing authorities need to do the following:

    1. (a) plan how to factor in equality considerations;

    2. (b) collect sufficient information to develop a reasonable understanding of what the equality impacts might be;

    3. (c) identify any equality impact the policy or service might have;

    4. (d) justify any decision that it takes;

    5. (e) re-evaluation to consider whether any alternative approaches might be possible;

    6. (f) record how many equality impacts are taken;

    7. (g) inform decision-makers; and,

    8. (h) continue to review equality impacts as the policy or service is implemented or developed.

1.16 The duty to have due regard to these equality issues will also apply when decisions are taken in respect of individual applications for homelessness assistance. Applicants should receive fully considered decisions which, in accordance with the public sector equality duty, show due regard to any equality impacts of the decision.

1.17 Housing authorities are also subject to the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 if they are covered under Schedule 2 to those regulations, which would include most housing authorities. These regulations require public authorities to publish information to demonstrate their compliance with the public sector equality duty and set and publish equality objectives.

1.18 Further information about the Equality Act 2010 and the public sector equality duty is available from the Equality and Human Rights Commission and the Government Equalities Office.

Human Rights Act 1998

1.19 In addition, when someone is receiving services from (or is on the receiving end of public functions carried out by) a public sector organisation or others who deliver services or carry out public functions on their behalf, they will also have rights under the Human Rights Act 1998.

1.20 Section 3 of the Human Rights Act 1998 specifies that when interpreting the law, so far as it is possible to do so, primary and secondary legislation must be read and given effect in a way which is compatible with the European Convention on Human Rights (‘the Convention’). Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Therefore, housing authorities and other agencies that carry out public functions on behalf of housing authorities must do so in a way that is compatible with Convention rights.

1.21 Housing authorities should pay particular attention to the promotion and protection of rights of vulnerable and disadvantaged groups such as people with disabilities, ethnic minorities, victims of sexual discrimination, children and elderly people.

  1. 1.22 Schedule 1 to the Human Rights Act 1998 gives further effect to a number of Convention rights and freedoms in domestic UK law. There are 3 Articles which are particularly important for the purposes of this code, as follows:

    1. (a) Article 3 – is the prohibition of torture whereby every person has the absolute right not to be tortured or subjected to treatment or punishment that is inhuman or degrading;

    2. (b) Article 4 – is the prohibition of slavery and forced labour whereby every person has the right not to be held in slavery or required to perform forced labour; and,

    3. (c) Article 8 – is the right to respect for private and family life whereby every person has the right to respect for their private and family life, their home and their correspondence. This right can be interfered with only in specified circumstances: where it is necessary in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

1.23 Under Article 3, housing authorities have an obligation to prevent a person being subjected to treatment or punishment that is inhuman or degrading, to investigate any allegations of such treatment, and to protect vulnerable individuals who they know or should know are at risk of such treatment.

1.24 Under Article 4, housing authorities should try to ensure that their policies or decisions take measures to protect victims of modern slavery or trafficking and to protect individuals who they are aware are at risk of such treatment.

1.25 Under Article 8, housing authorities should try to ensure that their policies or decisions do not interfere with a person’s right to respect for private and family life, their home and their correspondence.

1.26 If a housing authority does decide that it will be difficult to avoid interfering with someone’s Article 8 rights, it will need to make sure that the policy or action is necessary, pursues one of the recognised legitimate aims and is proportionate to that aim. A housing authority may be asked to produce reasons for its decisions.

1.27 Housing authorities may also need to consider whether there are situations putting them under obligation to take active steps to promote and protect individuals’ Article 8 rights from systematic interference by third parties, for example, private businesses.

1.28 Housing authorities are expected to consider the human rights implications of their actions in the exercise of their powers, or risk having their decisions overturned as a result and the planning and delivery of their services affected.

1.29 Further information about the Human Rights Act 1998 is available from the Equality and Human Rights Commission.

Safeguarding

1.30 Housing authorities have a duty to safeguard and promote the welfare of children and to co-operate to promote the well-being of all children, including 16-17 year olds, in the area as set out in the Children Act 2004.

1.31 Housing authorities also have a duty to co-operate with children’s services in relation to children in need when requested to do so, as long as this is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

1.32 Children’s needs are paramount, and the welfare, needs and wishes of each child should be put first, so that every child receives the support they need.

1.33 All professionals who come into contact with children and their families must be alert to their needs and any risks of harm that individual abusers or potential abusers may pose, and respond proactively to them when dealing with their housing situation.

1.34 All professionals must share appropriate information in a timely way and can discuss any concerns about an individual child with colleagues, and with children’s services. This will include identifying where current or changing housing arrangements might affect risk to children.

1.35 All professionals contribute to whatever actions are needed to safeguard and promote a child’s welfare and take part in regularly reviewing the outcomes for the child against specific plans and outcomes.

1.36 The duties placed on housing authorities are set out in the government’s inter-agency statutory guidance: Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children. The specific duties towards 16 and 17 year olds who are at risk of homelessness or who are homeless, and the legal duties children’s services authorities and housing authorities have towards them are set out in the government’s statutory guidance: Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation.

Footnotes

  1. The regulation of social housing is the responsibility of the Regulation Committee, a statutory committee of the Homes and Communities Agency (HCA). The organisation refers to itself as the Regulator of Social Housing in undertaking the functions of the Regulation Committee. References in any enactment or instrument to the Regulator of Social Housing are references to the HCA acting through the Regulation Committee. Homes England is the trading name of the HCA’s non-regulation functions.