Homelessness code of guidance for local authorities

Chapter 10: Local connection and referrals to another housing authority

Guidance on the provisions relating to an applicant’s local connection with an area and explains the procedures for referring an applicant to another housing authority.

10.1 This chapter provides guidance on the provisions relating to an applicant’s ‘local connection’ with an area and explains the conditions and procedures for referring an applicant to another housing authority. The chapter includes how local connection is assessed, particular arrangements that apply for certain groups such as care leavers and former asylum seekers, the process and conditions for referrals between authorities, cross-border referrals and dealing with disputes.

Local Authorities Agreement

10.2 Local authority bodies have together agreed guidelines for local authorities on procedures for referral between them, and for resolving disputes that arise when housing authorities are unable to agree whether conditions for a referral from one authority to another are met. Although these procedures have been adopted by local authority organisations in England, Scotland and Wales, and are now widely used, housing authorities are reminded that they should consider each case individually on its own particular facts.

Assessing local connection

10.3 When a housing authority makes inquiries to determine whether an applicant is eligible for assistance and owed a duty under Part 7, it may also make inquiries under section 184(2) to establish an applicant’s local connection.

  1. 10.4 Section 199(1) provides that a person has a local connection with the district of a housing authority if they have a connection with it because:

    1. (a) they are, or were in the past, normally resident there, and that residence was of their own choice; or,

    2. (b) they are employed there; or,

    3. (c) they have family associations living there; or,

    4. (d) of any special circumstances.

10.5 For the purposes of (a), above, ‘normal residence’ is to be understood as meaning ‘the place where at the relevant time the person in fact resides.’ Residence in temporary accommodation provided by a housing authority can constitute normal residence of choice and can contribute towards a local connection.

10.6 In the case of a person who is street homeless or insecurely accommodated (‘sofa surfing’) the housing authority will need to carry out a different type of inquiry to be satisfied as to their ‘normal residence’ than would be required for an applicant who has become homeless from more settled accommodation. If an applicant has no settled accommodation elsewhere, and from inquiries the authority is satisfied that they do in fact reside in the district, then there will be normal residence for the purposes of the 1996 Act.

10.7 The Local Authorities Agreement suggests that a working definition of normal residence sufficient to establish a local connection should be residence for at least 6 months in an area during the previous 12 months, or for 3 years during the previous 5 year period.

10.8 With regard to (b) the applicant should actually work in the district: it would not be sufficient that their employers’ head office was located there.

10.9 For the purposes of (c), where the applicant raises family associations, this may extend beyond partners, parents, adult children or siblings. They may include associations with other family members such as step-parents, grandparents, grandchildren, aunts or uncles provided there are sufficiently close links in the form of frequent contact, commitment or dependency. Family associations should be determined with regard to the fact-specific circumstances of the individual case. For example, the actual closeness of the family association may count for more than the degree of blood relation. A housing authority should not identify a local connection through family associations with an area other than the one where the applicant positively wants to live.

10.10 The Local Authorities Agreement recommends that in order to give rise to a local connection, the family members relied upon as family associations should have been resident in the district for a period of at least 5 years at the date of application from homelessness assistance. Housing authorities should remain cautious in applying this guideline to every case. For example, in cases of refugees or other recent arrivals to the UK, a housing authority should bear in mind that the relatives may not have had 5 years in which to build up a residence period in any district in the UK.

10.11 With regard to (d), special circumstances might include the need to be near special medical or support services which are available only in a particular district.

10.12 Decisions about the application of (a) to (d) must be based on the facts at the date of the decision (or review of the decision), not the date of the application.

10.13 The test regarding local connection, as set out in section 199(1) should be applied, and the additional provisions for care leavers (see paragraph 10.17) and asylum seekers (see paragraph 10.23) where relevant, in order to establish whether the applicant has the required local connection. The fact that an applicant may satisfy one of these grounds will not necessarily mean that they have been able to establish a local connection.

10.14 The overriding consideration should always be whether the applicant has a connection ‘in real terms’ with an area and the housing authority must consider the applicant’s individual circumstances, particularly any exceptional circumstances, before reaching a decision.

  1. 10.15 Housing authorities are not generally required to make any inquiries as to whether an applicant has a local connection with an area. However, by virtue of section 11 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, housing authorities will need to consider local connection in cases where the applicant is a former asylum seeker:

    1. (a) who was provided with accommodation in Scotland under section 95 of the Immigration and Asylum Act 1999; and,

    2. (b) whose accommodation was not provided in an accommodation centre by virtue of section 22 of the Nationality, Immigration and Asylum Act 2002.

10.16 In such cases, by virtue of section 11(2)(d) and (3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, local connection to a district in England, Wales or Scotland will be relevant to what duty is owed under section 193. (See paragraphs 10.23–10.29).

Care leavers

10.17 Section 199(8) to (11) makes specific provisions relating to local connection for care leavers.

10.18 A young person owed leaving care duties under section 23C of the Children Act 1989 will have a local connection to the area of the children services authority that owes them the duties. If the children services authority is a county council and not a housing authority, the young person will have a local connection with every housing authority district falling within the area of the children services authority.

10.19 Where a care leaver is aged under 21 and normally lives in a different area to that of a local authority that owes them leaving care duties, and has done for at least 2 years including some time before they turned 16, the young person will also have a local connection in that area.

10.20 For further guidance on assessments and provision of services for care leavers see Chapter 22.

Ex-service personnel

10.21 Section 315 of the Housing and Regeneration Act 2008 amended the local connection test to enable armed forces personnel to establish a local connection in an area through residing there by choice, or being employed there, in the same way as a civilian. For further guidance on former members of the armed forces see Chapter 24.

Ex-prisoners and detainees under the Mental Health Act 1983

10.22 Detention in prison (whether convicted or not) does not establish residency of choice in the district the prison is in, and so will not create a local connection with that district. The same is true of those detained under the Mental Health Act 1983. For further guidance on people with an offending history see Chapter 23.

Former asylum seekers

10.23 Section 199(6) provides that a person has a local connection with the district of a housing authority if they were (at any time) provided with accommodation there under section 95 of the Immigration and Asylum Act 1999 (section 95 accommodation).

  1. 10.24 Under section 199(7), however, a person does not have a local connection by virtue of section 199(6):

    1. (a) if they have been subsequently provided with section 95 accommodation in a different area. Where a former asylum seeker has been provided with section 95 accommodation in more than one area, the local connection is with the area where accommodation was last provided; or,

    2. (b) if they have been provided with section 95 accommodation in an accommodation centre in the district by virtue of section 22 of the Nationality, Immigration and Asylum Act 2002.

10.25 A local connection with a district by virtue of section 199(6) does not override a local connection by virtue of section 199(1). Thus, a former asylum seeker who has a local connection with a district because they were provided with accommodation there under section 95 may also have a local connection elsewhere for some other reason, for example, because of employment or family associations.

Former asylum seekers provided with section 95 accommodation in Scotland

10.26 Under Scottish legislation, a person does not establish a local connection with a district in Scotland if they are resident there in section 95 accommodation. Consequently, if such a person made a homelessness application to a housing authority in England, and did not have a local connection with the district of that authority, the fact that they had been provided with section 95 accommodation in Scotland would not establish conditions for referral to the relevant local authority in Scotland.

  1. 10.27 Sections 11(2) and (3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides that where a housing authority in England or Wales is satisfied that an applicant is eligible for assistance, unintentionally homeless and in priority need and:

    1. (a) the applicant has been provided with section 95 accommodation in Scotland at any time;

    2. (b) the section 95 accommodation was not provided in an accommodation centre by virtue of section 22 of the Nationality, Immigration and Asylum Act 2002;

    3. (c) the applicant does not have a local connection anywhere in England and Wales (within the meaning of section 199 of the 1996 Act); and,

    4. (d) the applicant does not have a local connection anywhere in Scotland (within the meaning of section 27 of the Housing (Scotland) Act 1987); then the duty to the applicant under section 193 (the main housing duty) shall not apply.

  1. 10.28 However, the authority:

    1. (a) may secure that accommodation is available for occupation by the applicant for a period giving them a reasonable opportunity of securing accommodation for their occupation; and,

    2. (b) may provide the applicant (or secure that they are provided with) advice and assistance in any attempts they may make to secure accommodation for their occupation.

10.29 When dealing with an applicant in these circumstances, housing authorities will need to take into account the wishes of the applicant but should consider providing such advice and assistance as would enable the applicant to make an application for housing to the Scottish authority in the district where the section 95 accommodation was last provided, or to another Scottish authority of the applicant’s choice. If they were unintentionally homeless and in priority need, it would be open to them to apply to any Scottish housing authority and they would be owed a main housing duty.

Referrals to another housing authority

10.30 If a housing authority’s inquires under section 184(2) determine that an applicant has a local connection with the district of another housing authority in England, Wales or Scotland, section 198 allows a housing authority (‘the notifying authority’) to refer a case to another housing authority (‘the notified authority’) at the point of the relief duty or main housing duty. Before making a referral the notifying authority must decide if the conditions for referral are met (see 10.32). Referrals cannot be made to Welsh or Scottish authorities where the section 189B relief duty is owed.

10.31 The Secretary of State recommends that the notified authority should respond to a referral within 10 working days.

10.32 Referrals are discretionary only: housing authorities are not required to refer applicants to other authorities. Housing authorities may have a policy about how they exercise their discretion to refer a case. This must not, however, extend to deciding in advance that in all cases where there is a local connection to another district the case should be referred.

10.33 There may be instances where an applicant has a local connection to the district where they applied but the housing authority considers that there is a stronger local connection elsewhere. In such cases, a housing authority can not decide to transfer responsibility to another housing authority; however, they will still be able to seek assistance from the other housing authority in securing accommodation, under section 213. For further guidance on securing accommodation see Chapter 16.

10.34 Where a person has a local connection with the districts of more than one other housing authority, the notifying housing authority should take account of the applicant’s preference in deciding which housing authority to notify.

10.35 If neither an applicant, nor any person who might reasonably be expected to live with them, has a local connection with any district in Great Britain, the duty to secure accommodation or help to secure accommodation will rest with the housing authority that has received the application.

Referrals to another housing authority in England at the relief stage

10.36 Referrals cannot be made to Welsh or Scottish authorities at the relief stage – the English authority the applicant has applied to will be subject to the relief duty, if one is owed.

10.37 Section 198(A1) enables a housing authority to refer applicants who do not have a local connection to their district to another housing authority in England where they do have such a connection. Before making a referral, the notifying authority must be satisfied that the applicant is homeless and eligible for assistance and therefore owed the (section 189B) relief duty and that the conditions for referral are met (see paragraph 10.51).

10.38 Section 189B sets out the initial duties owed to all eligible people who are homeless, that is the relief duty, unless the authority refers the application to another housing authority. Section 199A(b) states that the housing authority is not subject to the relief duty at the point that they have notified the applicant that they intend to refer or have referred their case to another housing authority. It follows that a housing authority will owe the relief duty until such time as the applicant has been issued with this notification. If the authority believes that the applicant has no local connection and may have a connection elsewhere, they should take reasonable steps to try and relieve the applicant’s homelessness until they issue the first notification as outlined in 10.39 below.

  1. 10.39 When the notifying authority intends to refer or have referred a case to another housing authority, there are 2 points at which applicants must be notified:

    1. (a) when the notifying authority has decided that the conditions for referral are met and intend to notify, or have notified, another local authority of that opinion;

    2. (b) when, following referral, it has been decided that the conditions for referral are or are not met. The notification must provide notice of the decision and the reasons for it.

10.40 From the date that the first notice is issued the authority will not be subject to the relief duty and will cease to be subject to the section 188 (interim accommodation) duty. However if they have reason to believe the applicant may be in priority need they will have a section 199A(2) duty to provide interim accommodation to the applicant whilst a decision is made on whether the conditions for referral are met.

10.41 From the date the second notice (b) is issued to the applicant, if it is decided that the conditions for referral are met, the applicant is to be treated as having made an application to the notified authority. At this point, the notifying authority’s duties under Part 7 of the 1996 Act come to an end.

10.42 If the notifying authority has made a decision as to whether the applicant is eligible for assistance, is homeless or became homeless intentionally, the notified authority may only come to a different decision if they are satisfied that the applicants circumstances have changed; or further information has come to light since the notifying authority made their decision, and that the changes or information warrant a different decision.

10.43 The notifying authority must give the notified authority a copy of the applicant’s section 189A(3) assessment and any revisions made to it, and should also (with the applicant’s consent) provide any personalised housing plan that has been agreed with the applicant which remains relevant. The notifying authority should provide this documentation as quickly as possible.

10.44 If it is decided that the conditions for referral are not met the applicant’s case will remain with the notifying authority and they will be subject to the relief duty under section 189(B)(2). The 56 day period of the relief duty will start from the date of the second notification.

Referrals to another housing authority in England, Wales or Scotland at the end of the relief duty

10.45 Section 198(1) enables a housing authority to refer an applicant who is owed the main housing duty but does not have a local connection to their district, to another housing authority in England, Wales or Scotland if it considers that the conditions for referral are met. Before making a referral, it is the responsibility of the notifying authority to determine that the applicant is unintentionally homeless, eligible for assistance and has a priority need; and is owed the main housing duty.

10.46 The notifying authority cannot issue a notice of referral under section 198(1) until their duties to the applicant under section 189B(2), the relief duty, have come to an end.

10.47 As set out in paragraph 10.38 when the notifying authority intends to refer a case to another housing authority, there are 2 notification points. At the point that the housing authority issues the first notice which notifies the applicant that they have or will be referring their case to another housing authority the notifying authority will cease to be subject the section 188 duty to provide interim accommodation from the date of the notice and will not be subject to any duty under section 193. However, they will be subject to a section 200(1) duty to provide interim accommodation until a decision is reached on whether the conditions for referral are met.

10.48 From the date the second notice (b) is issued to the applicant, (which sets out the decision on whether the conditions for referral have been met), if it is decided that the conditions for referral are met, the notifying authority’s duty to provide accommodation under section 200(1) comes to an end and the notified authority will be subject to the main housing duty.

10.49 If it is decided that the conditions for referral are not met the applicant’s case will remain with the notifying authority and they will be subject to the main housing duty under section 193.

10.50 A notified authority which disagrees on a finding as to the application of the main housing duty (section 193) to the applicant must challenge the notifying authority’s finding (for example as to intentionality) by way of judicial review.

Conditions for referral

  1. 10.51 Sections 198(2)(2ZA) and (4) describe the conditions which must be satisfied before a referral may be made. A notifying authority may only refer an applicant to whom the relief duty or main housing duty applies to another housing authority if all of the following are met:

    1. (a) neither the applicant nor any person who might reasonably be expected to live with them has a local connection with its district; and,

    2. (b) the applicant or a person who might reasonably be expected to live with them has a local connection with the district of the authority to be notified; and,

    3. (c) none of them will be at risk of domestic or other violence, or threat of domestic or other violence which is likely to be carried out, in the district of the authority to be notified.

  1. Or:

    1. (a) the application is made within 2 years of the applicants acceptance of a private rented sector offer from the other authority under section 193(7AA); and,

    2. (b) neither the applicant or any person who might reasonably be expected to live with them will be at risk of domestic or other violence, or threat of domestic or other violence which is likely to be carried out, in the district of the authority to be notified.

For further guidance on referrals to another housing authority in this circumstance see Chapter 18 on re-applications.

  1. Or:

    1. (a) the applicant was placed in the authority’s district by another authority as a result of a previous homelessness application to the other authority; and,

    2. (b) the fresh application for assistance has been made within a prescribed period of the first application.

The Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006 set out that the ‘prescribed period’ is the total of 5 years plus the period between the date of the previous application and the date the applicant was first placed in accommodation in the district of the authority to whom the application is now made.

Risk of violence

10.52 A housing authority cannot refer an applicant to another housing authority if they or anyone who might reasonably be expected to reside with them would be at risk of violence. The housing authority is under a positive duty to enquire whether the applicant would be at such a risk and, if they would, should not assume that the applicant will take steps to deal with the threat.

10.53 Section 198(3) defines violence as violence from another person or threats of violence from another person which are likely to be carried out. This is the same definition as appears in section 177 in relation to whether it is reasonable to continue to occupy accommodation and the circumstances to be considered as to whether a person runs a risk of violence are the same.

  1. 10.54 Housing authorities should be alert to the deliberate distinction which is made in section 198(3) between actual violence and threatened violence. A high standard of proof of actual violence in the past should not be imposed. The threshold is that there must be:

    1. (a) no risk of domestic violence (actual or threatened) in the other district; and,

    2. (b) no risk of other violence (actual or threatened) in the other district.

For further guidance on cases involving domestic abuse see Chapter 21.

Cross-border referrals

10.55 Paragraph 10.30 sets out the circumstances under which a local housing authority can refer a case to another housing authority in Wales or Scotland, and the conditions for referral apply to all referrals. Following a referral, the Local Authorities Agreement sets out that the legislation relevant to the location of the notified authority should be applied when reaching an agreement on whether the conditions for referral are met. There are no arrangements in place to enable referrals to be made between England and Northern Ireland or the Republic of Ireland.

Applicants’ rights to request a review

10.56 Applicants have the right to request a review of various decisions relating to local connection and referrals. Under section 202(1)(c), an applicant is able to request a review of a housing authority’s decision to notify another housing authority that the conditions for referral are met where the main housing duty is owed (notice a – see paragraph 10.39). Applicants cannot request a review of the equivalent section 198(A1) decision at the relief stage. Applicants have a right to request a review of the decision on whether the conditions for referral are met at both the stage of the relief duty or main housing duty under section 202(1)(e) (notice b – see paragraph 10.39). For further guidance on reviews see Chapter 19.

10.57 The notifying authority’s interim duty to accommodate under section 188, 199A(2) or 200(1) ends regardless of whether the applicant requests a review of a decision that the conditions for referral are met. However, where the applicant does request a review the notifying authority has powers under section 199A(6) and section 200(5) to secure that accommodation is available pending the review decision. For further guidance on powers to secure accommodation see Chapter 15.

10.58 There is no right to request a review of a decision not to refer a case, although a failure by a housing authority to consider whether it has the discretion to refer an applicant may be amenable to challenge though judicial review. The same is true of an unreasonable use of the discretion. For further guidance on reviews see Chapter 19.

Disputes

10.59 The question of whether the conditions for referral are met in a particular case at the point of the relief duty or the main housing duty should be decided by agreement between the housing authorities concerned (section 198(5)).

10.60 If they cannot agree, the decision should be made in accordance with such arrangements as may be directed by order of the Secretary of State (section 198(5)). The Homelessness (Decisions on Referrals) Order 1998 sets out that where a decision cannot be reached by agreement between the notifying authority and the notified authority, the question shall be decided by a person appointed by those authorities.

10.61 The Order directs that the arrangements to be followed in such a dispute are the arrangements agreed between the local authority associations (i.e. the Local Government Association (LGA), the Convention of Scottish Local Authorities, the Welsh Local Government Association and London Councils). The LGA has issued guidelines for housing authorities on invoking the disputes procedure.

10.62 If the authorities are unable to appoint a person to make this decision within 21 days from the date on which the notified authorities receives a notification, sections (2) to (4) of the Schedule to the Order set out the arrangements for appointing a person. These sections only apply where a housing authority in England, Wales or Scotland seek to refer a homelessness case under section 198(1) to another housing authority in England or Wales, at the point of the main housing duty and they are unable to agree to appoint a person to decide whether the conditions for referral are met. They do not apply where a housing authority in England seek to refer a homelessness case to another authority in England under section 198(A1) at the point of the relief duty.

  1. 10.63 The Secretary of State has issued the below guidance to set out the arrangements housing authorities should take in the event of them being unable to agree on a person to be appointed to make the decision on whether the conditions for referral of a case are met under section 198(A1) at the point of the relief duty. Housing authorities are strongly recommended to follow this guidance:

    1. (a) if the notified and notifying authority are unable to appoint a person to make a decision on their behalf on the referral of a case within 21 days from the day on which the notified authority received a notification under section 198(A1), They should jointly request the Chair of the LGA or their nominee (‘the proper officer’) to appoint a person to make this decision;

    2. (b) the Secretary of State recommends that the authorities request that the LGA appoint a person from the panel of persons they have established to decide the question of whether the conditions for a referral of a case are satisfied. The LGA are required to establish this panel under the Homelessness (Decisions on Referrals) Order 1998 to appoint persons to make decisions on referrals of cases under section 198(1). Housing authorities are recommended to utilise this existing procedure;

    3. (c) if within a period of 6 weeks from the day on which the notified authority received a notification under section 198(A1), a person still has not been appointed, the notifying authority is recommended to request the proper officer to appoint a person from the panel specified above.

10.64 Broadly speaking, both section (2) to (4) of the Schedule to the order and the guidance above provide that in the event of 2 housing authorities being unable to agree on a person to be appointed to make the decision for them they should agree to make a joint request to the LGA to appoint someone. If unable to agree on that the notifying housing authority must make such a request of the LGA. In all cases relating to notifications under section 198(1) the appointed person must be drawn from a panel established by the LGA for this purpose. It is recommended that for cases relating to notification under section 198(A1) the housing authorities request that the appointed person is drawn from this panel.

10.65 Section 5, 6 and 7 of the Homelessness (Decisions on Referrals) Order 1998 sets out the procedure to be followed by the appointed person when making their decision and the arrangements for meeting associated costs. These provisions apply regardless of the means by which a person has been appointed. The appointed person must invite written representations from the notifying and notified authority and shall notify their decision and their reasons for it, in writing to the notifying authority and the notified authority. The notifying and notified authority must pay their own costs incurred in connection with these arrangements.

10.66 The Homelessness (Decisions on Referrals) (Scotland) Order 1998 applies under the Scottish homelessness legislation. The arrangements in the latter apply in cases where a housing authority in England, Wales or Scotland refers a homelessness case to a housing authority in Scotland, and they are unable to agree whether the conditions for referral are met.

10.67 Where an English or Welsh housing authority seek to refer a case to a Scottish housing authority, a request to the local authority association to appoint an arbitrator should be made to the Convention of Scottish Local Authorities.