Homelessness code of guidance for local authorities

Chapter 15: Accommodation duties and powers

Guidance on housing authority duties and powers to secure accommodation for applicants; how they arise and are brought to an end, including under the main housing duty.

15.1 This chapter provides guidance on the housing authority’s duties to secure accommodation for applicants, how they arise and are brought to an end; and the powers within the 1996 Act to secure accommodation for homeless households.

  1. 15.2 The chapter includes:

    1. (a) duties to provide interim accommodation;

    2. (b) powers to provide accommodation pending review or appeal;

    3. (c) duties to prevent and relieve homelessness, including a power to provide accommodation;

    4. (d) the section 193C(4) duty to secure accommodation for applicants who are homeless, eligible for assistance, have priority need and are not intentionally homeless but have deliberately and unreasonably refused to cooperate;

    5. (e) the section 193(2) duty to secure accommodation for applicants who are homeless, eligible for assistance, have priority need and are not intentionally homeless (the main housing duty).

Duties to provide interim accommodation

15.3 The 1996 Act provides 4 circumstances in which a housing authority must secure accommodation on an interim basis until a decision or other event occurs. These are set out below.

Section 188 interim duty to accommodate

  1. 15.4 Section 188(1) requires housing authorities to secure that accommodation is available for an applicant (and their household) if they have reason to believe that the applicant may:

    1. (a) be homeless;

    2. (b) be eligible for assistance; and,

    3. (c) have a priority need.

15.5 The threshold for triggering the section 188(1) duty is low as the housing authority only has to have a reason to believe (rather than being satisfied) that the applicant may be homeless, eligible for assistance and have a priority need.

15.6 The section 188(1) interim accommodation duty applies even where the housing authority considers the applicant may not have a local connection with their district and may have one with the district of another housing authority giving rise to the possibility of referral (section 188(2)). For further guidance on local connection see Chapter 10.

Ending the section 188 interim duty

15.7 The section 188(1) interim duty comes to an end when applicants are notified of certain decisions in relation to their application.

  1. 15.8 Following inquiries, where the housing authority concludes that an applicant does not have a priority need, the section 188(1) duty ends when either:

    1. (a) the housing authority notifies the applicant of the decision that they do not owe a section 189B(2) relief duty; or,

    2. (b) the housing authority notifies them of a decision that, once the section 189B(2) relief duty comes to an end, they do not owe a duty under section 190 (duties to persons becoming homeless intentionally) or section 193(2) (the main housing duty owed to applicants with priority need who are not homeless intentionally).

15.9 So, an applicant who the housing authority has found to be not in priority need within the 56 day ‘relief stage’ will no longer be owed a section 188(1) interim duty to accommodate, but will continue to be owed a section 189B(2) relief duty until that duty ends or is found not to be owed.

  1. 15.10 For any other case (including for applicants who have a priority need, and for applicants who the housing authority have reason to believe will be owed a duty because they have reapplied within 2 years of accepting a private rented sector offer (for further guidance on reapplication after a private rented sector offer see Chapter 18), the section 188(1) interim duty will end at whichever is the later of:

    1. (a) the housing authority notifies them of what duty (if any) they are owed under Part 7 of the 1996 Act once the section 189B(2) relief duty comes to an end;

    2. (b) the housing authority notifies them that they are not owed the section 189B(2) relief duty, or that this duty has come to an end;

    3. (c) the housing authority notifies them of a decision following their request for a review as to the suitability of a final accommodation offer or Part 6 offer made within the section 189B relief stage.

15.11 In summary, a housing authority may bring the section 188(1) interim accommodation duty to an end within the 56 day period (the relief stage) by issuing a section 184 decision that the applicant does not have priority need; or by issuing a notification that the relief duty is not owed or has been brought to an end. If neither of these notifications is issued within the 56 day period, the section 188(1) interim accommodation duty will be brought to an end by notification of what further duties are owed, if any, under section 193 or section 190. However, in the event that the relief duty is brought to an end following refusal of a final accommodation or Part 6 offer, and the applicant requests a review as to the suitability of the accommodation offered, the section 188(1) duty will continue until a decision on the review has been notified to the applicant.

15.12 In circumstances where an applicant is found not to be eligible for assistance, the housing authority must provide, or secure the provision of, information and advice as set out in section 179. If (section 188) interim accommodation has been provided, notice periods should take account of the needs of the applicant and the time required for them to access assistance. For households including children or particularly vulnerable adults who are owed duties under the Children Act 1989 or Care Act 2014, local authorities should consider having arrangements in place to manage a transition in responsibilities, so that there is no break in the provision of accommodation for applicants who cease to be eligible for support under the 1996 Act.

Section 190(2): duty to provide accommodation to applicants who are intentionally homeless

15.13 On reaching a decision that an applicant has priority need and is intentionally homeless, the housing authority must secure accommodation for a period of time that will provide a reasonable opportunity for them to find their own accommodation.

15.14 In determining the period of time for which accommodation will be secured under section 190(2) housing authorities must consider each case on its merits. A few weeks may provide the applicant with a reasonable opportunity to secure accommodation for themselves. However, some applicants might require longer and others, particularly where the housing authority provides pro-active and effective assistance, might require less time.

  1. 15.15 Housing authorities will need to take into account:

    1. (a) the particular needs and circumstances of the applicant and the resources available to them to secure accommodation. This might include any health or support needs that make it more difficult for the applicant to find and secure accommodation, as well as the support available from their family or social network;

    2. (b) the housing circumstances in the local area, and the length of time it might reasonably take to secure accommodation. In assessing this the housing authority might reflect on the efforts previously made by both the housing authority and the applicant to relieve their homelessness, and why these had not proved successful;

    3. (c) arrangements that have already been made by the applicant which are likely to be successful within a reasonable timescale. For example, if the applicant has secured accommodation that is not yet available to occupy or can demonstrate that accommodation will be so secured, the housing authority should consider providing section 190(2) accommodation until the applicant is able to take up the accommodation.

Section 199A(2) and section 200(1): duties to accommodate applicants with no local connection pending outcome of referral

15.16 If the housing authority has notified an applicant that it proposes to refer the case to another housing authority, the notifying authority has a duty under section 199A(2) (if referral is in the relief stage of an applicant who the authority has reason to believe may have a priority need) or section 200(1) (if referral is in the section 193 main housing duty stage of an applicant who has a priority need and is unintentionally homeless) to secure that accommodation is available for the applicant until they are notified of the decision whether the conditions for referral are met. At this point the duty under section 199A(2) or 200(1) will come to an end and a duty under section 189B or section 193(2) will be owed by either the notified housing authority or the notifying housing authority. For further guidance on referrals to another housing authority see Chapter 10.

Suitability of accommodation

15.17 Section 206(1) provides that all accommodation provided under Part 7 of the 1996 Act must be suitable for the applicant and their household, and the suitability requirements under section 210 apply. For further guidance on the suitability of accommodation see Chapter 17. Housing authorities may take into account the interim nature of a placement when assessing whether or not it is suitable; as accommodation may be suitable for a few days or weeks that would not be suitable for a longer term placement.

15.18 The applicant does not have the right to ask for a statutory review under section 202 of the housing authority’s decision as to the suitability of interim accommodation, but housing authorities are reminded that such decisions could be subject to judicial review.

Ending interim accommodation arrangements

15.19 When a housing authority is satisfied that they are under no further duty to secure interim accommodation or where this duty has ended, the housing authority will need to terminate the applicant’s right of occupation. In the first instance, a housing authority should look to the terms of the licence or tenancy under which interim accommodation has been provided to establish the length of the notice period required.

15.20 Interim accommodation is usually provided under licences excluded from the requirement to issue 4 weeks written notice provided by the Protection from Eviction Act 1977. The courts have applied this principle in cases where the accommodation provided was B&B accommodation in a hotel, and where it was a self-contained flat. Consequently, housing authorities are required only to provide an applicant with reasonable notice to vacate the accommodation, and do not need to apply for a possession order from the court. However, housing authorities are public bodies and so must act reasonably by giving the applicant at least some opportunity to find alternative accommodation before the interim accommodation is terminated. What is considered ‘reasonable notice’ would depend on the facts of the case, taking into account the circumstances of the applicant and allowing time for them to consider whether to request a review of the decision.

15.21 In cases involving applicants who have children under 18 where the housing authority have reason to believe that the applicant may be ineligible for assistance or may be homeless intentionally, the housing authority must, subject to the applicant’s consent, alert the children’s services authority to the case. A referral to the children’s services authority may also be made without the applicant’s consent where there are safeguarding concerns, in accordance with local procedures.

Refusal or loss of interim accommodation

15.22 Where an applicant rejects an offer of interim accommodation (or accepts and moves into the interim accommodation and then later rejects it), this will bring the housing authority’s interim accommodation duty to an end – unless it is reactivated by any change of circumstances. Note, however, that an applicant’s rejection of interim accommodation does not end other duties that the housing authority may owe under Part 7.

Discretionary powers to secure accommodation

15.23 Housing authorities have powers to secure accommodation for certain applicants who request a review of certain decisions on their case, and to certain applicants requesting accommodation pending determination of a county court appeal.

15.24 The fact that a housing authority has decided that an applicant is not eligible for housing assistance under Part 7 does not preclude it from exercising its powers to secure accommodation pending a review or appeal. However, housing authorities should note that section 54 of, and schedule 3 to, the Nationality, Immigration and Asylum Act 2002 prevent them from exercising their powers to accommodate an applicant pending a review or appeal to the county court, where the applicant is a person who falls within one of a number of classes of person specified in schedule 3 unless there would otherwise be a breach of the person’s rights under the European Court of Human Rights or rights under EU Treaties (see paragraph 7.22). For further guidance on eligibility see Chapter 7.

Powers to accommodate pending a review

15.25 Under section 202, applicants have the right to ask for a review of a housing authority’s decision on a number of issues relating to their case, and may also request that accommodation is secured for them pending a decision on the review. For further guidance on reviews see Chapter 19. Housing authorities have powers to accommodate applicants pending a decision on reviews under section 188(3), section 199A(6) and section 200(5) of the 1996 Act.

  1. 15.26 In considering whether to secure accommodation pending review housing authorities will need to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to them, against proper consideration of the possibility that the applicant might be right. Housing authorities should consider the following, along with any other relevant factors:

    1. (a) the merits of the applicant’s case that the original decision was flawed and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment;

    2. (b) whether any new material, information or argument has been put to them which could alter the original decision; and,

    3. (c) the personal circumstances of the applicant and the consequences to them of a decision not to exercise the discretion to accommodate.

15.27 Where an applicant is refused accommodation pending a review, they may seek to challenge the decision through judicial review.

Power to accommodate pending an appeal to the county court

  1. 15.28 Where an applicant is dissatisfied with a housing authority’s section 202 review decision or are not notified of the review decision within the proper time limits, an applicant has the right to appeal to the county court on a point of law arising from the review decision or original homelessness decision. For further guidance on reviews see Chapter 19. Under section 204(4), housing authorities have the power to accommodate certain applicants:

    1. (a) during the period for making an appeal against their decision; and,

    2. (b) if an appeal is brought, until it and any subsequent appeals are finally determined.

15.29 This power may be exercised where the housing authority was previously under a duty to secure accommodation for the applicant’s occupation under section 188, section 190, section 199A or section 200; and may be exercised whether or not the housing authority has exercised its powers to accommodate the applicant pending review.

15.30 In deciding whether to exercise this power, housing authorities will need to adopt the same approach, and consider the same factors, as for a decision whether to exercise their power to accommodate pending a review (see paragraph 15.26).

15.31 Under section 204A, applicants have a right to appeal to the county court against decisions on the use of the section 204(4) power to accommodate. This enables an appeal against decisions not to secure accommodation for them pending their main appeal, or to stop securing accommodation, or to secure accommodation for only a limited period before final determination of the main appeal by the county court).

15.32 In deciding a section 204A appeal, if the court quashes the decision of the housing authority, it may order the authority to accommodate the applicant, but only where it is satisfied that failure to do so would substantially prejudice the applicant’s ability to pursue the main appeal on the homelessness decision. For further guidance on reviews see Chapter 19.

Powers to secure accommodation to prevent or relieve homelessness

15.33 Housing authorities have duties to help prevent and relieve homelessness for eligible applicants who are threatened with becoming homelessness within 56 days, or are homeless. The section 195(2) prevention duty requires authorities to take reasonable steps to help the applicant to secure that accommodation does not cease to be available to them, and the relief duty requires housing authorities to take reasonable steps to help the applicant to secure that suitable accommodation becomes available to them for at least 6 months. For further guidance on the prevention duty see Chapter 12 and for further guidance on the relief duty see Chapter 13.

15.34 Section 205(3) of the 1996 Act enables housing authorities to discharge the section 189B(2) relief and/or section 195(2) prevention duties by securing accommodation for an applicant, where it decides to do so. The power to secure accommodation to applicants to prevent or relieve homelessness, regardless of priority need status, provides more flexibility to pursue appropriate housing options for applicants.

15.35 Housing authorities might use the section 205(3) power to deliver accommodation services for groups that are at higher risk of homelessness, for example young people with low incomes. The power might also be used to provide additional help to those least able to secure accommodation directly from a private landlord, such as people with an offending history or people with a mental health problem. Housing authorities will wish to consider local priorities, needs and resources when considering how the power might best be utilised in their district.

Section 193C(4): duty to accommodate applicants who have deliberately and unreasonably refused to co-operate pending final offer

15.36 Applicants who have priority need but are no longer owed a section 189B relief duty following service of a section 193B notice due to their deliberate and unreasonable refusal to co-operate will not be owed the section 193 main housing duty but will be owed an accommodation duty under section 193C(4).

15.37 This section 193C(4) duty ends if the applicant accepts or refuses a final accommodation offer or a final Part 6 offer. A ‘final accommodation offer’ is an offer of an assured shorthold tenancy made by a private landlord with the approval of the housing authority, with a view to bringing the section 193C(4) duty to an end. The offer must be of a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988) of at least 6 months duration, and the accommodation must be suitable for the applicant. A ‘final Part 6 offer’ is a suitable housing allocation (under Part 6 of the 1996 Act) made in writing, and which states that it is a final offer for the purposes of this section. A housing authority must not approve a final accommodation offer or make a final Part 6 offer if the applicant has a contractual obligation in respect of their existing accommodation which they are unable to bring to an end before being required to take up the offer. For further guidance on suitability see Chapter 17.

  1. 15.38 The section 193C(4) duty will also end if the applicant:

    1. (a) ceases to be eligible for assistance;

    2. (b) becomes homeless intentionally from the accommodation provided under section 193C(4);

    3. (c) accepts an offer of an assured tenancy from a private landlord; or,

    4. (d) voluntarily ceases to occupy as their only or principal home, the accommodation provided.

Duty to secure accommodation under the section 193(2) ‘main housing duty’

15.39 Where an applicant is unintentionally homeless, eligible for assistance and has a priority need for accommodation, the housing authority has a duty under section 193(2) to secure that accommodation is available for their occupation (unless it refers the application to another housing authority under section 198). This is commonly known as ‘the main housing duty’. However, the main housing duty will not be owed to an applicant who has turned down a suitable final accommodation offer or Part 6 offer made during the section 189B(2) relief stage, or has been given notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. For further guidance on deliberate and unreasonable refusal to co-operate see Chapter 14.

15.40 The accommodation secured must be available for occupation by the applicant together with any other person who normally resides with them as a member of their family, or any other person who might reasonably be expected to reside with them. It must be suitable for their occupation. For further guidance on suitability see Chapter 17.

  1. 15.41 The housing authority will cease to be subject to the duty under section 193(2) (the main housing duty) in the following circumstances:

    1. (a) the applicant accepts a suitable offer of accommodation under Part 6 (an allocation of social housing) (section 193(6)(c)). This would include an offer of an assured tenancy of a private registered provider property via the housing authority’s allocation scheme;

    2. (b) the applicant accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord (section 193(6)(cc)). This could include an offer of an assured tenancy made by a private registered provider;

    3. (c) the applicant accepts or refuses a private rented sector offer - an offer of an assured shorthold tenancy of at least 12 months made by a private landlord (section 193(7AA)). For this to be the case the applicant must have been informed in writing of the possible consequences of refusing or accepting the offer, their right to request a review of the suitability of the accommodation, and the duties that would be owed to them on re-application if they became unintentionally homeless from the accommodation within 2 years of accepting the offer;

    4. (d) the applicant refuses a final offer of accommodation under Part 6 (an allocation of social housing). The main housing duty does not end unless the applicant is informed of the possible consequences of refusal and of their right to ask for a review of the suitability of the accommodation (section 193(7)), the offer is made in writing and states that it is a final offer (section 193(7A)), and the housing authority is satisfied that the accommodation is suitable and that it would be reasonable for the applicant to accept it (section 193(7F));

    5. (e) the applicant refuses an offer of temporary accommodation which the housing authority is satisfied is suitable for the applicant (section 193(5)). For this to be the case the applicant must have been informed of the possible consequences of refusal and of their right to ask for a review of the suitability of the accommodation, and have been notified by the housing authority that it regards itself as having discharged its duty.

  1. 15.42 The main housing duty will also end if the applicant:

    1. (a) ceases to be eligible for assistance as defined in section 185 of the 1996 Act;

    2. (b) becomes homeless intentionally from accommodation made available to them under section 193. For further guidance on intentional homelessness see Chapter 9;

    3. (c) voluntarily ceases to occupy as their principal home the accommodation made available under section 193.

15.43 In restricted cases housing authorities should, as far as is reasonably practicable, bring the section 193(2) duty to an end through the offer of a assured shorthold tenancy of at least 12 months duration with a private landlord (section 193(7AD)). The applicant will not be owed a section 195A duty if they re-apply as unintentionally homeless within 2 years of accepting the offer. For further guidance on restricted cases see Chapter 7.

Pre-Localism Act 2011 cases

15.44 In circumstances where the housing authority accepted a section 193(2) duty on an application made before 9 November 2012, that duty cannot be brought to an end through an offer of private rented accommodation unless that offer meets the requirements of ‘a qualifying offer’.

15.45 A qualifying offer must be of a fixed-term tenancy of at least 12 months duration and be accompanied by a written statement that states the term of the tenancy being offered and explains in ordinary language that there is no obligation on the applicant to accept the offer, but if the offer is accepted the housing authority will cease to be subject to the section 193 duty. The applicant must have signed a statement acknowledging that he or she has understood the written statement accompanying the offer.

Making suitable offers

15.46 The Secretary of State recommends that applicants are given the chance to view accommodation that is offered on anything other than an interim basis, before being required to decide whether they accept or refuse an offer, and before being required to sign any written agreement relating to the accommodation (e.g. a tenancy agreement). Where housing authorities are making offers of accommodation outside their district they should take particular care to ensure that applicants have sufficient information about the location of the accommodation and the services that would be available to them there and that applicants are given a reasonable amount of time to consider the offer made before reaching a decision. Under section 202(1A), an applicant who is offered accommodation can request a review of its suitability whether or not they have accepted the offer. For further guidance on suitability see Chapter 17 and for further guidance on reviews see Chapter 19.

15.47 Where an applicant has contractual or other obligations in respect of their existing accommodation (e.g. a tenancy agreement or lease), the housing authority can only reasonably expect an offer to be taken up if the applicant is able to bring those obligations to an end before being required to take up the offer (section 193(8)).

15.48 Housing authorities should allow applicants a reasonable period for considering offers of accommodation that will bring the main housing duty to an end whether accepted or refused. There is no set reasonable period; some applicants may require longer than others depending on their circumstances, whether they wish to seek advice in making their decision and whether they are already familiar with the property or locality in question. Longer periods may be required where the applicant is in hospital or temporarily absent from the district. In deciding what a reasonable period is, housing authorities must take into account the applicant’s circumstances.

15.49 For further guidance on accommodation arrangements see: