Homelessness code of guidance for local authorities

Chapter 17: Suitability of accommodation

Guidance on housing authority duties to ensure that accommodation secured for homeless applicants is suitable.

17.1 This chapter provides guidance on the factors to be taken into account when determining the suitability of accommodation secured and helped to secure under the 1996 Act. This includes (temporary) accommodation secured under interim accommodation duties or the main housing duty as well as settled accommodation which would bring the prevention, relief or main housing duty to an end.

17.2 Section 206 provides that where a housing authority discharges its functions to secure that accommodation is available for an applicant the accommodation must be suitable. This applies in respect of all powers and duties to secure accommodation under Part 7, including interim duties. The accommodation must be suitable in relation to the applicant and to all members of their household who normally reside with them, or who might reasonably be expected to reside with them.

17.3 Section 210 of the 1996 Act sets out matters a housing authority must have regard to when determining suitability. Section 210(2) provides for the Secretary of State to specify by order the circumstances in which accommodation is or is not to be regarded as suitable for someone, and matters to be taken into account or disregarded in determining whether accommodation is suitable.

17.4 Space and arrangement will be key factors in determining the suitability of accommodation. However, consideration of whether accommodation is suitable will require an assessment of all aspects of the accommodation in the light of the relevant needs, requirements and circumstances of the homeless person and their household. The location of the accommodation will always be a relevant factor.

17.5 Housing authorities will need to consider carefully the suitability of accommodation for households with particular medical and/or physical needs. Physical access to and around the home, space, bathroom and kitchen facilities, access to a garden and modifications to assist people with sensory loss as well as mobility needs are all factors which might need to be taken into account.

17.6 Account will need to be taken of any social considerations relating to the applicant and their household that might affect the suitability of accommodation, including any risk of violence, racial or other harassment in a particular locality. Where domestic violence or abuse is involved and the applicant is not able to stay in the current home, housing authorities may need to consider the need for alternative accommodation whose location can be kept a secret and which has security measures and staffing to protect the occupants.

17.7 Accommodation that is suitable for a short period, for example accommodation used to discharge an interim duty pending inquiries under section 188, may not necessarily be suitable for a longer period, for example to discharge a duty under section 193(2).

17.8 Housing authorities have a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability, until such time as the accommodation duty is brought to an end.

17.9 Housing authorities are required to assess whether accommodation is suitable for each household individually, and case records should demonstrate that they have taken the statutory requirements into account in securing the accommodation.

Standards of accommodation

  1. 17.10 Section 210(1) requires a housing authority to have regard to the following provisions when assessing the suitability of accommodation for an applicant:

    1. (a) Parts 9 and 10 of the Housing Act 1985 (the ‘1985 Act’) (slum clearance and overcrowding); and,

    2. (b) Parts 1 to 4 of the Housing Act 2004 (the ‘2004 Act’) (housing conditions, licensing of houses in multiple occupation, selective licensing of other residential accommodation, additional control provisions in relation to residential accommodation).

Suitability of private rented accommodation

17.11 Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 concerns the suitability of privately rented accommodation offered to certain applicants who are homeless or threatened with homelessness.

  1. 17.12 Private rented sector accommodation must meet the requirements of Article 3 if it is to be considered suitable when offered:

    1. (a) to bring to an end the section 193(2) main housing duty (section 193(7F));

    2. (b) as a final accommodation offer made in the 189B relief stage (sections 193A(6) and 193C(9)); or,

    3. (c) to an applicant who has priority need, in order to prevent or relieve their homelessness.

  1. 17.13 A private rented property must not be regarded as suitable if the housing authority are of the view any of the following apply:

    1. (a) it is not in a reasonable physical condition;

    2. (b) electrical equipment supplied with the accommodation does not meet the requirements of Schedule 1 to the Electrical Equipment (Safety) Regulations 2016;

    3. (c) the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;

    4. (d) the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation (see paragraph 17.20);

    5. (e) the landlord is not a fit and proper person to act in the capacity of landlord (see paragraph 17.21).

  1. 17.14 A private rented property must not be regarded as suitable if any of the following apply:

    1. (a) it is a house in multiple occupation subject to licensing under section 55 of the Housing Act 2004 and is not licensed;

    2. (b) it is subject to additional licensing under section 56 of the Housing Act 2004 and is not licensed;

    3. (c) it forms part of residential property which does not have a valid Energy Performance Certificate as required by the Energy Performance of Buildings (England and Wales) Regulations 2012;

    4. (d) it is or forms part of relevant premises which do not have a current gas safety record in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998;

    5. (e) the landlord has not provided a written tenancy agreement to the housing authority which the landlord proposes to use for the purposes of a private rented sector offer, and which the housing authority considers to be adequate. It is expected that the housing authority should review the tenancy agreement to ensure that it sets out, ideally in a clear and comprehensible way, the tenant’s obligations, for example a clear statement of the rent and other charges, and the responsibilities of the landlord, but does not contain unfair or unreasonable terms, such as call-out charges for repairs or professional cleaning at the end of the tenancy.

17.15 The particular requirements of Article 3 do not apply to accommodation secured for households that do not have priority need, or to accommodation that the authority helped the applicant to secure (for example through a bond guarantee or financial assistance) but which the applicant identified themselves. However, the Secretary of State expects housing authorities to make reasonable efforts to ensure private rented accommodation secured for applicants who do not have priority need is safe, and in reasonable condition; and that all applicants looking for their own accommodation have sufficient guidance to enable them to consider standards.

17.16 To determine whether or not accommodation meets the requirements set out in Article 3 housing authorities are advised to ensure it is visited by a local authority officer or someone acting on their behalf able to carry out an inspection. Attention should be paid to signs of damp or mould and indications that the property would be cold as well as to a visual check made of electrical installations and equipment (for example; looking for loose wiring, cracked or broken electrical sockets, light switches that do not work and appliances which do not appear to have been safety tested).

Additional health and safety requirements

17.17 The Regulatory Reform (Fire Safety) Order 2005 applies to the common or shared parts of multi occupied residential buildings. It places a duty on landlords, owners or managing agents to carry out a fire risk assessment of the common parts and implement and maintain appropriate and adequate fire safety measures to manage the risk that lives could be lost in a fire. As part of their responsibilities, landlords should put in place appropriate management and maintenance systems to ensure any fire safety equipment or equipment which may represent a fire hazard, is maintained in good working order, and in accordance with the manufacturers instructions. Landlords are also required to ensure that furniture and furnishings supplied must comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (as amended).

17.18 Housing authorities and fire and rescue authorities should work together to ensure the safety of domestic premises including the provision of fire safety advice to households. Housing authorities will need to satisfy themselves that these regulations have been adhered to.

17.19 Housing authorities are asked to satisfy themselves that there are reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation, where such a risk exists. Since 2015, private sector landlords have been required to have at least one smoke alarm installed on every storey of their properties and a carbon monoxide alarm in any room containing a solid fuel burning appliance (for example a coal fire or wood burning stove). After that, the landlord must make sure the alarms are in working order at the start of each new tenancy.

Fit and proper landlords

  1. 17.20 Housing authorities must satisfy themselves that landlords are fit and proper people to act in the capacity of a landlord. This assessment involves consideration if the landlord has:

    1. (a) committed any offences involving fraud or other dishonesty, violence or illegal drugs, or that are listed in Schedule 3 to the Sexual Offences Act 2003 (offences attracting notification requirements);

    2. (b) practised unlawful discrimination on grounds of sex, race, age, disability, marriage or civil partnership, pregnancy or maternity, religion or belief, sexual orientation, gender identity or gender reassignment in, or in connection with, the carrying on of any business;

    3. (c) contravened any provision of the law relating to housing (including landlord or tenant law); or,

    4. (d) acted otherwise than in accordance with any applicable code of practice for the management of a house in multiple occupation, approved under section 233 of the Housing Act 2004.

17.21 The Secretary of State recommends that when placing households outside of their district that the authority liaise with the receiving district to check whether that authority has taken any enforcement activity against the landlord. The Housing and Planning Act 2016 introduced a range of measures to tackle rogue landlords including a database of rogue landlords or letting agents who have been banned; convicted of certain offences; or received multiple civil penalties for housing offences. Housing authorities could check this database as part of their inquiries.

Tenancy deposit scheme

17.22 Whilst a local authority will not be able to check that a tenant’s deposit has been placed in a tenancy deposit protection scheme prior to them taking the tenancy housing authorities should remind prospective landlords and tenants of their responsibilities in this area.

Housing Health and Safety Rating System (HHSRS)

17.23 Housing authorities are obliged under section 3 of the Housing Act 2004 to keep the housing conditions in their area under review with a view to identifying any action that may need to be taken by them under the Household Health and Safety Ratings System legislation (HHSRS).

17.24 When determining the suitability of accommodation secured under the homelessness legislation, housing authorities should, as a minimum, ensure that all accommodation is free of Category 1 hazards. In the case of an out of district placement it is the responsibility of the placing authority to ensure that accommodation is free of Category 1 hazards.

Overcrowding

17.25 Part 10 of the 1985 Act is intended to tackle the problems of overcrowding in dwellings. Section 324 provides a definition of overcrowding which in turn relies on the room standard specified in section 325 and the space standard in section 326. Housing authorities must be mindful of these provisions when securing or helping to secure accommodation for homeless applicants.

17.26 A room provided within an HMO may be defined as a ‘dwelling’ under Part 10 of the 1985 Act and the room and space standards will therefore apply. Housing authorities should also note that ‘crowding and space’ is one of the hazards assessed by the HHSRS. Any breach of the room and space standards under Part 10 is likely to constitute a Category 1 hazard.

Houses in Multiple Occupation (HMOs)

17.27 Housing authorities must have regard to regulations governing the required standards for any Houses in Multiple Occupation (HMO) that may be secured or helped to secure for an applicant.

17.28 A property is an HMO if it satisfies the conditions set out in sections 254(2) to (4), has been declared an HMO under section 255 or is a converted block of flats to which section 257 applies. Privately owned bed and breakfast or hostel accommodation that is used to accommodate a household pursuant to a homelessness function, and which is the household’s main residence, will fall within this definition of an HMO.

17.29 A housing authority will have to be satisfied that an HMO is suitable for the number of households or occupants it is licensed for and meets statutory standards relating to shared amenities and facilities. These standards are set out in Schedule 3 to the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006. These ‘amenity standards’ will run alongside the consideration of health and safety issues under HHSRS.

Bed and breakfast accommodation

17.30 Bed and breakfast (B&B) accommodation caters for very short-term stays only and affords residents only limited privacy, and may lack or require sharing of important amenities, such as cooking and laundry facilities. Wherever possible, housing authorities should avoid using B&B accommodation as accommodation for homeless applicants, unless, in the very limited circumstances where it is likely to be the case, it is the most appropriate option for the applicant.

17.31 Living in B&B accommodation can be particularly detrimental to the health and development of children. Under section 210(2), the Secretary of State has made the Homelessness (Suitability of Accommodation) (England) Order 2003 (‘the 2003 Order’). The 2003 Order specifies that B&B accommodation is not to be regarded as suitable for applicants with family commitments provided with accommodation under Part 7.

  1. 17.32 Housing authorities should, therefore, use B&B accommodation to discharge a duty to secure accommodation for applicants with family commitments only as a last resort and then only for a maximum of 6 weeks. Applicants with family commitments means an applicant:

    1. (a) who is pregnant;

    2. (b) with whom a pregnant woman resides or might reasonably be expected to reside; or,

    3. (c) with whom dependent children reside or might reasonably be expected to reside.

  1. 17.33 For the purpose of the 2003 Order, B&B accommodation means accommodation (whether or not breakfast is included):

    1. (a) which is not separate and self-contained premises; and,

    2. (b) in which any of the following amenities is shared by more than one household:

      1. (i) a toilet;
      2. (ii) personal washing facilities; or,
      3. (iii) cooking facilities.

17.34 B&B accommodation does not include accommodation which is owned or managed by a housing authority, a private registered provider or a voluntary organisation as defined in section 180(3) of the 1996 Act.

17.35 The 2003 Order provides that if no alternative accommodation is available for the applicant the housing authority may accommodate the family in B&B for a period, or periods, not exceeding 6 weeks in result of a single homelessness application. Where B&B accommodation is secured for an applicant with family commitments, the Secretary of State considers that the authority should notify the applicant of the effect of the 2003 Order, and, in particular, that the authority will be unable to continue to secure B&B accommodation for such applicants any longer than 6 weeks, after which the authority must secure alternative, suitable accommodation.

17.36 When determining whether accommodation other than B&B accommodation is available for use, housing authorities will need to take into account, among other things, the cost to the authority of securing the accommodation, the affordability of the accommodation for the applicant and the location of the accommodation. A housing authority is under no obligation to include in its considerations accommodation which is to be allocated in accordance with its allocation scheme, published under section 167 of the 1996 Act.

17.37 If there is a significant change in an applicant’s circumstances that would bring the applicant within the scope of the 2003 Order, the 6 week period should start from the date the authority was informed of the change of circumstances not the date the applicant was originally placed in B&B accommodation.

17.38 If the conditions for referring a case are met and another housing authority accepts responsibility for an applicant under section 200(4), any time spent in B&B accommodation before this acceptance should be disregarded in calculating the 6 week period.

17.39 B&B accommodation is not suitable for 16 and 17 year old applicants even on an emergency basis.

  1. 17.40 The Secretary of State considers that the limited circumstances in which B&B accommodation may provide suitable accommodation could include those where:

    1. (a) emergency accommodation is required at very short notice (for example to discharge an interim duty to accommodate); or,

    2. (b) there is simply no better alternative accommodation available and the use of B&B accommodation is necessary as a last resort.

17.41 The Secretary of State considers that where housing authorities are unable to avoid using B&B accommodation to accommodate applicants, they should ensure that such accommodation is of a good standard and is used for the shortest period possible.

Standards of B&B accommodation

17.42 Where B&B accommodation is used to accommodate an applicant and is their main residence, it falls within the definition of an HMO. Local authorities have a power under the 2004 Act to issue an HMO Declaration confirming HMO status where there is uncertainty about the status of a property.

17.43 The government recognises that living conditions in HMOs should not only be healthy and safe but should also provide acceptable, decent standards for people who may be unrelated to each other and who are sharing basic facilities. The government has set out in regulation the minimum ‘amenity standards’ required for a property to be granted an HMO licence. These standards will only apply to HMOs covered by mandatory licensing or those HMOs that will be subject to additional licensing, and will not apply to the majority of HMOs. However, housing authorities (or groups of authorities) can adopt their own local classification, amenity specification or minimum standards for B&B and other shared accommodation provided as temporary accommodation under Part 7.

Affordability

  1. 17.44 Under section 210(2), the Secretary of State has made the Homelessness (Suitability of Accommodation) Order 1996. The 1996 Order specifies that in determining whether it would be, or would have been, reasonable for a person to occupy accommodation and in determining whether accommodation is suitable a housing authority must take into account whether the accommodation is affordable by them, and in particular must take account of:

    1. (a) the financial resources available to them (i.e. all forms of income), including, but not limited to:
      1. (i) salary, fees and other remuneration (from such sources as investments, grants, pensions, tax credits etc.);
      2. (ii) social security benefits
      3. (iii) payments due under a court order for the making of periodical payments to a spouse or a former spouse, or to, or for the benefit of, a child;
      4. (iv) payments of child support maintenance due under the Child Support Act 1991;
      5. (v) pensions;
      6. (vi) contributions to the costs in respect of the accommodation which are or were made or which might reasonably be expected to be, or have been, made by other members of their household (most members can be assumed to contribute, but the amount depends on various factors including their age and income);
      7. (vii) financial assistance towards the costs in respect of the accommodation, including loans, provided by a local authority, voluntary organisation or other body;
      8. (viii) benefits derived from a policy of insurance (such as cover against unemployment or sickness);
    2. (b) savings and other capital sums which may be a source of income or might be available to meet accommodation expenses;

    3. (c) the costs in respect of the accommodation, including, but not limited to:
      1. (i) payments of, or by way of, rent (including rent default/property damage deposits);
      2. (ii) payments in respect of a licence or permission to occupy the accommodation;
      3. (iii) mortgage costs (including an assessment of entitlement to support for mortgage interest (SMI) in income support/income-based jobseeker’s allowance/income-related employment and support allowance/universal credit);
      4. (iv) payments of, or by way of, service charges (e.g. maintenance or other costs required as a condition of occupation of the accommodation);
      5. (v) mooring charges payable for a houseboat;
      6. (vi) where the accommodation is a caravan or a mobile home, payments in respect of the site on which it stands;
      7. (vii) the amount of council tax payable in respect of the accommodation;
      8. (viii) payments by way of deposit or security in respect of the accommodation;
      9. (ix) payments required by an accommodation agency;
    4. (d) payments which that person is required to make under a court order for the making of periodical payments to a spouse or former spouse, or to, or for the benefit of, a child and payments of child support maintenance required to be made under the Child Support Act 1991; and,

    5. (e) other reasonable living expenses

17.45 Housing authorities will need to consider whether the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, heating, transport and other essentials specific to their circumstances. Housing costs should not be regarded as affordable if the applicant would be left with a residual income that is insufficient to meet these essential needs. Housing authorities may be guided by Universal Credit standard allowances when assessing the income that an applicant will require to meet essential needs aside from housing costs, but should ensure that the wishes, needs and circumstances of the applicant and their household are taken into account. The wider context of the applicant’s particular circumstances should be considered when considering their household expenditure especially when these are higher than might be expected. For example, an applicant with a disabled child may have higher travel costs to ensure that the child is able to access additional support or education that they require and so this should be taken into account when assessing their essential needs, and the income that they have available for accommodation costs.

Location of accommodation

17.46 The suitability of the location for all the members of the household must be considered by the authority. Section 208(1) of the 1996 Act requires that authorities shall, in discharging their housing functions under Part 7 of the 1996 Act, in so far as is reasonably practicable, secure accommodation within the authority’s own district.

17.47 Where it is not reasonably practicable to secure accommodation within district and an authority has secured accommodation outside their district, the housing authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authority’s district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the applicant has specified a preference.

17.48 Generally, where possible, housing authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support.

17.49 In assessing the significance of disruption to employment, account will need to be taken of their need to reach their normal workplace from the accommodation secured. In assessing the significance of disruption to caring responsibilities, account should be taken of the type and importance of the care household members provide and the likely impact the withdrawal would cause.

17.50 When securing accommodation for families with children housing authorities should be mindful of their duties under section 11 of the Children Act 2004 to discharge their functions with regard to the need to safeguard and promote the welfare of children. This would include minimising the disruption to the education of children and young people, particularly (but not solely) at critical points in time such as leading up to taking GCSE (or their equivalent) examinations.

17.51 Before a family that includes a school age child is placed out of district, the housing authority should liaise with the receiving authority and make every reasonable effort to ensure arrangements are or will be put in place to meet the child’s educational needs. Local authorities have a duty to ensure that school places are available for children who have moved in to their area, but particular care should be taken by housing authorities when placing families that may require more support to access school places, to ensure educational needs will be met.

17.52 Account should also be taken of medical facilities and other support currently provided for the applicant and their household. Housing authorities should consider the potential impact on the health and wellbeing of an applicant or any person reasonably expected to reside with them, were such support to be removed or medical facilities were no longer accessible. They should also consider whether similar facilities are accessible and available near the accommodation being offered and whether there would be any specific difficulties in the applicant or person residing with them using those essential facilities, compared to the support they are currently receiving.

17.53 Housing authorities should avoid placing applicants in isolated accommodation away from public transport, shops and other facilities, where possible.

17.54 In some circumstances there will be clear benefits for the applicant of being accommodated outside of the district. This could occur, for example, where the applicant, and/or a member of their household, would be at risk of domestic abuse or other violence in the district and need to be accommodated elsewhere to reduce the risk of further contact with the perpetrator(s). Another example might be where, upon the advice of the relevant provider of offender management services (Probation Service, Community Rehabilitation Company or Youth Offending Team), ex-offenders or drug/alcohol users would benefit from being accommodated outside the district to help break links with previous contacts which could exert a negative influence.

17.55 There may also be advantages in enabling some applicants to access employment opportunities outside of their current district. The availability, or otherwise, of employment opportunities in the new area may help to determine if that area is suitable for the applicant.

17.56 The Secretary of State considers that applicants whose household has a need for social services support or a need to maintain links with other essential services within the borough, for example families with children who are subject to safeguarding arrangements, should be given particular attention when temporary accommodation is allocated, to try and ensure it is located in or close to the housing authorities own district. Careful consideration should be given to applicants with a mental illness or learning disability who may have a particular need to remain in a specific area, for example to maintain links with health service professionals and/or a reliance on existing informal support networks and community links. Such applicants may be less able than others to adapt to any disruption caused by being placed in accommodation in another district.

17.57 Housing authorities, particularly those that find it necessary to make out of district placements, are advised to develop policies for the procurement and allocation of temporary accommodation which will help to ensure suitability requirements are met. This would provide helpful guidance for staff responsible for identifying and making offers of accommodation, and would make local arrangements, and the challenges involved with sourcing accommodation, clearer to applicants.

17.58 When making offers of accommodation to an applicant a housing authority should make clear in the offer letter why they consider the property to be suitable, taking into account the needs of the applicant and their household. If any members of the household have health problems the authority should state how their medical needs may be met in the district where the accommodation is located. For families with school age children, the authority should set out how the impact on their education has been assessed and what arrangements have been made for their education in the area of placement.

  1. 17.59 Where a housing authority places an applicant in accommodation outside the district under any part of the Act, section 208(2) requires them to notify the authority in whose district the accommodation is situated of the placement. The notification requirement applies to all out of district placements and not just those arranged under interim accommodation duties or the section 193(2) main housing duty. The notification must include:

    1. (a) the name of the applicant;

    2. (b) the number and description of other persons who normally reside with the applicant as a member of his or her family or might reasonably be expected to do so;

    3. (c) the address of the accommodation;

    4. (d) the date on which the accommodation was made available;

    5. (e) which function the housing authority is discharging in securing the accommodation; and,

    6. (f) the notice must be given in writing within 14 days of the accommodation being made available to the applicant.

17.60 Applicants should be given a reasonable amount of time to consider offers of accommodation outside their district (for further guidance see paragraph 15.46). In considering what amount of time is to be considered reasonable, housing authorities should take into account how familiar the applicant might be with the district offered, and the length of time that the household are likely to be living there.

17.61 Housing authorities should record how decisions to place an applicant out of district have been reached, taking into account the household’s collective and individual needs.

Households with pets

17.62 Housing authorities will need to be sensitive to the importance of pets to some applicants, particularly elderly people and rough sleepers who may rely on pets for companionship. Although it will not always be possible to make provision for pets, the Secretary of State recommends that housing authorities give careful consideration to this aspect when making provision for applicants who wish to retain their pet.

Right to request a review of suitability

17.63 Applicants may ask for a review on request of the housing authority’s decision that the accommodation offered to them is suitable under section 202(1)(f), although this right does not apply in the case of interim accommodation secured under sections 188, 190, 200(1), 204(4). For further guidance on accommodation duties see Chapter 15. Under section 202(1A) an applicant may request a review as to suitability regardless of whether or not they accept the accommodation. This applies equally to offers of accommodation made under section 193(5) to discharge the section 193(2) main housing duty and to offers of an allocation of accommodation made under section 193(7) that would bring that duty to an end. This means that the applicant is able to ask for a review of suitability without inadvertently bringing the main housing duty to an end. Housing authorities should note that although there is no right of review of a decision on the suitability of accommodation secured under interim accommodation duties such decisions could nevertheless be subject to judicial review in the High Court. For further guidance see Chapter 19.