Homelessness code of guidance for local authorities

Chapter 6: Homeless or threatened with homelessness

Guidance on how to determine whether a person is homeless or threatened with homelessness according to legislation.

6.1 This chapter provides guidance on how to determine whether a person is ‘homeless’ or ‘threatened with homelessness’ for the purposes of the 1996 Act.

6.2 Under section 184, if a housing authority has reason to believe that a person applying to the housing authority for accommodation, or assistance in obtaining accommodation, may be homeless or threatened with homelessness, it must make inquiries to satisfy itself whether the applicant is eligible for assistance and if so, what duties – if any – are owed to that person. For further guidance on applications for assistance see Chapter 18.

Threatened with homelessness

6.3 Under section 175(4), a person is ‘threatened with homelessness’ if they are likely to become homeless within 56 days. Under section 175(5), a person is also threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been issued in respect of the only accommodation available for their occupation, and the notice will expire within 56 days. Section 195 provides that where applicants are threatened with homelessness and eligible for assistance, housing authorities must take reasonable steps to help prevent their homelessness. For further guidance on the duty to help prevent homelessness see Chapter 12.

Homeless

6.4 There are a number of different factors that determine whether a person is homeless. Under section 175, a person is homeless if they have no accommodation in the UK or elsewhere which is available for their occupation and which that person has a legal right to occupy. A person is also homeless if they have accommodation but cannot secure entry to it, or the accommodation is a moveable structure, vehicle or vessel designed or adapted for human habitation and there is nowhere it can lawfully be placed in order to provide accommodation. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation. Housing authorities should ask themselves whether the person is homeless at the date of making the decision on their application.

Available for occupation

  1. 6.5 Section 176 provides that accommodation shall be treated as available for a person’s occupation only if it is available for occupation by them together with:

    1. (a) any other person who normally resides with them as a member of the family; or,

    2. (b) any other person who might reasonably be expected to reside with them.

6.6 Both of these groups of people constitute members of the applicant’s household, and accommodation will only be considered to be available if it is available for occupation by both the applicant and all members of their household.

6.7 The first group covers those members of the family who normally reside with the applicant. It is a question of fact as to who is living with the applicant, and housing authorities are not required to satisfy themselves that it is reasonable for this member of the family to normally reside with them. The phrase ‘as a member of the family’, although not defined for these purposes in legislation, will include those with close blood or marital relationships and cohabiting partners, and, where such a person is an established member of the household, the accommodation must provide for them as well.

6.8 The second group relates to any other person, and includes those who may not have been living as part of the household at the time of the application but whom it would be reasonable to expect to live with the applicant as part of their household. People in this group might include a companion for an elderly or disabled person, or children who are being fostered by the applicant or a member of their family. This group will also include those members of the family who were not living as part of the household at the time of the application but who nonetheless might reasonably be expected to form part of it.

6.9 In relation to the second group, it is for the housing authority to assess whether any other person might reasonably be expected to live with the applicant and there will be a range of situations that the authority will need to consider. Persons who would normally live with the applicant but who are unable to do so because there is no accommodation in which they can all live together should be included in the assessment. When dealing with a family which has split up, housing authorities will need to take a decision as to which members of the family normally reside, or might be expected to reside, with the applicant. A court may have made a residence order indicating with whom the children are to live, but in many cases it will be a matter of agreement between the parents and a court will not have been involved.

  1. 6.10 Under section 175(1), a person is homeless if they have no accommodation available for occupation in the UK or somewhere else which they have a legal right to occupy by virtue of:

    1. (a) an interest in it (e.g. as an owner, lessee or tenant) or by virtue of a court order;

    2. (b) an express or implied licence to occupy it (e.g. as a lodger, as an employee with a service occupancy, or when living with a relative); or,

    3. (c) any enactment or rule of law giving them the right to remain in occupation or restricting the right of another person to recover possession (e.g. a person with a right to retain occupation as a statutory tenant under the Rent Act 1977 where that person’s contractual rights to occupy have expired or been terminated).

  1. 6.11 A person who has been occupying accommodation as a licensee whose licence has been terminated (and who does not have any other accommodation available for their occupation) is homeless because they no longer have a legal right to continue to occupy, despite the fact that the person may continue to occupy but as an unauthorised occupier. This may include, for example:

    1. (a) those required to leave hostels or hospitals; or,

    2. (b) former employees occupying premises under a service occupancy which is dependent upon contracts of employment which have ended.

People asked to leave accommodation by family or friends

6.12 Some applicants may have been asked to leave their current accommodation by family or friends with whom they have been living. In such cases, the housing authority will need to consider carefully whether the applicant’s licence to occupy the accommodation has in fact been revoked, rendering the applicant homeless. Authorities are encouraged to be sensitive to situations where parents or carers have been providing a home for a family member with care or support needs (for example, a person with learning difficulties) for a number of years and who are genuinely finding it difficult to continue with that arrangement, but are reluctant to revoke their licence to occupy formally until alternative accommodation can be secured.

6.13 In some cases the applicant may be unable to stay in their accommodation and in others there may be scope for preventing or postponing homelessness, and providing them with an opportunity to plan their future accommodation with assistance from the housing authority. However, housing authorities will need to be sensitive to the possibility that for some applicants it may not be safe for them to remain in, or return to, their home because of a risk of violence or abuse.

6.14 People living with family and friends may have genuine difficulties in finding alternative accommodation that can lead to friction and disputes within their current home, culminating in a threat of homelessness. In some cases external support, or the offer of assistance with securing alternative housing, may help to reduce tension and prevent homelessness. The use of mediation services may assist here.

6.15 In cases involving 16 and 17 year olds threatened with exclusion from the family home children’s services authorities will be the lead agency, but should work closely with housing authorities to prevent homelessness and support young people to remain within the family network, wherever it is safe and appropriate for them to do so.

6.16 Housing authorities will also need to be alert to the possibility of collusion where family or friends agree to revoke a licence to occupy accommodation that would have been reasonable for the person to continue to occupy, as part of an arrangement whose purpose is to enable the applicant to be entitled to assistance under Part 7. For further guidance on intentional homelessness see Chapter 9.

Tenant given notice

6.17 With certain exceptions, a person who has been occupying accommodation as a tenant and who has received a valid notice to quit, or notice that the landlord requires possession of the accommodation, would have the right to remain in occupation until a warrant for possession was executed (following the granting of an order for possession by the court). The exceptions are tenants with resident landlords and certain other tenants who do not benefit from the Protection from Eviction Act 1977.

6.18 Housing authorities should note that the fact that a tenant has a right to remain in occupation does not necessarily mean that they are not homeless. In assessing whether an applicant is homeless in cases where they are a tenant who has a right to remain in occupation pending execution of a warrant for possession, the housing authority will also need to consider whether it would be reasonable for them to continue to occupy the accommodation in the circumstances (section 175(3) of the 1996 Act). For guidance on cases involving service of a section 21 notice see paragraphs 6.35–6.38.

6.19 Some tenants may face having to leave their accommodation because their landlord has defaulted on the mortgage of the property they rent. Where a mortgage lender starts possession proceedings, the lender is obliged to give written notice of the proceedings to the occupiers of the property before an order for possession is granted. The notice must be given after issue of the possession summons and at least 14 days before the court hearing. Housing authorities will need to consider whether it would be reasonable for an applicant to continue to occupy the accommodation after receiving notice of possession proceedings from the lender. Housing authorities should not consider it reasonable for an applicant to remain in occupation until eviction by a bailiff.

Inability to secure entry to accommodation

  1. 6.20 Under section 175(2)(a), a person is also homeless if they have a legal entitlement to accommodation, but is unable to secure entry to it, for example:

    1. (a) those who have been evicted illegally; or,

    2. (b) those whose accommodation is being occupied illegally by squatters.

6.21 Housing authorities will want to support applicants to pursue the legal remedies available to them to regain possession of their accommodation. However, an authority cannot refuse to assist an applicant who is homeless and eligible for assistance under Part 7 simply because such remedies are available.

Accommodation consisting of a moveable structure

6.22 Section 175(2)(b) provides that a person is homeless if they have accommodation available for their occupation which is a moveable structure, vehicle or vessel designed or adapted for human habitation (e.g. a caravan or houseboat), and there is nowhere that they are entitled or permitted to place it and reside in it. The site or mooring for the moveable structure need not be permanent in order to avoid homelessness.

Reasonable to continue to occupy

6.23 Section 175(3) provides that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for them to continue to occupy. There are a number of provisions relating to whether or not it is reasonable for someone to continue to occupy accommodation and these are discussed below. There is no simple test of reasonableness. It is for the housing authority to make a judgement on the facts of each case, taking into account the circumstances of the applicant.

Domestic abuse or other violence

  1. 6.24 Section 177(1) provides that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or other violence against:

    1. (a) the applicant;

    2. (b) a person who normally resides with the applicant as a member of the applicant’s family; or,

    3. (c) any other person who might reasonably be expected to reside with the applicant.

For further guidance on domestic abuse or other violence in determining whether a person is homeless see Chapter 21.

General housing circumstances in the district

6.25 Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.

6.26 This comparison might be appropriate, for example, where it was suggested that an applicant was homeless because of poor physical conditions in their current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.

6.27 Consideration of the general circumstances prevailing in the housing authority’s district might also be appropriate in cases of homelessness due to overcrowding.

Affordability

  1. 6.28 Affordability must be considered in all cases. The Homelessness (Suitability of Accommodation) Order 1996 requires the housing authority to consider the affordability of the accommodation for the applicant. The Order specifies, among other things, that in determining both whether it would be (or would have been) reasonable for a person to continue to occupy accommodation and whether the accommodation is suitable, a housing authority must take into account whether the accommodation is affordable for them and must, in particular, take account of:

    1. (a) the financial resources available to them;

    2. (b) the costs of the accommodation;

    3. (c) maintenance payments (to a spouse, former spouse or in respect of a child); and,

    4. (d) their reasonable living expenses

For further guidance on affordability and suitability of accommodation see Chapter 17.

Tenant given notice of intention to recover possession

6.29 In cases where the applicant has been occupying accommodation as a tenant and has received a valid notice to quit, or a notice that the landlord intends to recover possession, housing authorities should make contact with the landlord at an early stage. This will be necessary both to understand the circumstances in which the applicant has become threatened with homelessness, and to establish what reasonable steps may be taken by the housing authority and by the applicant to prevent their homelessness.

6.30 A housing authority can give notice to end the section 195(2) prevention duty where 56 days has passed since the prevention duty was accepted, whether or not the applicant is still threatened with homelessness (section 195(8)(b)). However, section 195(6) of the 1996 Act prevents an authority from doing this if the applicant has been given a valid section 21 notice which will expire within 56 days, or has already expired, in respect of the only accommodation available for the applicant’s occupation. This means an applicant in these circumstances cannot be ‘timed out’ of the prevention duty if they remain threatened with homelessness, and the authority must continue to help the applicant to retain or secure accommodation until the prevention duty ends in another way.

6.31 However, an authority should give notice to end the section 195 prevention duty when an applicant has become homeless, triggering a section 189B relief duty. It follows that housing authorities will be required to assess at what point a tenant who has been served a valid section 21 becomes homeless and is owed a relief duty; and that expiry of a valid section 21 notice does not automatically render the person homeless for the purposes of the 1996 Act. Under section 175 of the 1996 Act, an applicant must be considered homeless if they have no accommodation to which they have a legal right to occupy that is available to them and reasonable for them to continue to occupy.

6.32 In determining whether it would be reasonable for an applicant to continue to occupy accommodation following expiry of a valid section 21 notice the authority will need to consider all the factors relevant to the case and decide the weight that each should attract. If the landlord confirms a willingness to consider delaying or halting action to recover possession if certain steps are taken, it will usually be reasonable for the tenant to remain in occupation to allow time for action to be taken which may prevent homelessness. This might include, for example, resolving problems with a benefit claim or establishing a manageable repayment schedule for rent arrears.

6.33 Authorities should not adopt a blanket policy or practice on the point at which it will no longer be reasonable for an applicant to occupy following the expiry of a section 21 notice. As well as the factors set out elsewhere in this chapter, factors which may be relevant include the preference of the applicant (who may, for example, want to remain in the property until they can move into alternative settled accommodation if there is the prospect of a timely move, or alternatively to leave the property to avoid incurring court costs); the position of the landlord; the financial impact of court action and any build up of rent arrears on both landlord and tenant; the burden on the courts of unnecessary proceedings where there is no defence to a possession claim; and the general cost to the housing authority. Housing authorities will be mindful of the need to maintain good relations with landlords providing accommodation in the district.

6.34 Throughout any period that an applicant remains in occupation whilst the landlord pursues possession action, the housing authority should keep the reasonable steps in the applicant’s personalised housing plan under regular review, and maintain contact with the tenant and landlord to ascertain if there is any change in circumstances which affects whether or not it continues to be reasonable for the applicant to occupy.

  1. 6.35 The Secretary of State considers that where an applicant is:

    1. (a) an assured shorthold tenant who has received a valid notice in accordance with section 21 of the Housing Act 1988;

    2. (b) the housing authority is satisfied that the landlord intends to seek possession and further efforts from the housing authority to resolve the situation and persuade the landlord to allow the tenant to remain in the property are unlikely to be successful; and,

    3. (c) there would be no defence to an application for a possession order;

then it is unlikely to be reasonable for the applicant to continue to occupy beyond the expiry of a valid section 21 notice, unless the housing authority is taking steps to persuade the landlord to allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.

6.36 The Secretary of State considers that it is highly unlikely to be reasonable for the applicant to continue to occupy beyond the date on which the court has ordered them to leave the property and give possession to the landlord.

6.37 Housing authorities should not consider it reasonable for an applicant to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession.

6.38 Housing authorities should ensure that homeless families and vulnerable individuals who are owed a section 188 interim accommodation duty or section 193(2) main housing duty are not evicted through the enforcement of an order for possession as a result of a failure by the authority to make suitable accommodation available to them.

Other relevant factors

  1. 6.39 Other factors which may be relevant in determining whether it would be reasonable for an applicant to continue to occupy accommodation include:

    1. (a) physical characteristics: it would not be reasonable for an applicant to continue to occupy accommodation if the physical characteristics of the accommodation were unsuitable for the applicant because, for example, they are a wheelchair user and access was limited;

    2. (b) type of accommodation: some types of accommodation, for example women’s refuges, direct access hostels and night shelters are intended to provide very short-term, temporary accommodation in a crisis and should not be regarded as being reasonable to continue to occupy in the medium and longer-term;

    3. (c) people fleeing harassment: in some cases severe harassment may fall short of actual violence or threats of violence likely to be carried out. Housing authorities should consider carefully whether it would be, or would have been, reasonable for an applicant to continue to occupy accommodation in circumstances where they have fled, or are seeking to leave, their home because of non-violent forms of harassment, for example verbal abuse or damage to property. Careful consideration should be given to applicants who may be at risk of witness intimidation. In some criminal cases the police may provide alternative accommodation for witnesses, but usually this will apply for the duration of the trial only. Witnesses may have had to give up their home or may feel unable to return to it when the trial has finished.

6.40 This is not an exhaustive list and authorities will need to take account of all relevant factors when considering whether it is reasonable for an applicant to continue to occupy accommodation.