Homelessness code of guidance for local authorities

Chapter 9: Intentional homelessness

Guidance on determining whether an applicant has become homeless intentionally under homelessness legislation.

9.1 This chapter provides guidance on determining whether an applicant became homeless intentionally under section 191 of the 1996 Act.

9.2 The prevention and relief duties owed to applicants who are eligible for assistance and homeless, or threatened with homelessness, apply irrespective of whether or not they may be considered to be homeless intentionally.

9.3 Applicants who have a priority need, and whose homelessness has not been successfully relieved, are owed a lesser duty if they have become homeless intentionally than would be owed to them if they were homeless unintentionally. This reflects the general expectation that, wherever possible, people should take responsibility for their own accommodation needs and not behave in a way which might lead to the loss of their accommodation.

9.4 Where a housing authority finds an eligible applicant has a priority need but is homeless intentionally and the relief duty has come to an end, they have a duty to secure accommodation which is available to the applicant to provide reasonable opportunity for them to find their own accommodation. The authority must also provide advice and assistance in any attempts the applicant might make to secure accommodation. For further guidance on the accommodation duty owed to intentionally homeless applicants see Chapter 15.

9.5 It is for housing authorities to satisfy themselves in each individual case whether an applicant is homeless intentionally. Generally, it is not for applicants to ‘prove their case.’ The exception is where an applicant seeks to establish that, as a member of a household where another member has been found or is likely to be found to have caused intentional homelessness of the household, they did not acquiesce in the behaviour that led to homelessness. In such cases, acquiescence may be assumed by the housing authority in the absence of material which indicates to the contrary.

9.6 Housing authorities must not adopt general policies which seek to pre-define circumstances that do or do not amount to intentional homelessness. In each case, housing authorities must form a view in the light of all their inquiries about that particular case. Where the original loss of settled accommodation occurred some years earlier and the facts are unclear, it may not be possible for the housing authority to satisfy themselves that the applicant became homeless intentionally.

Definition of intentional homelessness

  1. 9.7 Section 191(1) provides that a person becomes homeless intentionally if ALL of the following apply:

    1. (a) they deliberately do or fail to do anything in consequence of which they cease to occupy accommodation; and,

    2. (b) the accommodation is available for their occupation; and,

    3. (c) it would have been reasonable for them to continue to occupy the accommodation.

However, for this purpose, an act or omission made in good faith by someone who was unaware of any relevant fact must not be treated as deliberate (see paragraph 9.23).

  1. 9.8 Section 191(3) provides that a person must be treated as homeless intentionally if:

    1. (a) the person enters into an arrangement under which they are required to cease to occupy accommodation which it would have been reasonable for the person to continue to occupy; and,

    2. (b) the purpose of the arrangement is to enable the person to become entitled to assistance under Part 7; and,

    3. (c) there is no other good reason why the person is homeless.

Whose conduct results in intentional homelessness?

9.9 Every applicant is entitled to individual consideration of their application. This includes applicants where another member of their family or household has made, or is making, a separate application. It is the applicant who must deliberately have done or failed to do something which resulted in homelessness.

9.10 Where a housing authority has found an applicant to be homeless intentionally, nothing in the 1996 Act prevents another member of their household from making a separate application. Situations may arise where one or more members of a household found to be intentionally homeless were not responsible for the actions or omissions that led to the homelessness. For example, a person may have deliberately failed to pay the rent or defaulted on the mortgage payments, which resulted in homelessness against the wishes or without the knowledge of their partner.

9.11 However, where applicants were not directly responsible for the act or omission which led to their family or household becoming homeless, but they acquiesced in that behaviour, then they may be treated as having become homeless intentionally themselves. In considering whether an applicant has acquiesced in certain behaviour, the housing authority should take into account whether the applicant could reasonably be expected to have taken that position through a fear of actual or probable violence.

Cessation of occupation

9.12 For intentional homelessness to be established there must have been actual occupation of accommodation which has ceased. However, occupation need not necessarily involve continuous occupation at all times, provided the accommodation was at the disposal of the applicant and available for their occupation. The accommodation which has been lost can be outside the UK. Housing authorities are reminded that applicants cannot be considered to have become homeless intentionally because of failing to take up an offer of accommodation. However, an applicant whose refusal of a suitable offer of accommodation brought to an end the section 193(2) duty under which they were at the time accommodated, resulting in the loss of that accommodation, may be considered to be intentionally homeless.

Consequence of a deliberate act or omission

9.13 For homelessness to be intentional, the ending of occupation of the accommodation must be a consequence of a deliberate act or omission by the applicant. Having established that there was a deliberate act or omission, the housing authority will need to decide whether the loss of the applicant’s home is the reasonably likely result of that act or omission. This is a matter of cause and effect. An example would be where a person voluntarily gave up settled accommodation that it would have been reasonable for them to continue to occupy, moved into alternative accommodation of a temporary or unsettled nature and subsequently became homeless when required to leave the alternative accommodation. Housing authorities will, therefore, need to look back to the last period of settled accommodation and the reasons why the applicant left that accommodation, to determine whether the current incidence of homelessness is the reasonably likely result of a deliberate act or omission.

Ceasing to be intentionally homeless

9.14 Where a person becomes homeless intentionally, that condition may continue until the link between the causal act or omission and the intentional homelessness has been broken. It could be broken by an intervening event which, irrespective of any act or omission on the part of the applicant, would have itself led to their being homeless at the point at which the housing authority was carrying out inquiries into their application for assistance. This might be the case where, for example, an applicant gave up accommodation without sufficient good reason but at the later point at which they applied for assistance due to homelessness this accommodation would no longer have been available to them, or reasonable for them to occupy.

9.15 The causal link between a deliberate act or omission and intentional homelessness is more typically broken by a period in settled accommodation which follows the intentional homelessness. Whether accommodation is settled will depend on the circumstances of the case, with factors such as security of tenure and length of residence being relevant. Occupation of accommodation that was merely temporary rather than settled, for example, staying with friends on an insecure basis, may not be sufficient to break the link with the earlier intentional homelessness. However, a period in settled accommodation is not the only way in which a link with the earlier intentional homelessness may be broken: some other event, such as the break-up of a marriage resulting in homelessness, may be sufficient.

Deliberate act or omission

9.16 For homelessness to be intentional, the act or omission that led to the loss of accommodation must have been deliberate, and applicants must always be given the opportunity to explain such behaviour. An act or omission should not generally be treated as deliberate, even where deliberately carried out, if it is forced upon the applicant through no fault of their own. Moreover, an act or omission made in good faith where someone is genuinely ignorant of a relevant fact must not be treated as deliberate (see paragraph 9.23).

  1. 9.17 Generally, an act or omission should not be considered deliberate where, for example:

    1. (a) the act or omission was non-payment of rent or mortgage costs which arose from financial difficulties which were beyond the applicant’s control, or were the result of Housing Benefit or Universal Credit delays;

    2. (b) the housing authority has reason to believe the applicant is incapable of managing their affairs, for example, by reason of age, mental illness or disability;

    3. (c) the act or omission was the result of limited mental capacity; or a temporary aberration or aberrations caused by mental illness, frailty, or an assessed substance misuse problem;

    4. (d) the act or omission was made when the applicant was under duress;

    5. (e) imprudence or lack of foresight on the part of an applicant led to homelessness but the act or omission was in good faith.

9.18 An applicant’s actions would not amount to intentional homelessness where they have lost their home, or were obliged to sell it, because of rent or mortgage arrears resulting from significant financial difficulties, and the applicant was genuinely unable to keep up the rent or mortgage payments even after claiming benefits, and no further financial help was available.

9.19 Where an applicant has lost a former home due to rent arrears, the reasons why the arrears accrued should be fully explored, including examining the applicant’s ability to pay the housing costs at the time the commitment was taken on. Similarly, in cases which involve mortgagors, housing authorities will need to look at the reasons for mortgage arrears together with the applicant’s ability to pay the mortgage commitment when it was taken on, given the applicant’s financial circumstances at the time.

  1. 9.20 Examples of acts or omissions which may be regarded as deliberate (unless any of the circumstances set out in paragraph 9.17 apply) include the following, where someone:

    1. (a) chooses to sell their home in circumstances where they are under no risk of losing it;

    2. (b) has lost their home because of willful and persistent refusal to pay rent or mortgage payments;

    3. (c) could be said to have significantly neglected their affairs having disregarded sound advice from qualified people;

    4. (d) voluntarily surrenders adequate accommodation in this country or abroad which it would have been reasonable for them to continue to occupy;

    5. (e) is evicted because of their anti-social behaviour, nuisance to neighbours or harassment;

    6. (f) is evicted because of violence or threats of violence or abuse by them towards another person;

    7. (g) leaves a job with tied accommodation and the circumstances indicate that it would have been reasonable for them to continue in the employment and reasonable to continue to occupy the accommodation.

Available for occupation

9.21 For homelessness to be intentional the accommodation must have been available for the applicant, their household and any other person reasonably expected to live with them. For further guidance on availability for occupation see Chapter 6.

Reasonable to continue to occupy the accommodation

9.22 An applicant cannot be treated as intentionally homeless unless it would have been reasonable for them to have continued to occupy the accommodation. For further guidance on reasonable to continue to occupy see Chapter 6. It will be necessary for the housing authority to give careful consideration to the circumstances of the applicant and the household, in each case, and with particular care in cases where violence and abuse has been alleged. For further guidance on domestic violence and abuse see Chapter 21.

Act or omissions in good faith

9.23 Acts or omissions made by the applicant in good faith where they were genuinely unaware of a relevant fact must not be regarded as deliberate. Provided that the applicant has acted in good faith, there is no requirement that ignorance of the relevant fact be reasonable.

9.24 A general example of an act made in good faith would be a situation where someone gave up possession of accommodation in the belief that they had no legal right to continue to occupy the accommodation and, therefore, it would not be reasonable for them to continue to occupy it. This could apply where someone leaves rented accommodation in the private sector having received a valid notice to quit or notice that the assured shorthold tenancy has come to an end and the landlord requires possession of the property, and the former tenant was genuinely unaware that they had a right to remain until the court granted an order for possession and a warrant or writ for possession to enforce it.

9.25 Where there was dishonesty there could be no question of an act or omission having been made in good faith.

  1. 9.26 Other examples of acts or omissions that could be made in good faith might include situations where:

    1. (a) a person gets into rent arrears, being unaware that they may be entitled to Housing Benefit, Universal Credit or other social security benefits;

    2. (b) an owner-occupier faced with foreclosure or possession proceedings to which there is no defence, sells before the mortgagee recovers possession through the courts or surrenders the property to the lender; or,

    3. (c) a tenant, faced with possession proceedings to which there would be no defence, and where the granting of a possession order would be mandatory, surrenders the property to the landlord.

9.27 In (c) although the housing authority may consider that it would have been reasonable for the tenant to continue to occupy the accommodation, the act should not be regarded as deliberate if the tenant made the decision to leave the accommodation in ignorance of relevant facts.

Applicant enters into an arrangement

9.28 Housing authorities will need to be alert to the possibility of collusion by which a person may claim that they are obliged to leave available accommodation that would have been reasonable for them to continue to occupy in order to take advantage of the homelessness legislation. Collusion is not confined to arrangements with friends or relatives but can also occur between landlords and tenants. Housing authorities, while relying on experience, nonetheless need to be satisfied that collusion exists, and must not rely on hearsay or unfounded suspicions in finding that an applicant became intentionally homeless under section 191(3).

9.29 For collusion to amount to intentional homelessness, section 191(3) specifies that there should be no other good reason for the applicant’s homelessness. Examples of other good reasons include overcrowding or an obvious breakdown in relations between the applicant and their host or landlord. In some cases involving collusion the applicant may not actually be homeless, if there is no genuine need for the applicant to leave the accommodation. For further guidance on applicants asked to leave by family or friends see Chapter 6.

9.30 Specific guidance relating to intentional homelessness can also be found in the following chapters: