Assessing the efficacy of the statutory homelessness system in England and Wales: do the conspicuous barriers to aid curtail its usefulness in tackling homelessness?
By Stuart Redpath, Queen’s University Belfast
Amidst the backdrop of systematic welfare retrenchment and escalating living costs, homelessness remains one of the leading sociological issues of our time. Indeed, all enumerated forms of homelessness in England have escalated between 2010 and 2018,[1] returning this issue to the forefront of the legislative agenda. Whilst poverty is cited as the principal cause of homelessness,[2] the potency of legislation to mitigate these circumstances and provide a “safety net” for such individuals is crucial. Given this statistical rise in homelessness, attention must be directed at the efficacy of the statutory homelessness system in England and Wales. The formula for the current provisions is derived from the Housing (Homeless Persons) Act 1977, which granted homeless applicants a judicable right to access accommodation from their local council. This right-based approach has been held as “the saving grace of the welfare state” in the UK’s case,[3] and is looked upon with envy in other foreign states.[4] However, this housing policy does not encompass a universal system of state intervention. Indeed, the statutory system’s provision of enforceable rights for homeless applicants is subject to a number of stipulations, meticulously designed to restrict entitlement. This essay will demonstrate that, in spite of the statutory system’s merits, the imposition of “selective” legal rights constitutes a sub-optimal response to homelessness, as the specific needs and circumstances of many homeless groups are neglected.
The relevant statutory authority for homeless applicants is now codified in Part 7 of the Housing Act 1996 (“HA 1996”). It prescribes a remarkably wide definition for homelessness, encompassing not only roofless individuals but also those who cannot be “reasonably expected” to live in their current accommodation.[5] This broadened definition appropriately accounts for the more equivocal forms of housing precarity, and in so doing benefits a wider group of vulnerable individuals. Indeed, the expansive definition of homelessness benevolently caters to victims of domestic abuse. The Courts have long upheld the view that individuals who are likely to suffer domestic abuse in their current accommodation cannot be reasonably expected to continue living there, and this finding has now been codified by the Domestic Abuse Act 2021. Disabled applicants are also benefited by the broadened definition, as local authorities are required to take account of an individual’s health issues when determining the reasonableness of the applicant’s current accommodation.[6] Indeed, one Court noted that the applicant’s physical ability to access accommodation located on a steep hill constituted an important factor which the local authority should have considered.[7] These exemplar groups demonstrate how the statutory definition for homelessness pays heed to the various forms of hidden homelessness that stretch beyond rough sleeping. A study has found that nearly 62% of homeless people do not show up on official statistics,[8] often because they stay with friends or are living in substandard or unsuitable accommodation. By extending the definition in this way, the HA 1996 provides a reference point for such individuals to access the benefits of the statutory homelessness system and consequently improve their quality of life.
The imposition of enforceable legal rights for eligible applicants under the HA 1996 has evidently contributed to a more efficient system of state intervention in the UK. Social obligations towards the homeless have often been combined with stigma on its recipients, and this remains a perennial theme in many systems across the globe.[9] However, the right-based approach employed by the HA 1996 has created a progressive counter-hierarchy of power.[10] Indeed, receiving housing aid as a matter of right rather than as a matter of bureaucratic discretion more adequately caters to the self-respect of applicants, who may otherwise feel humiliated receiving “semi-charitable handouts.”[11] This system of intervention has helped reduce the stigma associated with homelessness aid and has enabled more applicants to come forward and benefits from the HA 1996. Furthermore, the legal rights offered to applicants under the HA 1996 stretch further than those offered in other states. While most other right-based systems in the international context pertain merely to temporary accommodation,[12] the HA 1996 also implements these rights in relation to permanent accommodation.[13] The provision of permanent accommodation is evidently far more effective in alleviating chronic homelessness, as individuals have a stable source of housing and are less likely to feel as if their life is “on hold.”[14] This uniquely extensive rights-based approach has evidently enjoyed success, with a survey finding that the HA 1996 had secured significant net improvements in the quality of life for homeless families who had secured aid under its provisions.[15] However, the benefits offered by the HA 1996 are not accessible to all, and there remain substantive barriers to many who desperately need assistance.
Priority-need
Evidently, the procurement of accommodation for applicants represents the HA 1996’s core instrument in alleviating homelessness. However, this statutory duty to accommodate a homeless individual, even temporarily, only manifests if they are deemed to be in “priority-need.” Section 189 of the HA 1996 identifies the disparate groups that warrant priority-need; it includes childbearing women, adults with dependent children and vulnerable applicants. These categories have since been extended,[16] but it remains discernible that childless adults have no direct reference point under this provision. Unless such applicants can satisfy the high threshold of vulnerability, local authorities are not statutorily bound to provide any form of accommodation. Given the associated health deficiencies with sleeping rough,[17] it is not surprising that other European States provide some form of emergency shelter for afflicted individuals.[18] Yet under the HA 1996, childless applicants are predominately only entitled to advice and assistance, which has been analytically described as “very poor in quality.”[19] This prevailing lack of provision for single applicants within the HA 1996 constitutes the crucial weakness in the statutory system’s “safety net” which persists to this day.[20]
Section 189 of the HA 1996 specifically caters to applicants who are vulnerable by way of “old age, mental illness or physical disability.” This provision is particularly important for single applicants, as it represents the only viable means of attaining priority-need. Ostensibly, the provision constitutes a philanthropic clause which appropriately mitigates for the mental afflictions from which many applicants may suffer. However, a disconcerting process of exclusion has emerged, whereby only applicants with the most debilitating disorders are capable of benefiting from the legislation. The HA 1996 failed to define “vulnerability,” and the Judiciary counselled that it pertains to an applicant being “less able to fend for himself than an ordinary homeless person”.[21] This definition lays down a very high threshold for applicants, given that nearly 45% of all homeless individuals suffer from some form of diagnosed mental illness.[22] Consequently, applicants who suffer from evidential symptoms of PTSD or depression are now habitually turned away by local authorities, as these are considered “very common conditions” amongst the homeless population.[23] This neglectful approach to applicants’ who suffer from a recognised psychiatric illness is unfortunate, given that homelessness can exacerbate these health issues. Indeed, nearly one third of homeless individuals die from treatable conditions,[24] yet it appears common practice for local authorities to discharge their duty to such individuals at this stage as there is no “priority-need.” Crucially, this prevents the vast majority of childless applicants from attaining any form of accommodation, leaving them effectively unaided by the statutory framework.
This restrictive approach to vulnerability has become even more pronounced in the new millennium, with successive governments pressuring authorities into reducing the number of statutory homeless acceptances.[25] Whilst Section 184 of the HA 1996 requires housing authorities to impartially balance between conflicting medical evidence, it is apparent that they often “rubber stamp” the views of their own medical expert. This was illustrated in R. v. Newham LBC, ex p. Lumley (2001), where the applicant’s GP noted that his patient had already attempted suicide on account of his marked depression and was at serious risk of making another attempt should he be left unaccommodated. Nonetheless, the contracted medical adviser ticked a box indicating that he was not vulnerable, and the authority consequently followed their expert’s finding. Whilst in this case the decision was overturned, local authorities now endeavour to make their decisions “bullet-proof.” Decision-letters are often of inordinate length,[26] and are substantiated by medical assessments from state-contracted firms who have a reputation for denying claims of vulnerability. One such company, NowMedical, provides services for over 150 local authorities in the UK. This practice is flawed, as many of NowMedical’s “experts” are not qualified in psychiatry and fail to actually examine the patient.[27] Whilst the Judiciary has critiqued the use of unqualified medical advisers,[28] they remain a constant source of admonition for local authorities. Evidently, the odds are stacked against homeless individuals even if they suffer from a grave classification of mental illness. It therefore manifests that, in spite of the HA 1996’s provision for mentally ill individuals, prevailing policy directives and dubious practices by bureaucratic decision-makers have consistently neglected the needs of these individuals’, and have effectively abandoned them to the streets.
Whilst the shortcomings of the vulnerability test under Section 189 of the HA 1996 are palpable, recent legislative reform and Court decisions’ have induced optimism for the efficacy of the test going forward. Indeed, the Code of Guidance accompanying the Homelessness Reduction Act 2018 now advises that priority-need can be established through “combining factors.”[29] Theoretically, this means that applicants who suffer from numerous ailments, such as a mental health disorder or a dependence on drugs, should be more readily able to reach the threshold of vulnerability. This constitutes an encouraging change, as more applicants who suffer from viable mental disorders should be able to access accommodation, thus preventing their mental health from deteriorating further. However, it is important to note that local authorities remain reliant on traditional diagnostic categories to support their decisions.[30] Given that the effects of formative pain, trauma and addiction are hard to evidence using traditional diagnostic labels,[31] it is unclear whether this new guidance will overcome the institutional barriers to establishing vulnerability under the HA 1996.
The Judiciary has also highlighted the inadequacies of the Pereira test for vulnerability and urged local authorities to return to the “primacy of the statutory words.”[32] Whilst this attempt by the Court to restructure the vulnerability test was noble, it appears little has been achieved in practice. Subsequent case law has illustrated that local authorities now impose the comparative formulation prescribed in Hotak with an “ordinary person rendered homeless.”[33]Consequently, the flawed reference to hypothetical factors remains a key ingredient in vulnerability decision-making post-Hotak. If the complex needs of mentally ill and handicapped applicants are to be adequately catered for, substantive reform is evidently required.
Intentional homelessness
The statutory homelessness system incorporates an additional barrier to settled accommodation through the institution of an “intentionality” test. This is defined in Section 191 of the HA 1996 and is inclusive of all “deliberate” acts or omissions which cause the applicant to lose any available accommodation which would have been reasonable to occupy. A finding of intentional homelessness substantially reduces the applicant’s entitlement to aid, as a local authority is only required to secure the applicant temporary accommodation for a reasonable period. This provision of temporary accommodation is sub-optimal for recipients, especially for those with children. Numerous studies have demonstrated that prolonged stays in temporary accommodation have an adverse impact on a child’s social and educational well-being.[34] Indeed, multiple moves between temporary accommodation addresses are common, consequently disrupting a child’s established friendships and forcing them to move school. The quality of much of this temporary accommodation is also objectionable. Indeed, the number of homeless applicants temporarily housed in B&B style accommodation increased by 250% between 2009 and 2017. This shared and cramped standard of housing is ill-suited to those with family commitments, yet those who are deemed “intentionally” homeless may have no other option but to accept this offer due to the “one offer” system prescribed by the HA 1996.
The impetus for this repressive “intentionality” test derived from fears of widespread abuse of the homelessness system. Legislators noted that the preceding act created a “perverse incentive for people applying as homeless,” as it allowed applicants to skip the queue for social housing.[35] Somerville questions this assumption given the poor-quality accommodation offered to applicants under “one offer policies.”[36] A survey in 2005 of over 2000 homeless families further exacerbated this flawed cognition, as 85% of the respondents had taken prior actions to prevent their homelessness before turning to their local authority.[37] This suggests that for many, the statutory system is a last resort once they have run out of all other viable housing options. The necessity of an intentionality test in the statutory system is therefore questionable, given that the vast majority of applications are genuine.
Rather than meeting the basic needs of homeless applicants, it appears that the intentionality test prescribed by Section 190 of the HA 1996 is more concerned with punishing errant individuals. Indeed, the 2018 Code of Guidance for local authorities exhibited the test’s ulterior purpose, as it was said to deter applicants who “behave in a way which might lead to the loss of their accommodation.”[38] This has prompted local authorities to adopt a systematic approach, whereby officers “wash their hands” of any applicants deemed irresponsible and thus undeserving of public support.[39] However, this haphazard application of the intentionality test often fails to account for the specific circumstances of applicants. In an interview, one homeless applicant revealed that he was forced to leave his prior accommodation “or get shot.”[40]Indeed, there were visible bullet holes through his window, and he was forced to abandon the tenancy for his own safety. Nonetheless, the local authority decided that he had become intentionally homeless, as he had engaged with dangerous individuals and was consequently “irresponsible.” This illustrates how local authorities maliciously employ the intentionality test, as they failed to acknowledge the perilous situation the applicant was in, opting instead to punish him. The complex needs of many homeless individuals are also neglected under Section 190 of the HA 1996. This is particularly pertinent in the case of rough sleepers, as many of these individuals were previously evicted for rent arrears owing to substance abuse. Whilst clinical officers have stressed the importance of getting these individuals off the street so that they can be effectively treated,[41] authorities will typically use the intentionality test to limit their entitlement under the HA 1996. By coupling needs with problem behaviours in this way, the legislation inhibits rough sleepers’ chances of tackling their other substantive problems, such as drug addiction. As a consequence of Section 190, many rough sleepers routinely find their applications rejected due to the prior causes of their homelessness, and they are left quite literally “out in the cold.”
In the wider context of reduced welfare provision and the promotion of a populist “politics of resentment” by successive conservative governments,[42] it should not be surprising to find that the intentionality test has become even more restrictive and prejudicial to applicants. Interpretation of the word “deliberate” in Section 190 by both the Courts and local authorities has become more austere in recent years. This was illustrated in Denton v Southwark, where a young man was found to have “deliberately” become homeless after being evicted from his parental home for “breach of house rules.”[43] The foregoing case demonstrates how the intentionality test now intercepts actions that are reckless or foolish in nature rather than deliberate, as it is excessive to suggest that the young man had intentionally broke his parents’ house rules in the hope of becoming homeless. This new era of intensified ubiquitous conditionality under the statutory homelessness system, where even misguided applicants are denied permanent accommodation, attests to Carlen’s theory of “agency-maintained homelessness.”[44] Indeed, the intentionality test is evidently employed as a means of keeping applicants who are perceived as imprudent from accessing permanent accommodation. By constructing itself in this way, the HA perpetuates homelessness for certain applicants, and fails to yield a long-term solution.
Prevention and Relief duties
Ever since the imposition of the HA 1996, housing policy has evidently shifted towards preventative measures that negate the need for a statutory homelessness application. This first became apparent in 2003, when the Government began to steer local authorities towards a “Housing Options” model of homelessness prevention.[45] This involved local authorities offering households who were in desperate situations a range of services, such as debt advice, family mediation or rent deposit guarantees. This was particularly beneficial for those who were threatened with homelessness and contributed to an extraordinary 70% percent drop in the number of statutory homelessness acceptances between 2003 and 2010.[46] Whilst at least some of this decline was attributable to genuine prevention, the housing options model represents yet another form of gatekeeping on behalf of local authorities. This is illustrated by the mediation process, where homeless individuals are forced into participation as failure to do so can lead to a “not homeless” finding.[47] Whilst this practice leads to statistical success for the Government, it may inadvertently force an applicant back into a hostile or even abusive living environment. A plethora of case-law has exhibited such gatekeeping in practice. In Robinson v Hammersmith & Fulham LBC, a local authority was found to be in breach of its duty under Part 7 of the HA 1996, as it sought mediation between Robinson and his mother until he was 18 and no longer of priority-need.[48] Whilst the Code of Guidance cautions local authorities on avoiding their obligations under the HA 1996, it is reasonable to believe that many unwitting applicants continue to be steered away from their statutory entitlement to accommodation given that nearly four-fifths of all homelessness cases are now dealt with outside the statutory framework.[49] It consequently manifests that the overall impact of the housing options model on homelessness is a mixed one. It can ensure many individuals are kept off the streets, but may prevent many from accessing their statutory entitlements to accommodation.
This prevailing shift in housing policy towards preventative measures resulted in a steep reshaping of the statutory framework pertaining to homelessness. The progenitor for this reform was the Housing (Wales) Act 2014, which introduced new duties for local authorities. Under this legislation, local authorities are required to offer preventative assistance to all eligible households who are threatened with homelessness within 56 days. If their homelessness cannot be prevented, authorities are required to take “reasonable steps” to relieve their homelessness.[50] This approach has since been adopted in England through the Homelessness Reduction Act 2018, which also instituted a duty to draw up a “personalised housing plan” for the applicant regarding the steps the authority will take to find and secure accommodation.[51] These statutory changes are encouraging, as these initial duties bypass the slippery judicial concepts of priority-need and intentional homelessness. In so doing, the legislation provides a meaningful obligation to single applicants, who were previously left entirely unaided by the statutory system. This universalistic approach has evidently enjoyed success, with 58% of prevention duty cases resulting in the applicant securing accommodation.[52] A majority of these cases involved applicants who did not have any children,[53] indicating that many single people are being effectively aided by these new duties.
In spite of these new duties prescribed by the Homelessness Reduction Act, there remains a substantial number of groups for which the statutory system fails to yield a long-term solution. Where these preventative and relief efforts are unsuccessful, the authority will turn to the restrictive tests of intentionality and priority-need when adjudicating over the final duty to secure accommodation. Consequently, the aforementioned groups that continually fall foul of these tests are still falling through the statutory safety-net, as these preventative duties are limited in their scope and do not guarantee success. Indeed, service providers and councils alike have “universally recognised” the limited impact the new legislation has had on rough sleepers.[54] Such individuals are among the most excluded sections of society, often slipping through the cracks of pre-emptive council assistance. These initial preventative duties have therefore been inefficacious for rough sleepers, and there remain no enforceable legal duties to accommodate unless they meet the priority-need criterion.
Conclusion
This essay has demonstrated the ideational merits of the homelessness statutory framework, and also its underlying flaws. The existing provisions patently offer applicants’ tangible benefits capable of alleviating their homelessness, most notably through the procurement of permanent accommodation. However, the scrupulous imposition of various caveats to accessing such accommodation under the HA 1996 prevents a sizeable minority of homeless individuals from attaining a permanent solution to their housing crisis. The priority-need criterion is of particular consternation, as this diminishes any legal duty to even temporarily accommodate applicants who are sleeping rough. The intentionality test only adds to the statutory system’s shortcomings, by placing blameworthiness above the acute needs of applicants for which the HA 1996 is supposed to offer a viable solution. As a result of these operational deficiencies, the law remains ill-equipped to deal with the basic needs of homeless people. It appears that a more genuinely inclusive system of homelessness mitigation will only manifest when policymakers begin to exhibit a greater tolerance for those “who have themselves on the borderlines of our deeply troubled society.”[55]
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