The duty to provide interim accommodation

The provision of interim accommodation has always been an area of contention between applicants, advisers and local authorities. Given the financial pressure on local authorities, the increasing vulnerability of many applicants and pressure on housing stock, it is has long been contested that councils may seek to maximise this scarce resource by evicting applicants who do not ‘play by the rules’. Therefore, in the context of limited resources, it becomes increasingly more important for professionals to understand which rules apply and in which circumstances.

If a client is homeless or is about to be made homeless when making a homelessness application to a local authority, then there will often be a need to house that person temporarily while the local authority makes further enquiries into the applicant’s circumstances and looks for suitable permanent accommodation.  This temporary accommodation is known as interim accommodation.

Section 188 of the Housing Act 1996 provides that a local authority only has a duty to provide interim accommodation where it has reason to believe that the applicant may be homeless, eligible for assistance and in priority need.  This can be provided by the local authority directly (a homelessness unit) or other organisation such as a hotel or homeless hostel.

In most cases, interim accommodation will need to be provided for as long as it takes to find the applicant suitable accommodation which will be available to him / her for at least six months. But does a local authority have the right to end the interim accommodation duty early due to the applicant’s behaviour?

The courts have accepted that the duty to provide interim accommodation is not an absolute one.  In Islington Council v Angela Brooks the court decided that a local authority could discharge its duty to provide interim accommodation where an applicant refused a reasonable offer of accommodation.

The Court of Appeal case of R v Kensington & Chelsea RLBC, ex p Kujtim (1999) underpins the means to treat some kinds of behaviour with zero tolerance, in so far as the behaviour is not as a result of a person’s mental-ill health or disorder.  The Court said that a local authority could treat its duty as discharged if a client unreasonably refuses to observe reasonable requirements. Client ‘refusal’ through bad behaviour has to be persistent and unequivocal – hence the pressing need for housing departments and providers to adopt this approach only after clear verbal and written warnings have been recorded by them and relayed to the individual person.  This needs to include the conditions imposed on the individual in so far as these are reasonable by taking into account the person’s difficulties.

Case Study:  Ending the interim accommodation duty due to ‘non engagement’

Findings from the LGSCO, Newcastle-under-Lyme Borough Council [18 016 156]

Ms B was a woman with long term mental health problems and street homeless, who complained to the Local Government and Social Care Ombudsmen (LGSCO) about Newcastle-under-Lyme Borough Council’s handling of her request for housing after she was made homeless.  The LGSCO upheld Ms B’s complaint, namely that the Council had wrongly cancelled her interim accommodation on the basis she had missed a housing options appointment, even though she went to the Council’s offices on the day to explain she was unwell and could not attend the appointment because of a doctor’s appointment.

The Council ended its interim accommodation duty on the basis of Ms B’s failure to attend appointments. The council had provided verbal warnings of the consequences of Ms B’s non-attendance but did not put the warning in writing, which the LGSCO regarded as procedural error.  The Council’s decision to end interim accommodation arose because it had ‘a policy’ regarding missed appointments, and considered that Ms B did not have good reasons not to attend housing related appointments that the council had arranged for her.

The Homelessness Code of guidance says a council may end the interim accommodation duty if an applicant rejects an offer of accommodation. So, the Council would have been entitled to end the interim accommodation duty if Ms B had refused the Council’s offers of accommodation. However, Ms B’s missed appointments or ‘non-engagement’ were not the same as an active rejection of the council’s housing help.

The Homelessness Code of guidance also requires that local authorities take into account any particular difficulties the applicant has in managing communications. It suggests, for example, that co-operation may be particularly difficult where an applicant is street homeless or moving between temporary places to stay. The problems may be around, for example, an applicant having a learning disability or more practical issues such as being required to contact landlords and not having telephone access. In circumstances such as these, it is less likely that failing to co-operate would be counted as deliberate.

Where a person’s condition means that they struggle cognitively in relation to understanding, or to retaining information that they have been given, the guidance discourages regarding communication or appointment difficulties as deliberate or unreasonable refusal to co-operate. Even in circumstances linked to severe addiction, for example, a substance abuse problem may well have started off as a capacitated choice but it does not mean that its continuation remains something over which the individual has full control or the ability to overcome, unaided.

Housing law requires that where a local authority considers that an applicant has deliberately and unreasonably refused to co-operate it must serve a ‘relevant warning’ on the applicant. A relevant warning is a notice which:

• is served after the applicant deliberately and unreasonably refuses to take a step they have agreed to, or which has been required of the applicant       
• warns the applicant that if s/he does not take such a step after receiving the notice the authority will give a further notice
• explains the consequences of such a notice.

Furthermore, the warning should be given in writing, and if it is not received by the applicant it must be made available at the local authority’s office for collection ‘for a reasonable period’.

You can read the full version case study (Ms B) here

Conclusion and Recommendations

Given the cost and limited availability of interim accommodation, it is understandable that local authorities are tempted to end the interim duty as soon as an applicant’s behaviour becomes uncooperative. It is the same in social care law under the Care Act, with regard to compliance with reasonable conditions for the meeting of assessed eligible needs.

However, as the above judgment of the Court of Appeal and Ms B’s case highlights, individuals and/or their advisers should be quick to challenge such decisions where there has not been a clear and persistent breach of the rules, and / or where no written warning letter was given and / or where an applicant’s behaviour may have been caused by their health problems, including severe addiction.

Missed appointments and an individual’s ‘non-engagement’ should be met by concerned curiosity so that professionals are actively trying to understand the reasons behind people’s apparent failure to comply with the rules, together with clarity about the rules and any policy on how many chances one will be given, so that the message gets across. A non-attendance at an appointment is not the same as someone actively rejecting offers of help, or indeed, choosing to rough sleep. Furthermore, councils should be able to evidence the attempts they made to engage with the individual person by contacting either the person themselves, and where this is not possible, their support networks or family, including outreach services like rough sleeper workers, or even medical professionals.

Equally, outreach teams should be working closely with local housing authorities to ensure that people who are not attending appointments are able to have their views documented and understood. Asking the question “do you understand why I am concerned about the level of risk to your wellbeing?” can be a powerful question to ask and indicate the person’s ability to integrate their individual knowledge into action. It’s important for professionals to understand the difference between a person’s passive refusal (non-attendance or non-engagement) and an active rejection of help; this is particularly important given the significantly higher prevalence rates of organic and functional mental illness, substance use, acquired brain injury, autistic spectrum conditions and learning difficulties amongst people who are street homeless.

Success with co-operation and engagement is not usually a linear iteration but emerges through interactions that involve human emotion and trust. A system that is amenable to this can carry out the necessary person-centred checks and balances prior to making a determination about individual responsibility and culpability, respecting both a person’s right to a private life as well as their entitlement to a life free from degrading and inhumane treatment (often brought about by the very nature of rough sleeping).

VOICES works with closely with experts in the fields of housing, health and social care. This piece was a collaboration between VOICES, Staffordshire North and Stoke-on-Trent Citizens Advise Bureau (SNSCAB) and The Centre for Adult Social Care: Advice, Information and Dispute resolution (CASCAIDr).

About the authors

Belinda Schwehr is Chief Executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of consultancy Care and Health Law. She has been a Barrister, Solicitor, Advocate, Presenter, Writer and University Law Lecturer.

Geoff Davies works at SNSCAB (http://www.snscab.org.uk/) as a Housing Advisor.  Geoff is also VOICES’s in-house housing expert and provides training to VOICES staff and partners, as well as housing advocacy for people experiencing multiple exclusion homelessness.

Bruno Ornelas is the Head of Service and Safeguarding at VOICES and holds a Masters in Safeguarding Adults Law and Policy from Keele University. Bruno recently collaborated on research that looked at safeguarding adult reviews where rough sleeping was a contributing factor.