Homeless Code of Guidance & regulations issued

23.02.2018

The Government has issued the statutory guidance that will apply from 3 April 2018 in England, when the Homelessness Reduction Act 2017 comes into force.

Supporting regulations have also been issued concerning s.202 reviews, non-cooperation and referrals by public authorities.

Mouse pointer icon hovering over 'Guidance' button

Code of Guidance

The Code of Guidance is available here. If you're a homelessness manager and were planning a relaxing weekend, think again!

Unfortunately, at the time of writing the Code is only available as a series of web pages. Which let's face it, makes the guidance far less easy to use in practice and requires you to have an internet connection. Let's hope they provide a pdf version post-haste!

The Government has also published a summary of the responses to the consultation to the guidance. We're not trusted with the actual responses (which I for one would have found useful, for example in seeing issues where charities and those representing homeless persons have concerns).

The Code doesn't include a yet-to-be-finalised Annex 2. This is because the Local Authorities' Agreement in relation to local connection referrals is subject to consultation until 13th March.

Regulations

The Homelessness (Review Procedure etc.) Regulations 2018 cover various bases, including:

  • the amended rules for section 202 reviews (internal appeals)
  • the procedure to be followed when homeless applicants are notified that the prevention or relief duty has ended because they've failed to co-operate, and
  • the referral duty owed by certain public authorities.

A few initial observations about the contents of the regulations are set out below.

The s.213B duty to refer

The Code helpfully summarises (at para 4.3) the specific bodies that will owe the duty to make referrals to a local housing authority from 1st October 2018 (set out in full in the Schedule to the regs):

  • prisons
  • youth offender institutions
  • secure training centres
  • secure colleges
  • youth offending teams
  • probation services (including community rehabilitation companies)
  • Jobcentre Plus
  • social service authorities
  • emergency departments
  • urgent treatment centres
  • hospitals in their function of providing inpatient care
  • the regular armed forces (in respect of members of the Royal Navy, regular army and Royal Air Force.

Notable exceptions are:

  • housing associations, and
  • GPs.

Non-cooperation

Councils will have to adopt a written procedure which governs the issuing of notices to end the prevention or relief duty where the homeless applicant has deliberately and unreasonably refused to co-operate (by not taking mandatory steps in their housing plan).

This procedure must be kept under review and must give effect to the requirements set out in regulation 3.

In essence Reg.3 requires a non-cooperation discharge to be checked by another member of staff who is of the same seniority or more senior. This second person who authorises the discharge notice (the 'appropriate person') must not have been involved in the original decision to give the discharge notice.

Reg.3(2)(b) includes additional requirements as to who can qualify as an appropriate person, which concern the contractual arrangements under which they are engaged by the council.

The Code suggests:

The appropriate person conducting the second sign off should give particular consideration as to whether the original decision to issue the notice had due regard to the circumstances and needs of the applicant, whether or not these were properly identified in the authority's assessment of the applicant's case under section 189A.
para 14.59

The requirements set out at Reg.3 don't apply to the 'relevant warning' notice that must be given before the duty is ended (under s193B(4) and (5)).

The Government has not prescribed a minimum number of days for the reasonable period of time that must elapse after the warning notice is given (i.e. before the duty is ended). When training homelessness officers I've suggested a minimum of 14 days would be a good starting point in most cases.

However, as the Code points out:

authorities should ensure sufficient time is given to allow the applicant to rectify the non-co-operation and prevent a notice being issued to end the prevention or relief duty. This will vary according to the particular needs and circumstances of the applicant.
para 14.14

Section 202 reviews

You should read Part 3 if you need to fully acquaint yourself with the regulations governing internal reviews. The regulations apply when a review is requested on or after 3rd April.

Perhaps of most immediate significance are some new time limits.

The council must notify the applicant that any representations in connection with the review must be made within two weeks (or such longer period that the reviewing officer agrees to in writing) where the decision under review is:

  • a decision about the steps the council will take to perform the s.195(2) prevention duty ('reasonable steps' to help the applicant to keep their home)
  • a decision about the steps the council will to take to perform the s.189B(2) relief duty (reasonable steps to help a homeless person obtain accommodation)
  • a decision to end the prevention duty by giving notice under s.195(5), or
  • a decision to end the prevention duty by notifying a decision that the applicant has deliberately and unreasonably refused to co-operate (Reg.5(3)(b)).

This information will usually be given when the council acknowledges the review request in writing and confirms the procedure they will be following in connection with the review.

Different time limits apply for notifying the decision on the review, according to the type of decision being challenged.

The review decision must be notified within three weeks of the review request or (if applicable) three weeks from the date on which representations were received, where the review concerns:

  • a decision about the steps the council will be taking for the purpose of performing the prevention duty
  • a decision about the steps the council will be taking for the purpose of performing the relief duty, or
  • a decision to end the prevention duty by giving notice under s.195(5), or
  • a decision to end the prevention duty by notifying a decision that the applicant has deliberately and unreasonably refused to co-operate (Reg.9(1)(a)).

The time limits for other types of reviews mirror what's in place now, with most review decisions having to be notified within eight weeks of the date on which the review request was received.

The existing 'minded to' and oral hearing procedure under regulation 6(2) (where the reviewing officer identifies a deficiency in the original decision) is reproduced, but now at Reg.7(2).

Another gripe

It's worth noting that the HTML version of the Code includes links to legislation at legislation.gov.uk.

As we all know (or should know) this groundbreaking website doesn't actually ensure that all Acts and regulations are provided in their amended form. Particular care should therefore be taken to check whether we're looking at the current version.

I recently wrote to my MP about this failure to ensure that the public and professionals can quickly check the law (without having to subscribe to a legal publisher's database).

The (now departed) Minister not only stated that 8% of statutes are not provided in their amended form, but appeared to confirm that there's no plan to bring primary legislation up to date within any defined timescale.

And there was me thinking that Conservative governments valued the rule of law.

Need some help?

Feel free to contact me if you need some help with writing policies or procedures in relation to the new Act, or would like to engage me for undertaking s.202 reviews.

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