Welsh homelessness - new guidance and letters

10.12.2019

The Welsh Government has issued supplementary guidance about HWA s.75(3), under which some homeless applicants will be owed the full housing duty despite being intentionally homeless.

Welsh dragon.

Please see my previous post for an explanation of how section 75 now operates.

This post assumes you have read that previous article or are otherwise familiar with the new intentionality rules in Wales.

Quick recap

In summary, section 75(3) of the Housing (Wales) Act 2014 provides that certain young persons, pregnant women and those with children benefit from the full housing duty if their homelessness was not successfully relieved during the initial 56-day relief period; even if the council decides the applicant became homeless intentionally.

However, a second incidence of intentional homelessness within five years may enable a Welsh council to decide that the full duty is not owed in such 'young person household' cases.

Guidance

The new guidance note is an interim measure pending a thorough revision of the Code of Guidance, which is due in 2020. It should be read in conjunction with the pre-existing Code (para 1).

Unusually the guidance does not confirm its status explicitly (for example by stating "this guidance is issued under section 98 of the Housing (Wales) Act 2014"). However, it's clear this is the intention.

Key points include:

  • If someone continues to receive support via the s.75(3) gateway, that support must be continuous (para 8).
  • The date of the intentionality decision, for the purpose of calculating the 5-year period, is the date of the letter which notifies the applicant of the same (para 10).
  • Intentionally homeless applicants who are nevertheless owed the full duty should be informed in the notification letter that they qualified under s.75(3).

In relation to this last point, para 12 states:

Failure to do so, will result in the five year time limit not being enforceable.

This is potentially very important since, surprisingly, the 2014 Act doesn't explicitly require a council to notify an intentionally homeless applicant of the basis on upon which they're owed the main duty. An intentionally homeless applicant who is within one of the four protected classes should be made aware that it's by virtue of subsection (3).

One might add that they should also be informed of the possible consequences, if they are found intentionally homeless again within 5 years (I've included this information in my template letters, links to which can be found at the bottom of the post).

Para 11 makes a recommendation in forthright terms about the timing of a second intentional decision for a protected household within five years:

Authorities should not under any circumstances look to discharge section 73 early (via section 74.3 [sic]) purely in order to ensure that an applicant would fail the five year test.

This could be viewed as a practical manifestation of the Minister's wish that councils "should work to the spirit not simply the letter of the law" (see letter and press release). Section 74(3) is the ground for ending relief duty before the 56th day because reasonable steps have been taken to help the applicant obtain suitable accommodation.

Any council applying the 'second strike' intentionality sanction having ended the relief duty 'early' would be well advised to cite this guidance (to demonstrate regard has been had to it) and give reasons why it was nonetheless considered appropropriate to end the duty.

Questions

Now for some concerns about the interim guidance.

Some of the wording is not as clearly expressed as might be expected. It took me a while to figure out the intended meaning in a couple of places.

This could be because I'm a bit slow. Either way (no sarcastic comments please!) it's an indication that the text may be read in a way that the authors did not intend. All rather unfortunate, since statutory guidance is there to provide clarity and certainty for busy professionals.

Para 9 states:

Where someone has been found intentionally homeless, the five years commences on the date that they received notification that they were owed a duty under section 75. For example, if a duty is owed under this section on 1st January 2020, then if no more than one intentionality decision has taken place since 1st January 2015, then the applicant would be eligible for support under section 75 as a result of section 75(3).

However, I'm not sure the above example bears close scrutiny.

For the reason given in my previous post (essentially, the wording of subsection (3)(f)(ii)) I doubt an intentional decision made before 2 December 2019 can, in any event, be counted as the 'first strike'.

Transitional arrangements

The Welsh Government chose not to make any transitional provisions. This is unusual. When it comes to housing applications commencement orders are usually drafted so as to make clear how the new provisions will apply in respect of previous and current applications.

Para 13 states:

There are no legacy considerations. Where an intentionality decision has been made prior to commencement of section 75(3) on 2nd December 2019, the new provisions are still relevant.

Er, "still relevant" in which situations precisely? And how?

In practice the lack of express transitional provisions may lead to unnecessary disputes. For example, arguments in relation to whether the full duty is now (post commencement) owed towards persons found intentionally homeless before 2 December 2019 (but who are within one of the four protected priority need groups at subsection (3)(e)).

Of course this is not an issue with the guidance, but derives from the commencement order. Given the small size of Wales (in terms of numbers of homeless applications) it may not be a massive issue, and it won't last for long. Nevertheless it has the potential to cause confusion and costly disputes which could easily have been avoided.

Alternatively the guidance could have confirmed the basis on which the Government concluded that express transitional provisions were unnecessary. For example, if the Government's interpretation is that a young person deemed intentionally homeless on 1 October (who, at that time, did not qualify) now qualifies for the main duty by virtue of s.75(3), it would have been useful to have this stated, and the statutory basis for that interpretation confirmed (right to a fresh assessment because of new circumstances or information, by virtue of s.62(2)?).

Right to review?

I would also have liked the guidance to clarify for councils whether an applicant can request a internal statutory review of a 'first strike' intentional decision (i.e. where the applicant is nevertheless owed the main s.75 duty because of subsection (3)).

A council officer might assume that they must review such a decision if asked to do so (and, on determining the review, inform the applicant of their right to appeal to the county court). However, none of decision categories at s.85(1) appear, on a literal reading, to come to the applicant's aid in this respect. A 'first strike' intentional decision is surely not "a decision..that a duty is not owed [present tense]...under section 66, 68, 73, or 75" (s.85(1)(b)), given that it is a decision that the s.75(1) duty is owed.

In summary, it really does pay to consult before implementing guidance. Ambiguities can be identified, improvements made, and confusion avoided.

In their defence

All of which makes me wonder whether our civil servant friends in Cardiff have their hands rather full at the moment with implementing the Renting Homes (Wales) Act 2016. Certainly this complete overhaul of residential landlord and tenant law is turning out to be a rather lengthy affair.

Letters

Finally, you may find the following letters useful if you administer homeless applications in Wales. They're free to download providing you've created an account with your work email address:

s.75(2) gateway to full duty - non-young person household / unintentional

s.75(3) gateway to full duty - intentionally homeless but young person household

Full duty not owed following 2nd intentional decision

Welsh letters index

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