Coronavirus guidance: vulnerability, essential moves and not following instructions

29.04.2020

More guidance has been issued this week, in both England and Wales, regarding coronavirus and social housing.

Cardboard house

Wales

I'll outline the Welsh guidance first because of its significance.

I've lost count of the number of conversations I've recently had along the lines of "We can't squander this opportunity to reduce homelessness."

Councils and their partners have worked tirelessly to accommodate most rough sleepers in recent weeks. It would surely be madness not to use this as a springboard for supporting as many people as possible into settled housing.

The Welsh Government is clearly of the same opinion. Julie James AM, the Minister for Housing and Local Government, issued supplementary statutory guidance for local authorities on 28 April 2020.

I'll highlight some key points below, although homelessness workers in Wales should read the guidance in full. It's only a couple of pages.

In a covering letter the Minister states:

Our very clear expectation is that every Local Authority continues to do all it can to ensure no one is sleeping rough.

She goes on:

I am clear that no one should be without suitable accommodation and support during the pandemic. This includes those, who are currently sleeping rough, and those who are under threat of having to do so, for example, those who are leaving prisons or other institutions without any accommodation to go to, and those who are precariously reliant on others such as people sofa surfing or in unsuitable temporary accommodation.

Vulnerable

The guidance is significant because the Minister expects those at risk of rough sleeping to ordinarily be accepted as having a priority need during the pandemic.

In short, it is strongly suggested that the pandemic (and the actions required to be taken in response) constitutes a 'special reason' by which persons are likely to be more vulnerable than the ordinary homeless person (under under sections 70 and 71 of the Housing (Wales) Act 2014):

The Covid-19 pandemic presents a grave and exceptional risk to those persons who are homeless. Such persons may be unable to adhere to health advice, to self-isolate or socially distance, or to maintain the necessary hygiene requirements.

The position of a homeless person during the pandemic is contrasted with the statutory comparator of the 'ordinary' homeless person:

This is not a level of risk to which an 'ordinary homeless person' is exposed. [...] ​An ordinary homeless person may be street homeless but will not be at risk of contracting Covid-19 or suffering from Covid-19 symptoms, and trying to adhere to health advice.

And if that is not clear enough:

During this Covid-19 pandemic it appears almost inevitable that a person who is either street homeless or faced with street homelessness is less able than an ordinary homeless person to fend for himself or herself and would suffer more harm than an ordinary homeless person would suffer.

Furthermore, if a council decides that someone at risk of rough sleeping is not vulnerable, the Minister expects decision-makers to be in a position to show a 'documented and robust evidential basis':

A local authority which decides that a person who is either street homeless or faced with street homelessness (the latter would include, for example, a prison leaver with no accommodation available) during this Covid-19 pandemic is not vulnerable for the purpose of section 70 must have a documented and robust evidential basis for its determination which will withstand rigorous scrutiny and legal challenge.

Similar arguments will have been made to councils across England by those representing homeless persons. However this is a strong steer by the Welsh Government in the clearest terms.

Councils must have regard to this guidance when performing their homelessness functions (under section 98 of the 2014 Act). This includes, of course, when deciding whether persons are owed an accommodation duty (as opposed to merely benefitting from a discretionary power).

Failure to have proper regard to the guidance renders a decision on a homeless application unlawful. Reasons should also be provided for departing from such a clear recommendation. If an applicant at risk of rough sleeping receives an adverse priority need decision in Wales they should seek legal advice.

I can't pretend to know what's in the mind of ministers in Westminster. But it will be interesting in due course to see whether, and to what extent, they mirror the Welsh approach. Of course, supporting those who've been temporarily accommodated into settled housing has significant funding implications. The MHCLG announced the latest funding allocations for England on 28 April 2020.

Unable or unwilling to follow instructions

I haven't covered all of the coronavirus-related guidance on this blog. That would be a full time job in itself.

However, given that I'm posting today some other Welsh guidance is worth a mention. Also issued by the Welsh Government on 28 April 2020, it is for councils and organisations providing accommodation and support to people who are sleeping rough.

It deals with the issue of those who are unwilling or unable to self-isolate or follow lockdown instructions. Issues that will inevitably arise as practitioners help and support those with complex needs.

The guidance suggests practical measures need to be put in place to deal with situations where rough sleepers, or those in supported or temporary accommodation, are unwilling or unable to follow self isolation and lockdown instructions.

The non-statutory guidance also lists some of the practical steps which can be taken in response.

England

For social landlords in England the MHCLG issued non-statutory guidance on essential moves on 27 April 2020.

The guidance highlights the difference between essential and non-essential activities in the context of allocations, transfers and void maintenance.

Social landlords are advised to pause non-essential allocation and transfer activity.

By contrast, essential activity includes:

  • Supporting victims of domestic abuse and people fleeing violence.
  • Preventing severe overcrowding.
  • Facilitating move-on from temporary accommodation.
  • Facilitating hospital discharge, and
  • Supporting those living in unsafe accommodation, or those without settled accommodation, where there's a risk to health.

Landlords need to consider how to carry out essential moves in line with social distancing guidance. For example, landlords may move from choice-based lettings to direct allocations "where resources allow".

Landlords should:

  • Consider how best they can prioritise essential moves.
  • "Strongly discourage" tenants from exercising their right to mutual exchange.
  • Make every effort to communicate clearly with housing applicants, e.g. via websites and emails.

Councils are reminded that the statutory allocations guidance states:

Whatever general criteria housing authorities use to define the classes of persons who do not qualify for social housing, there may be exceptional circumstances where it is necessary to disapply these criteria in the case of individual applicants. [...] Authorities are encouraged to make explicit provision for dealing with exceptional cases within their qualification rules.
Para 3.5

Given the need to prioritise those at risk it would be prudent for housing managers to check (if they haven't already done so) that the provisions in their allocation scheme are adequate for present purposes, and are being utilised appropriately.

Domestic Abuse Bill

All this comes in a week when the long-delayed and Lazarus-like Domestic Abuse Bill passed it's second reading.

Probably of most interest to readers of this blog are the proposals for:

  • A statutory definition of domestic abuse, including economic abuse.
  • A legal duty on local authorities to assess the need for and commission refuge services.
  • Ensuring that certain victims of domestic abuse are entitled to a secure tenancy, where a council has exercised its discretion to grant flexible fixed term tenancies (Clause 56).
  • The possibility of an amendment, proposing to extend the categories of priority need in England, to include those becoming homeless because of domestic abuse (rather than survivors without children having to be deemed vulnerable to qualify for settled housing), and
  • The creation of new Domestic Abuse Protection Orders and Protection Notices.

The Bill's progress can be followed at www.parliament.uk. The House of Commons Library published a useful briefing paper prior to the second reading.


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