Homelessness and Social Housing Allocation Bill – Deep Dive 2

This second deep dive post into the Bill concerns the duty to “ask and act” in clauses 21-2 of the Bill.  [By the way, there is no particular method in my selection – more what people are talking to me about combined with my interest]

These clauses reflect a broader shift in the Bill, which underpinned the 2014 Act towards a wider prevention of homelessness agenda.  The Expert Group (at p 63) were clear that “wider organisations” should take a firm approach in homelessness prevention.  And, they “… would also wish to see these other public bodies and housing associations take direct action to prevent homelessness, where relevant, within the scope of their own competencies and responsibilities”.  The White Paper emphasised the importance of partnership across the public service in identifying and preventing homelessness early, and, to summarise a lengthy discussion, that homelessness is a public health issue.  That document ([220]) suggested that these clauses were required

to prevent more cases of homelessness, enable intervention at the earliest possible opportunity and to create a more holistic, person-centred and trauma-informed response across the Welsh public service for people who are homeless or at risk of experiencing homelessness. … Where necessary, we also propose the creation of multi-disciplinary teams around people who are homeless or threatened with homelessness, to address the complexity of their needs

It is to be combined with a “national learning and development campaign” and will need information/document sharing by these agencies ([222]).

The Explanatory Memorandum to the Bill recognised the need to “widen responsibility for identifying and preventing homelessness across the Welsh public service” on the basis that early identification of homelessness will assist with effective prevention.  And further:

The aim of the “ask and act” duty is to identify individuals at risk of homelessness as early as possible and to ensure local authorities can assist them earlier, standing them a greater likelihood of preventing homelessness from occurring. The joint emphasis on acting as well as asking about homelessness is in place to assure local housing authorities that their partner agencies will also do what they can when referring an individual at risk, further strengthening the service on offer to that individual and increasing the likelihood of homelessness prevention.

It should be recognised that the aim here is to go beyond the referral duty provisions which now exist after the Homelessness Reduction Act in England.

Clause 21 of the Bill introduces two new sections into the 2014 Act, ss 94A and 94B.  The latter sets out the public sector agencies incorporated.  The former sets out the substance of the duty.  The first part of s 94A mirrors the English duty.  It’s subsection (5) which is truly innovative, requiring the public authority also to

(a) provide the person with information about help available from other public authorities (or any other person) for people who are homeless or who may become homeless;

(b) consider whether there are any other steps it could reasonably take in the exercise of its functions to help the person secure or retain suitable accommodation and, if the authority considers there are any, it must take those steps;

(c) consider whether the opinion mentioned in subsection (1) affects the exercise of its functions in relation to the person regarding any matter.

The duty in (b) “does not affect any right of the specified public authority … to secure vacant possession of any accommodation” (cl 94A(6)).  This is quite radical,, but the mandatory duty is only to “consider” and not to “provide”.  This is rather a weak duty, a kind of general duty which will lack any enforcement teeth.  Assuming the authority has given that consideration, how could it be challenged unless the person has a legitimate expectation of something more or the consideration is Wednesbury unreasonable.  Satisfying the duty will, no doubt, involve the relevant public sector agency completing forms indicating their consideration (completion of that kind of contemporaneous information would help them if challenged) and, even if they don’t maintain proper information (likely, I suspect, in practice) they can simply provide that consideration subsequently and/or defend on the basis that the consideration would make no difference to what they did: see, for example, Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334, [25]; Luton CH Ltd v Durdana [2020] EWCA Civ 445.  I worry that the Bill creates expectations which, with the best will, may not be able to be satisfied and that lip service only will be paid to the duties.  I also wonder whether the evaluation of the English duty, which was positive, necessarily reflected the full picture, and certainly as it has developed in the post-Covid period.  My anecdotal feeling is that it has not had much impact (but just wanted to stress the anecdotal there).

The other point is that, if we are interested in partnership working, I’m not sure whether these clauses really provide the basis for those relationships as opposed to action by the individual public authority.  There is the existing co-operation duty in s 95, 2014 Act, which is amended by cl 32 of the Bill to refer to a wider range of bodies, including English housing and social services authorities (interesting).

The list of public authorities is curious both for which are there, and for which are not.  In terms of those that are, there are what we might expect like social services, RSLs, local health boards, various secure institutions, and, interestingly, the Secretary of State for Defence regarding serving military personnel.  As regards the latter, there is important evidence about the homelessness issues faced by former members of the armed forces.  There is also a really curious reference to housing action trusts.  My understanding was that HATs, which were set up under the Housing Act 1988, have long vanished from existence (and probably rightly so – they were a bit problematic); I’m sure I’ve got it wrong, and will have to edit this out, but it’s a bit weird.  The Charity Commission suggests that there was one in Pembrokeshire, but that has not reported since 2007.  Renting Homes (Wales) Act refers to them at s 243 as being set up under the 1988 Act.  So, that’s a bit nerdy.

The absences, though, are rather more interesting and I wonder whether they will survive scrutiny – for example, primary care services are specifically excluded (as alerted to me by somebody I was discussing this provision with the other day).  I completely understand that there might be a need to protect them from extra burdens, but who is more likely to come across a person with housing stress?  How does that track with the recognition that homelessness is a public health issue?