Homelessness and Social Housing Allocation Bill – Deep Dive 5

I had a lovely break, thank you for asking; back now and raring to go.  I was going to post a more academic thing about whether there is such a thing as “housing law” (of particular relevance to devolution), but that one will have to wait in part because I wanted to write about the clauses of the Bill relating to prevention, support and accommodation plans, as well as their review.  These provisions are contained in clause 4 of the Bill, and will be sections 63A and 63B of the Act (see Mark Prichard’s fantastically helpful agglomeration of the 2014 Act and the Bill).

In a way, these provisions are surely uncontentious.  Good local authority practice has already allowed for these, as was recommended in the Code of Guidance.  The provisions in the Bill follow on from and expand the duty found in England.  My sense is that this may have been an omission from the 2014 Act, which is now being rectified.  The Explanatory memorandum to the Bill explained (at [30]):

Several local housing authorities have adopted the use of such plans and evidence suggests these documents can enhance and improve a service user’s experience, where housing professionals have the capacity and capability to complete them properly and they align to an individualised assessment of a person’s needs.

The Expert Group noted the criticisms of these plans and wanted to ensure that “… these plans are genuinely used as person-centred documents which are useful to housing support teams and applicants” (p 56).  They were keen for statutory force to be given to these plans because that would position the applicant at the centre of the process.  The recommendations were accepted by the WG in the White Paper ([75] and following paras).  The idea of a “Prevention, Support and Accommodation Plan” – a PSAP – was ” a direct response to the feedback of local authorities who shared views during consultation that the name of the plan should reflect that it will go beyond housing and record a range of needs that will require a range of agencies to support” (Explanatory Memorandum, para 31).

There is lots of good – great – stuff in these clauses.  I love the consideration that is given to ensuring that authorities communicate with applicants in a way that is accessible to them, for example.  That is just outstanding and thoughtful – a small change but one that empirical researchers would regard as important.  However, my holiday has not dimmed my natural pessimism and concern although what follows is more a kind of “be careful what you wish for” homily.

Making these things statutory has not meant that they have become “person-centred documents” in England (that is an empirical statement, based on anecdotal evidence), where (of course) the culture is different.  But, as previously discussed, there is a culture change required here, even in Wales, and there needs to be a recognition of just how significant these documents can be.  The jurisprudence in England has been neatly summarised this week by Alan Bates, sitting as a Deputy High Court Judge, in R(AN) v Barking and Dagenham LBC [2025] EWHC 2265 (Admin), at [59], which is worth quoting in full because it demonstrates what is required, the range and depth of the cases which have been generated as a result of the duties in England, and the significance of these plans:

(a) The initial assessment duty under s.189A(2) HA 1996 entails a duty to take reasonable steps of inquiry so as to enable the housing authority to identify or assess housing needs (UO v London Borough of Redbridge [2023] EWHC 1355 (Admin), [2023] H.L.R. 39 (“UO No.1“) at [59] per Lane J (the headnote to the report in the Housing Law Reports incorrectly attributes the judgment to Ritchie J)).

(b) The HNA must address the needs that provide the “nuts and bolts” for any offer of accommodation. The assessment does not need to be an exhaustive list of housing needs but does need to identify the housing applicant’s key accommodation needs (R (ZK) v London Borough of Havering [2022] EWHC 1854 (Admin), [2022] H.L.R. 47, (“ZK“), per Dr Susie Alegre, sitting as a Deputy Judge of the High Court, at [17] and [42], citing R (S) v Waltham Forest LBC [2016] H.L.R. 41 per Cheema Grubb J at [92]).

(c) Whilst s.189A(2) HA 1996 sets out requirements for the issues an HNA must cover, it does not require a particular level of detail or format for addressing these points. The issues do not need to be covered in forensic detail (ZK at [44]).

(d) Describing an applicant’s “wishes” in relation to their housing situation is not an assessment of their housing needs. The HNA must make clear what a claimant needs as distinct from what would be “nice to have” (ZK at [42]; XY v London Borough of Haringey [2019] EWHC 2276 (Admin), (“XY“), per Clive Sheldon KC, sitting as a Deputy High Court Judge (as he then was), at [56] to [62]; R (YR) v London Borough of Lambeth [2022] EWHC 2813 (Admin), [2023] HLR 16, (“YR“), per Paul Bowen KC, sitting as a Deputy Judge of the High Court, at [83]).

(e) The HNA must be sufficiently reasoned to demonstrate that the authority has considered the statutory matters in s.189A(2) and ss.205-210 HA 1996, and s.11(2) CA 2004 (YR at [88(i)] to [88(iii)]; UO No.1 at [62]).

(f) The HNA and the PHP can both be set out within a single document, or as two separate documents, or by way of several documents that are to be read in conjunction with each other (XY at [54]; ZK at [39]; R (SK) v Windsor and Maidenhead RLBC [2024] EWHC 158 (Admin), [2024] H.L.R. 23, (“SK“), at [38]-[40]). Housing officers can be expected to read all of an applicant’s housing file in order to be fully acquainted with their needs.

(g) The review duty under s.189A(9) HA 1996 requires that the housing authority keep the HNA and PHP under review. This duty requires the authority to consider afresh the s.189A criteria by reference to the same statutory relevant factors in light of any new information (UO No.1 at [64]).

(h) The Court should adopt a commonsense approach when reviewing HNAs. The question is what a reasonable and sensible housing officer would understand an applicant’s needs to be, from reviewing the housing file (XY at [62]; ZK at [42]).

(i) Assessments under Part VII of the HA 1996 will be unlawful where they are Wednesbury unreasonable (UO No.1 at [56] and [74]).

It might be surmised that one of the reasons for the amount of cases these provisions have generated is precisely because of the computer formatting and pre-populating of these assessments and plans.  We have all read plans and assessments which bear little relation to the needs of the household; one reason for that is because of the difficulties faced by homelessness officers with their caseloads (this is not a criticism of them – as I have said before, housing officers don’t go into the job to say “computer says no”).

It is interesting also to think about how the Welsh provisions are going to interact with that jurisprudence.  For example, consider the point in (d) above about the applicant’s wishes.  Cl 63A(6) will require the authority to “seek to identify the outcome the applicant wishes to achieve from the authority’s help” and have regard to how their actions could contribute to achieving that outcome.  This was one of the issues in the AN case – the applicant’s wishes were stated as background in relation to the particular school at which her child was enrolled, but the Deputy Judge said that was not “an assessment” of the housing needs of the household, particularly for in-borough accommodation:

1. The highest the Plan goes is, as Mr Jackson put it, implicitly indicating the desirability of finding in-borough accommodation for the Claimant. I agree with Mr Jackson that this is not good enough: the Defendant needs to “nail its colours to the mast” and explain what it has assessed the Claimant and EB’s needs as being. Is there a need for accommodation to be provided within the borough or not? How far away from EB’s school can a property be located without being unsuitable, and why?

It is relevant to ask whether the Bill’s provisions on the PSAP will go this far or further as they relate to the applicant’s wishes?  I think probably not.  There is a duty only to “have regard” to how their actions could contribute to meeting those wishes.  In one sense, that is not unreasonable – applicants may have unrealistic wishes/expectations which cannot be met; but, then, is there much point to this provision beyond the symbolic?  And, given that being person-centred is the ideological key to (and commitment in) the Bill, should we not ask for more than a “have regard” duty?

The other key difference from England is that the PSAP needs to record “any other steps of which it is aware that another public authority has agreed to take in relation to the applicant” (cl 63A(11)).  That does not appear to be a duty to inquire with other organisations, and it will be important to think carefully about whether awareness will require inquiry – for example, if the authority is aware that a child has learning issues, does that require the authority to make inquiries of the school or GP in order to make themselves aware of any wider obligations?  I am interested in this point in part because I am involved in a project seeking to provide guidance to local authorities in England in relation to the temporary accommodation needs of neurodivergent children.  The “awareness” duty feels like it does not do justice to the concept of the PSAP and potentially avoidable by what is sometimes called “Nelsonian ignorance” (ie having a “blind eye” approach).  There is a line here between the kind of culture change which the WG want to see, which needs to come from below as part of an implementation strategy, and the kind of legislative bureaucratic direction which might be needed to ensure that culture change takes root.

The other difference, which I think is sensible, is that the PSAP does not need to be one document but, “may consist of one document or a collection of documents, any of which may be revised in accordance with this section”.  That seems to have been the outcome of the litigation in England. I would caution, though, that this kind of provision may be bureaucracy friendly, but not particularly applicant centred.  An applicant may have to navigate a range of documents, not all of which will be easy to decipher, and consideration will need to be given to the accessibility duty.  After all, it is not hard to put a range of documents into one (even my IT skills enable me to do that).

Finally, unlike in England, the PSAP can be the subject of a statutory review under s. 85(a)(ad) (see cl 5(3)(a) of the Bill), and, rather than the strict time limit for a review (21 days), the request “may be made at any time during which the authority is required to maintain the plan”.  This avoids the need for the kind of judicial review proceedings which we can see occurring in England, taking up enormous resources, and is to be welcomed, I think (but subject to the concerns which I expressed here about the lack of challenges to decision-making in Wales).

Anyway, lots to think about here.

I should always say – but take it for granted – that, if you get here (or scan or just start), thank you for reading.  Comments are always welcome.