Homelessness and Social Housing Allocation Bill – Deep Dive 3

So far in these posts, I have focused mostly on the homelessness stuff in the Bill.  Today’s post straddles both parts and deals with clauses 10 and 36.  Or, more prosaically, it deals with intentional homelessness.

Lots of academics have written about intentional homelessness and its baleful effects.  It was not in the original Bill in 1976-7 but introduced by amendment to deal with what was regarded as the problem of people making themselves homeless in order to take advantage of the new Act and “jump the housing queue” (the so-called “perverse incentive”).  Even in Parliament, it was described (I think by Jack Straw) as “gobbledegook” and Courts have struggled to interpret it.  In the earliest cases, they had to interpret it by reading different tenses in to the provision.  Lord Denning described people found to be intentionally homeless as having “the mark of Cain” (in true-to-form Denning hyperbole).  Most recently, the Supreme Court grappled with it in Haile v Waltham Forest LBC.  I have read the judgment in Haile numerous times, and I still can’t quite work out how they came to the outcome that they did.  I guess I am making two points: it’s a really hard provision to implement; and it’s a really hard provision to interpret.  Those two things add up to resource intensity.  As a result, the provision was not used much in Wales, but it was used, and the Expert Group noted (at p 22):

Stakeholders and experts by experience expressed that the intentionality test is not trauma-informed and that it encourages judgement around who is or is not deserving of support. Many people drew upon experiences which align with the extensive body of research that shows people found to be ‘intentionally homeless’ usually have clear unmet support needs and are often the most excluded from services and support.

Not surprisingly, they recommended that the provision should be removed.  However, they were also concerned that “some individuals may ‘actively worsen’ their situation or mislead the authority in order to gain priority access to social housing” and so they recommended that people who “deliberately manipulate” the system should not be given reasonable preference for an allocation of social housing.  Similarly, the White Paper recognised that the cultural shift to prevention and relief of homelessness has meant that intentional homelessness has become of far less significance in Wales, although there was evidence of significant variation across Wales in its use (144-5).

Clauses 10 and 36 effectively do what the Expert Panel recommend.  Clause 10 omits intentional homelessness as a key concept.  Given the above, one might say that, although slightly controversial, it is unobjectionable.  Indeed, frankly, along with (no doubt) most academics in this field and lawyers, I welcome it.

Clause 36, however, requires more thought.  It introduces new subsections in to the allocation scheme provision of the Housing Act 1996: s 167.  This is the provision which sets out what authorities have to do in their allocation schemes – they have to give reasonable preference to certain groups; they can give additional preference to one of the groups; and they give the Cabinet secretary various regulation making powers (see Deep Dive 1 for discussion).

The provision is amended so that where the authority “is satisfied that the person is trying to manipulate the housing system”, the person loses any preference that they might have for an allocation of social housing.  A new section 167A sets out what “trying to manipulate the housing system” means – and, lo and behold, it is pretty much what intentionality was for homelessness:

… the person deliberately did or failed to do something in consequence of which the person ceases to occupy accommodation that was available for the person’s occupation and which it would have been reasonable for the person to continue to occupy

The same rider as existed previously about acts or omissions in good faith not being deliberate is added – this is one of the hardest parts of the definition, and has taken on a convoluted and more abstract sense: see, for example, Ugiagbe v Southwark LBC [2009] EWCA Civ 31.

It adds as a conjunctive (ie that the person must also fall within) either of the following – that they:

(i) intended, by doing or failing to do that thing, to enable the person to become entitled to help under Chapter 2 of Part 2 of the Housing (Wales) Act 2014 (“the 2014 Act”) or to improve the person’s chances of being allocated accommodation under this Part, or (ii) before doing or failing to do that thing, received information, advice or other support provided or otherwise secured by a public authority exercising functions in relation to the person that was adequate for the purpose of enabling the person to continue occupying the accommodation.

My lawyer/advocate hat’s senses are tingling.  I mean, why not add really problematic and difficult provisions to something that is already impossible to decipher.  Why not cause litigation by creating statutory provisions like this?  Why not re-introduce intentional homelessness through the back door and add interpretive complexity to it?  Why not headline that you are getting rid of intentionality because of the cultural shift to prevention and relief, and re-introduce it elsewhere (without necessarily highlighting that)?  It should be remembered, in any event, that these provisions engage various procedural protections which will cross over here.

Let me give some examples of the complexity:

• A approaches the authority.  The authority tells A that the notice served by their landlord was incorrect and they can stay where they are.  A’s landlord negotiates with A as they want the property back.  A leaves, perhaps with a court order.
• B’s landlord commences possession proceedings when there are significant disrepair issues in the property.  Say, there are also rent arrears.  B agrees to give up possession of the property and the landlord agrees to write off the rent arrears.  Neither side admits anything.
• C is the subject of harassment from a former work colleague.  A public authority tells her that she can get an injunction against her former colleague so she does not have to leave her home.  She gives up her home in any event because she has little faith in the law.

In my experience (as an advocate), all of these are relatively common situations.  The first two are common sense agreements that resolve what would otherwise be expensive and intractable proceedings.  All could fall within this provision.  Equally, say a public authority gave advice to an occupier within what on this blog I have called Coastal 1 that the occupier does not need to pay rent.  That would be (imho) not unreasonable given the findings of the Divisional Court.  Say the Court of Appeal disagree or the proceedings in Coastal 2 go against the occupier, but the occupier now can’t pay the backlog on the rent.  Could they fall within this provision if evicted?  Potentially, yes, but that would be incredibly harsh (as opposed to irrational).

s.77(4) of the 2014 Act provided for intentionality findings based on collusive arrangements, which could have been moved over here, and might have been easier to apply.  It also has a proviso that “there is no other good reason why the person is homeless”.

I understand completely the policy motive behind this kind of provision.  There is concern that some people who are in line for an allocation of social housing might not merit it because of their past behaviour in seeking to take advantage of it.  In a paper I wrote ages ago, which drew on homeless people interviews, I offered a critique of the common perception of applicants for homelessness assistance held by government officials that they were “knowledgeable agents conniving to screw the system (which they understand well) by dishonestly providing information which will compel the housing authority to offer housing (unless the dishonesty can be exposed)”.  That is the impression given by this provision, though, and it kind of runs completely counter to the kind of culture change which the WG is seeking to bring about in the service.

But, if, as the Expert Panel found, people in this situation “usually have clear unmet support needs and are often the most excluded from services and support”, why effectively exclude them from an allocation?  That makes no sense to me.  And, while members of the Expert Panel are people I absolutely respect and admire and generally think are the outstanding scholars/practitioners of their generation, I’m afraid that I disagree with their policy recommendation here as it is, effectively, contradictory.  This is all about deservingness.

And, it’s wrong – plain and simple – to sort people in this way.  We do and don’t do things for all sorts of different reasons, but this provision has always been a blunt weapon which enables a decision-maker to seize on one particular reason among many.