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COVID-19, homelessness and rough sleepers: how to help persons ineligible for support

Tara O'Leary looks at what legal powers local authorities will have to deal with rough sleepers once lockdown ends.

At the outset of the COVID-19 lockdown, the Government called on local authorities to take immediate steps to offer 'safe' accommodation to all rough sleepers and persons staying in hostels and shelters in England. Referred to as the 'Everyone In' initiative, £3.2 million was initially allocated in emergency funds and over 15,000 individuals were urgently accommodated in hotel rooms, B&Bs, studios and bedsits.

This included an estimated 90% of rough sleepers already known to social services, plus many other persons deemed at high risk of rough sleeping who were housed pre-emptively. This is probably the single largest rough sleeping initiative ever carried out in the UK. By any measure, it should be recognised as a remarkable achievement by local authorities, mayors' offices and charities.

On 24 June 2020, the Government announced a further allocation of £105 million to ensure that all these individuals remain housed. In particular, funding will be used to transition the homeless into alternative, longer-term accommodation following the re-opening of hotels on 4 July.

These efforts have not been achieved via legislative reform: existing statutory powers were used, principally Pt VII of the Housing Act 1996. In particular, no changes were made in respect of the statute or Homelessness Code of Guidance (the Code) when it came to the rules which exclude persons deemed 'ineligible' from many forms of support under the 1996 Act. Rather, on 28 May 2020 the Housing Minister confirmed there are no plans to make any such changes.

'Eligibility' for homelessness assistance depends on a person's immigration status: s.185 of the 1996 Act. Ineligible persons include illegal immigrants and overstayers, but also large numbers of people who have the right to live and work in the UK yet are not entitled to access social welfare – even though many have lost their livelihoods during the pandemic. These households are sometimes known as 'No Recourse to Public Funds' (NRPF).

Local housing authorities (LHAs) are therefore caught between two stools: faced with calls to accommodate as many people as possible and prevent them from returning to the streets, they have limited statutory tools to assist large numbers of people subject to blanket exclusion from the social safety net.

So what can be done to assist ineligible and NRPF homeless persons?

Established powers and duties

In my view there are seven duties and powers which are clearly relevant, albeit they vary widely in the quality and extent of support provided:

1. There is a minimum duty to provide information and advice about homelessness to all homeless persons, regardless of eligibility: s.179 of the 1996 Act. The Code states this can include information about "how to obtain accommodation in the private rented sector", or accessing local charitable or faith groups: paras. 3.2 and 3.7. In the unusual circumstances of the pandemic, LHAs might interpret these powers broadly so as to include placing homeless persons with landlords and accommodation providers, particularly those who are returning to work and will be able to pay rent.

2. LHAs have a duty to provide s.188 interim accommodation to any homeless person who approaches them if there is 'reason to believe' they may be eligible, plus homeless and in priority need. The threshold for believing a person 'may' be eligible is low: see the Code para. 15.5 and R (Kelly) v Birmingham CC [2009] EWHC 3240 (Admin) [7(iv)].

For example, it could be met when a person has a pending immigration appeal. LHAs must then continue to accommodate the person pending investigation into their eligibility status. There is no time limit within which a s.184 investigation must be concluded, and the decision on eligibility could be delayed in appropriate cases.

3. LHAs have a power (not a duty) to continue accommodating homeless persons pending s.202 review, or s.204 appeal, against a decision on eligibility: ss. 188(3), 202(1)(a), 204(4). COVID-19 will be relevant to the exercise of that discretion and should be carefully considered within any Mohammed decision. Note however that certain categories of immigrants (though not all ineligible persons) are excluded from this accommodation: s.54 and Sch. 3 of the Nationality, Immigration and Asylum Act 2003, and the Code para. 7.21.

4. Upon terminating interim accommodation under ss.188(1), 188(3) or 204(4), the Code (para. 15.1) requires LHAs to give notice periods which "take account of the needs of the applicant and the time required for them to access assistance". LHAs may choose to extend their usual notice periods due to the unusual difficulties currently experienced by many NRPF and ineligible persons in accessing alternative housing, support or employment.

5. LHAs may owe a limited 'main' homelessness duty in so-called 'restricted cases': ss.193(3B) and (7AD). These involve an applicant who is eligible approaching the LHA for assistance, where their priority need derives solely from another member of their household who is ineligible. For example, an eligible applicant who can reasonably be expected to reside with a pregnant ineligible woman or a vulnerable but ineligible relative. LHAs may only discharge their main housing duty in 'restricted cases' by way of a private rented sector offer.

6. Local authority children's services may have a duty under s.17 of the Children Act 1989 to provide accommodation to NRPF households which include children assessed as being 'in need'. This is a vital safety net to protect children at risk of street homelessness and destitution: see e.g. R (A) v Lambeth LBC [2003] UKHL 57; Sanneh v SoSWP [2015] EWCA Civ 49; R (AC) v Lewisham LBC [2017] EWHC 1796 (Admin). However this will not usually assist homeless persons unless they are the children's primary carer; moreover the decision as to the children's needs falls entirely outside the remit of homelessness teams.

7. Local authority adult social services have a theoretical discretion to provide accommodation to adults assessed by them as being 'in need of care and support' under the Care Act 2014, particularly if the adult's lack of accommodation would otherwise prevent them from effectively delivering those services. However the law on this issue remains unsettled (see e.g. R (SG) v Haringey LBC [2017] EWCA Civ 322), and there is authority to the effect that merely needing accommodation (only) is not a 'need for care and support' so as to trigger the 2014 Act: R (GS) v Camden LBC [2016] EWHC 1762 (Admin); R (AR) v Hammersmith & Fulham LBC [2018] EWHC 3453 (Admin). In any event, assessment of care needs also falls outside the remit of homelessness teams, and in practice social services very rarely take on housing functions.

What about general powers of competence?
Many of the duties and powers set out above are limited in scope and time, and will not justify provision of accommodation to ineligible / NRPF households on a long-term basis. Therefore it seems some LHAs have recently considered if they are permitted to use their general powers of competence under s.1 of the Localism Act 2011.

That provision empowers local authorities to do anything that any individual may generally do, especially if for the benefit of persons present within their area. However s.2 of the 2011 Act limits the use of this power to the extent that local authorities may not do anything that is prohibited by another statute.

The High Court has twice ruled that LHAs have neither a power nor a duty to use s.1 to accommodate ineligible / NRPF homeless persons, on the basis that s.185 of the 1996 Act (as well as s.21(1A) of the National Assistance Act 1948) expressly precludes them from doing so: R (MK) v Barking & Dagenham [2013] EWHC 3486 and R (AR) v Hammersmith & Fulham LBC, cited above.

Would those decisions stand scrutiny in the unique circumstances of the pandemic? The facts of those cases are very different to those pertaining under lockdown. It is worth noting they are both first instance decisions; the Court of Appeal has yet to consider the subject. That is important because there is some limited authority – GS v Camden LBC, cited above – which supports the use of s.1.

The question also arises as to whether s.1 of the 2011 Act could be used to fund subsistence costs such as a deposit, or rent for a limited period, if not to directly fund the accommodation itself.

A safety valve is provided by Sch. 3 of the Nationality, Immigration and Asylum Act 2002, which provides that local authorities may have a duty to provide assistance to the extent necessary to avoid breaching the homeless person's human rights. The threshold for these cases has traditionally been set extremely high, requiring destitution and suffering so severe that it would engage Art. 3 ECHR. The facts of AR provide a good example of the sorts of cases which involved very vulnerable defendants yet did not make this grade. It remains to be seen whether and to what extent the courts would take a different view under COVID-19.

Furthermore any local authorities who have, in fact, relied upon their general powers of competence in housing ineligible persons since March 2020 will need to very carefully consider how they can exercise their discretion to stop doing so. If they assessed that the person was in need of accommodation or support in March 2020, they will need to show cogent reasons why that person is now no longer deserving of assistance. Those decisions are amenable to judicial review.

Putting all of this together, it appears this area of law may be ripe for challenge and further development in the age of COVID-19.

Tara O'Leary is a member of Cornerstone Barristers' public law and housing teams, with particular expertise in homelessness, mental capacity, community care, and equality and discrimination.

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