Newcastle-under-Lyme Borough Council

Housing – ending the interim accommodation duty – refusal to engage

Findings

Ms B is a woman with long term mental health problems; she complained to the LGSCO about the Council’s handling of her request for housing help after she was made homeless.

The LGSCO upheld one of her complaints, namely that the Council had wrongly cancelled her interim accommodation on the basis she had missed a housing options appointment, even though she went to the Council’s offices on the day to explain she was too unwell to attend the appointment.

The Council believed it could have a policy of ending its interim accommodation duty on the basis of failure to attend appointment, when the legal framework actually says that the power to end the duty arises on refusal of suitable accommodation during the Relief duty stage. It had provided verbal warnings of the consequences but not put the warning in writing. The LGSCO regarded this as fault.

Ultimately the Council decided her homelessness application on 5 February 2019 (when the Council provided accommodation using different powers).

The facts

The circumstances leading to the homelessness application were that after an alleged incident of domestic abuse on 19th November, a fire in the flat in which she was living made the flat uninhabitable, and Ms B then presented at the Council’s offices.

The Council arranged an appointment for 20 November. Ms B attended the appointment and was interviewed by a Council officer. The Council discussed a Personalised Housing Plan with Ms B and accepted it owed Ms B the Relief duty.

The Council placed Ms B in interim accommodation at a hotel that day. The Council says the accommodation was only due to be provided for around one week to allow Ms B to attend an interview at the charity that provides supported housing for people with mental health problems.

The Council’s position was that it created and sent Ms B a Personalised Housing Plan on 26 November, but its computer system overwrote the initial version of the PHB as events moved on.

The charity told the Council that Ms B was not engaging and had failed to attend her appointment or four subsequent interviews for supported housing.

The Council arranged an appointment with Ms B for 27 November to extend the accommodation booking at the hotel. Ms B did not attend the appointment so the Council did not re-book the hotel accommodation which ended on 28 November.

Ms B said she did not attend the appointment on 27 November because she had run away from a court hearing because she was scared. The Council’s notes say Ms B refused to tell the officer where she had been staying, before later telling an officer at the Council offices that she had been staying with friends and on the streets. This was a break in accommodation provision.

The Council arranged a final appointment for Ms B with the charity for 7 December. The Council’s notes say that the officer warned Ms B verbally, that if she did not attend the appointment the duty to accommodate would end and the Council would not provide any further emergency accommodation.

The Council then booked Ms B into hotel accommodation again from 3 December.

On 4 December, as if starting afresh, the Council sent a letter to Ms B saying it owed her the Relief duty. This was because the Council was satisfied Ms B was eligible for help and homeless.

The Council told Ms B it had a duty to take reasonable steps to secure that suitable accommodation became available for her occupation.

On 7 December Ms B attended the appointment with the charity and was booked into the hotel accommodation until 10 December.

On 10 December Ms B had an appointment at the Council’s housing options office about the interim accommodation booking which had now ended.

Ms B said that what happened was that she went to the office that morning and told them she was unwell and had to attend an emergency medical appointment. The Council officer asked her to return at afterwards but she was not able to attend because of her medical appointment.

The Council’s written record of the appointment said:

‘[Ms B] came into the office at 12:00 with her partner, advised needed to come back at 2:00pm. She told me that she had a doctor’s appointment and would come straight after. [Ms B] did not come back. Booking therefore not extended.’

On 11 December the Council purported to end its interim accommodation duty to Ms B. The Council says it told Ms B this and wrote a letter for Ms B to collect. The Council said this was because Ms B had refused a suitable offer of accommodation, but none had been offered because of the failure to attend the appointment.

The Council said on two occasions Ms B had failed to attend an appointment to extend her stay at interim accommodation. Ms B says during this period she slept on the streets and in a tent in her mother’s garden.

On 14 December Ms B’s representative phoned the Council to challenge the decision to stop providing Ms B with interim accommodation. Ms B’s representative says the officer was unwilling to negotiate and said it is ‘Council policy’ to remove interim accommodation if appointments are missed.

Having believed that it had ended the interim accommodation duty, the Officer said a referral to a hostel for vulnerable adults in Birmingham was the only help that could be offered.

Ms B says the hostel in Birmingham would not have been suitable in any event. She has monthly supervised contact with her children who remain in care, and Ms B says she could not maintain this if staying in Birmingham. Also, Ms B says this would have separated her from her mother, community mental health worker and probation staff she is familiar with.

The Homelessness code of guidance says a council may end the interim accommodation duty if an applicant rejects an offer of accommodation. So, the Council would have been entitled to end the interim accommodation duty if Ms B had refused the Council’s offers of accommodation.

What the LGSCO decided

The LGSCO found however, that Ms B did not refuse offers from the Council.

Rather, the Council’s decision was because it considered Ms B did not attend two appointments to extend accommodation bookings, without good reason.

Ms B accepts she missed the first appointment, but she does not accept she missed the second appointment (on 10 December 2018).

The LGSCO accepted that the Council’s written record of what happened supports the Council’s account but said this:

However, even if Miss B missed both appointments, I do not consider the Council was entitled to end the interim accommodation duty on this basis.

I recognise the Council considered Ms B was not engaging with its service or the charity it had referred her to.

But, the Council should have done more – for example by making an offer of interim accommodation in writing – before deciding to end the duty.

The Council’s record of an earlier verbal warning before the 27 November appointment says the warning was made to an officer helping Ms B.

Also, the note says the Council warned that the hotel accommodation would not be extended.

This is not the same as saying the Council would also end its duty to provide interim accommodation.This is why it was so important for the Council to clearly tell Ms B in writing about the consequences of not attending appointments. Also, the Council could have contacted Ms B after the second missed appointment to find out why she did not attend before deciding to end the duty. The Council was aware Ms B had to attend a medical appointment that day and there may have been good reasons for her not coming back to the Council office.The Council did not give Ms B the opportunity to explain why she did not attend before the Council ended the interim accommodation duty.”

The Council was also aware of Ms B’s mental health problems and some difficult personal circumstances during this period. The Council’s decision to end the interim accommodation duty was therefore regarded by the LGSCO as affected by fault, a decision which caused significant injustice for Ms B.

The LGSCO recommended an award of £300 for the distress caused and the Council agreed some learning points from the case.

The law

  • Councils must take reasonable steps to secure accommodation for any eligible homeless person. This is called the Relief duty. The council is required to take reasonable steps to help the applicant secure suitable accommodation with a reasonable prospect that it will be available for their occupation for at least six months. 
  • After the relief duty has ended, a council must then secure interim accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need – unless an applicant has turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the Relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate.
  • Careful consideration should be given to applicants with a mental illness or learning disability who may have a particular need to remain in a specific area, for example to maintain links with health service professionals and/or a reliance on existing informal support networks and community links. Such applicants may be less able than others to adapt to any disruption caused by being placed in accommodation in another district.
  • Where a local authority feels that an applicant is refusing to cooperate and that the refusal is ‘deliberate and unreasonable’, it can follow a specific procedure for notifying the applicant.
  • The Code suggests that a local authority follows a four stage determination to decide whether a failure to take a step was deliberate and unreasonable: para 14.53
  • The housing authority should be satisfied of the following before ending the prevention or relief duty under sections 193B and 193C:
    • the steps recorded in the applicant’s personalised housing plan are reasonable in the context of the applicant’s particular circumstances and needs;
    • the applicant understands what is required of them in order to fulfil the reasonable steps, and is therefore in a position to make a deliberate refusal;
    • the applicant is not refusing to co-operate as a result of a mental illness or other health need, for which they are not being provided with support, or because of a difficulty in communicating;
    • the applicant’s refusal to co-operate with any step was deliberate and unreasonable in the context of their particular circumstances and needs. For example, if they prioritised attending a Jobcentre or medical appointment, or fulfilling a caring responsibility, above viewing a property, this is unlikely to constitute a deliberate and unreasonable refusal to cooperate. However, if the applicant persistently failed to attend property viewings or appointments without good reason; or they actively refused to engage with activity required to help them secure accommodation, then this might be considered deliberate and unreasonable refusal to cooperate.
  • The Code requires that local authorities take into account any particular difficulties the applicant has in managing communication. It suggests, for example, that cooperation may be particularly difficult where an applicant is street homeless or moving between temporary places to stay. The problems may be around, for example, an applicant having a learning disability or more practical issues such as being required to contact landlords and not having telephone access. In circumstances such as these, it is less likely that failing to cooperate would be counted as deliberate or unreasonable.
  • Obviously, where a person’s condition means that they lack capacity in relation to understanding, or to retaining information that they have been given, it would be inappropriate to regard them as deliberately or unreasonably refusing to co-operate. A substance abuse problem may well have started off as a capacitated choice but it does not mean that its continuation remains something over which the individual has full control or the ability to overcome, unaided.
  • Where an authority considers that an applicant has deliberately and unreasonably refused to cooperate it must serve a ‘relevant warning’ on the applicant. A relevant warning is a notice which:
  • is served after the applicant deliberately and unreasonably refuses to take a step they have agreed to, or which has been required of the applicant
  • warns the applicant that if s/he does not take such a step after receiving the notice the authority will give a further notice
  • explains the consequences of such a notice.
  • The warning should be given in writing, and if it is not received by the applicant must be made available at the local authority’s office for collection ‘for a reasonable period’. There is no statutory right to review a decision to serve a ‘relevant warning’. However, applicants can request a review of the decision to serve the notice ending the prevention or relief duty within 21 days of notification.

CASCAIDr does not provide legal advice about Housing and Homelessness law unrelated to social care issues, but where these areas of law intersect, its Trading Company may be able to assist, but outside of our free scope model for advice.

The full transcript of this report can be found here: https://www.lgo.org.uk/decisions/housing/homelessness/18-016-156

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