Legal: How intentional homelessness is changing in Wales

 

A recent Supreme Court case put the intentional homelessness test back in the spotlight, raising questions about how fair the test is and whether, for Wales, it should have any place at all in our homelessness system.

The case concerned a woman known as Ms Samuels and her four children who, having been evicted, approached Birmingham Council for assistance. The family was found to be intentionally homeless, as the reason for the eviction was rent arrears.

The arrears were due to a shortfall in her housing benefit of £151 per month. Ms Samuels and her children were wholly dependent on benefits. She argued that she couldn’t afford the shortfall.

But the local authority decided that she should be covering the shortfall with her non-housing benefit income. At Court of Appeal the judge agreed with the local authority. Ms Samuels appealed that decision and the matter eventually came to the Supreme Court.

Britain’s highest court found that the council’s approach had been unlawful. Subsistence benefits are not designed to allow a surplus to be spent on rent or other expenses. As he delivered the judgment Lord Carnwath said, ‘I find it hard to see on what basis the finding of intentional homelessness could be properly upheld.’

Although this is an English case, it is applicable in Wales. This decision is significant because not only did the Supreme Court assert that expenses at or below subsistence benefit income level are reasonable, it also ensures a sharper focus on the individual and the needs of families and children.

Local authorities will need to ensure that they apply the principles in this case. Housing advisers will need to consider any decisions carefully to ensure the correct principles have been applied. A failure to do so could lead to further challenge.

In Wales, the Housing (Wales) Act has championed the person-centred approach and put prevention at the heart of the legislation. The guidance to the Act says local authorities should ensure that households can afford the housing costs without being deprived of basic essentials such as food and utilities.

While this is welcome, further steps need to be taken to consolidate this approach. The Samuels case demonstrates that finding a family intentionally homeless in these circumstances is an archaic approach.

In 2014 the Welsh Government set a target of 2019 to end intentional homelessness for households with dependent children. The precise date for this target hasn’t yet been set.

Official figures show that intentionality is being used less and less often: in fact, last year only three authorities were responsible for the majority of decisions, with the rest using it fairly rarely.

Even so, we know from our casework that intentionality is still being used against homeless households who should have a priority need for accommodation.

We’re looking forward to the Welsh Government setting a firm date for ending intentionality for households with children and, one day, ending it completely.

A final important point on the Samuels case: it took a lengthy battle of three years for Ms Samuels to get her case to the Supreme Court. This will not be unfamiliar to anyone undertaking legal aid work.

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) it has become increasingly difficult to obtain funding. This has in turn led to a massive reduction in firms who specialise in housing law.

Even if an individual can access advice, it’s an uphill struggle to obtain funding as there is a constant questioning and challenging by the Legal Aid Agency in what appears to be any attempt to defeat an application for funding.

This probably explains why legal aid applications have fallen by 34% since 2013, coupled of course by advice deserts. There is no point in having the right to challenge adverse decisions if a person cannot also secure adequate funding and access specialist advice to enable them to navigate the complex legal system.

A big step towards long-term security for Wales’ half a million private tenants

 

By Jennie Bibbings

Last week the Welsh Government announced a proposal that will give private tenants a minimum of one year’s protection from a no-fault eviction.

Speaking at the Shelter Cymru People and Homes conference, the Minister for Housing and Local Government, Julie James AM, said that the Government will consult on whether tenants should be given six months’ notice when they are going to be evicted using the no-fault ground, compared to the current two months’ notice.

By also banning the use of such evictions in the first six months of a tenancy, this will effectively give tenants at least a year knowing that they can’t be evicted without a good reason.

Most tenants support a ban because of the inherent unfairness of a law which allows landlords to evict without needing to show that the tenant has done anything wrong.

A survey found that nearly three-quarters of private tenants in Wales want to see the introduction of laws similar to Scotland’s, where tenancies are open-ended and no-fault evictions are banned.

The Welsh Government’s announcement follows the pledge in April by the First Minister to end no-fault evictions during this Assembly term. While this new proposal will not end no-fault evictions completely, it will be a strong deterrent for landlords. Instead many would probably use fault-based grounds, meaning they would need to provide evidence to the court to show why the eviction is necessary.

This is the art of the possible,’ said the Housing Minister at the conference. ‘Don’t let the perfect get in the way of the good things that we know will make a big difference.’

At Shelter Cymru we’ve been campaigning on this issue for several years, with nearly 2,000 people signing a petition.

We’ve shared our disappointment with the Welsh Government that there won’t yet be a complete ban. However, increasing the notice period is still a big step in the right direction.

We do understand that there are practical difficulties in amending the Welsh tenancy legislation during this term. We don’t want to hold up implementation of the Renting Homes (Wales) Act 2016 any longer than necessary.

We will still be campaigning for an eventual ban. However, in the meantime this proposal will have many positive effects.

For example, it is going to effectively end the practice of revenge evictions. Even though the Renting Homes Act does offer some protection already, this additional step will ensure that no landlord will resort to no-fault grounds as a quick fix to dodge their legal responsibilities – something that happens all the time in our casework.

It’s also going to mean that very few housing associations will use no-fault grounds to evict tenants on starter tenancies – a practice that is really unfair, since nobody should ever be evicted from social housing unless there are reasons good enough to convince a judge.

As with everything though, there could also be negative consequences for some. Local authority homelessness services are going to need firm guidance on how to work with households threatened with homelessness because of a no-fault eviction.

What we do not want to see is people told to come back in six months. It would be totally unacceptable to put people through that prolonged stress and uncertainty.

Homelessness prevention work must begin as soon as a notice is served. Having a longer window for interventions could give much more scope for innovative prevention work: landlord mediation, repayment plans, support referrals, and if necessary extra time to find alternative suitable accommodation.

Soon Shelter Cymru will be putting resources online to help as many people as possible to take part in the Welsh Government’s consultation. Landlords will be making their voices heard loud and clear – we must ensure that tenants are equally heard.