By Katie White and Alison Jones
Our new study on homelessness reviews and appeals is timely given that the Part 2 of the Housing (Wales) Act 2014 which implemented the new legislative framework has been in force for five years.
The Housing (Wales) Act 2014, with its focus on prevention, has been widely welcomed in Wales but despite attracting wider review rights, have we seen an overwhelming increase in reviews, appeals and associated Judicial Review challenges?
Not according to the findings in our report. In fact there has been no perceptible change in figures in comparison with the Housing Act 1996.
In some authorities there is a high percentage of decisions being overturned at review (50% in Cardiff and 75% in Neath Port Talbot). Whilst this shows that the decision making process is not always as robust as it should be at the initial presentation stage, the success at review stage is promising, indicating that the review is a rigorous re-examination of the case and that the Reviewing Officer is objective. Clearly, in these areas the review procedure is working well and justly with the applicant having a real chance of an unlawful decision being overturned.
It is slightly concerning that some authorities report very low figures for the number of review requested: this is of particular concern in large local authority areas where you would expect a higher number of reviews.
We would welcome further investigation into why this is the case. Is it because individuals are not seeking advice as to whether the decision is capable of review; is there a lack of being able to source timely legal advice; or are the reviews taking place, but the request and the decision on review not being recorded accurately?
It would be beneficial for there to be a consistent way of recording reviews across all local authorities in Wales. The recommendation that Reviewing Officers be shared across authorities is interesting as it could bring a consistency of approach, achieving more specialism in this area and also aiding in analysing and recording the information about reviews centrally.
Perhaps less surprising is the fact that despite the new legislation, the main subject of reviews remains the suitability of accommodation. Due to the scarcity of social housing and the lack of affordability in the private rented sector, often an authority will find it difficult to source accommodation – particularly for larger families or families who have a particular need to be in a particular area.
Reviews on suitability are notoriously difficult and whilst the Reviewing Officer will consider a number of factors relating to the applicant’s circumstances, including location, size and affordability they also have regard to the general housing circumstances in their area and their resources. There is frequently a disparity between an applicant’s idea of suitable accommodation and that of the authority, but not a decision that can be challenged in the courts.
The report highlights the extremely low number of appeals and Judicial Reviews issued in Wales. In practice much work is done at the pre-action protocol stage and many authorities do back down meaning that possible challenges are settled pre-litigation. Whilst this is beneficial for the applicant it is often frustrating for practitioners as it means that these cases are not subject to judicial scrutiny and no precedents are created.
In Wales, we would benefit from case law to assist applicants, their legal representatives and the authorities in interpreting the legislation. Precedents would help to avoid the same issues continually arising in case work.
The report suggests that one of the reason why authorities feel unable to defend appeals and Judicial Review is due to lack of financial resources – we would welcome further dialogue with the Welsh Government around providing support (both financial and advisory) to the authorities so they can defend those cases where they believe their decision to be correct. With the exception of legal practitioners, there seems to be an aversion to litigation generally and there needs to be a wider understanding of the importance of litigation and the benefits it brings particularly in clarifying the law.