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.