PLT Masthead 430

Comment and Analysis Masthead

Homelessness and local connection

Lexis Public Sector 146x219LexisPSL Local Government, in partnership with Catherine Rowlands of Cornerstone Barristers, consider the issues around homelessness and local connection.

This article provides guidance on the concept of ‘local connection’ as set out in section 199 of the Housing Act 1996 (HA 1996) in England and section 81 of the Housing (Wales) Act 2014 (H(W)A 2014) in Wales as amended by the Homelessness Reduction Act 2017 (HRA 2017) with effect from 3 April 2018. This concept is used to assist a local housing authority (LHA) when dealing with housing applications, as it permits LHAs to make referrals to other LHAs where a housing applicant lacks a local connection to the referring LHA. This is designed to prevent an LHA from being overwhelmed with housing applications. This article also provides information relating to the relevant legislation and guidance in both England and Wales.

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New statutory guidance was issued for England on 22 February 2018 to coincide with the coming in force of HRA 2017 on 3 April 2018. This guidance is referred to throughout this article as the Homelessness code of guidance for local authorities 2018 (2018 Code). It will apply to all applications and reviews requested from 3 April 2018. The older statutory guidance will remain relevant to decisions taken prior to that date and is referred to throughout this article as the Homelessness Code of Guidance for Local Authorities (July 2006) (2006 Code).

References:

Homelessness Reduction Act 2017 (Commencement and Transitional and Savings Provisions) Regulations 2018, SI 2018/167, reg 4

Importance of local connection

A homeless person (applicant) may apply to any LHA for housing assistance. However, that does not mean that the LHA which receives the application is bound to provide assistance. Where the LHA has made the relevant enquiries pursuant to HA 1996, s 184 and satisfies itself that the relief duty under HA 1996, s 189B or, the main housing duty under HA 1996, s 193 or H(W)A 2014, s 73 is owed to an applicant, it may refer the applicant to another LHA, provided that the conditions for referral are met.

The LHA to whom the application has been made cannot refuse to deal with the application even if there is an immediately obvious local connection to another LHA. Further, where the duty arises under HA 1996, s 188 or H(W)A 2014, s 68 the LHA to which the applicant has applied must also provide interim accommodation pending its decision as to whether the main housing duty is owed.

References:

HA 1996, s 198(1)

H(W)A 2014, s 80

An LHA is not obliged to consider local connection as part of its enquiries into the housing duty that may be owed, and nor is it required to refer to another LHA, as the power to do so is discretionary.

References:

HA 1996, s 184(2)

HA 1996, s 198(1)

H(W)A 2014, s 80

R v East Devon District Council, ex parte Robb [1997] Lexis Citation 5262

However, if the applicant is a former asylum seeker who was provided with accommodation in Scotland under section 95 of the Immigration and Asylum Act 1999 (IAA 1999) and whose accommodation was not provided in an accommodation centre pursuant to section 22 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), an LHA in England will be required to consider local connection as a part of its consideration into what housing duty is owed to the applicant.

References:

Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 11

If the LHA irrationally exercises the power to refer, or fails to consider whether to refer, an applicant may seek a review of that decision under HA 1996, s 202 or H(W)A 2014, ss 8589 (see Practice Note: Homelessness—the review and appeal procedures).

If an LHA does consider local connection, it should then consider:

References:

HA 1996, s 198(1)

H(W)A 2014, s 80

  • whether the conditions for referral are satisfied, and
  • whether it is appropriate for referral to be made

The conditions for referral are that:

References:

HA 1996, s 198(2), 198(2A)

H(W)A 2014, s 80(3)

  • the applicant, and anyone who might reasonably be expected to reside with them, does not have a local connection to the LHA
  • the applicant, or anyone who might reasonably be expected to reside with them, has a local connection to another LHA’s area
  • there is no risk of the applicant, or anyone who might reasonably be expected to reside with them, being exposed to domestic violence or other violence if they are referred to the other LHA’s area
  • neither the applicant nor anyone who might reasonably be expected to reside with the applicant has suffered violence in the district of the other authority, or if such violence has been suffered, it is not probable that the return to that district of the victim will lead to violence of a similar kind against that person

In Wales, there is one further condition for referral, which is that a person has not suffered abuse or violence in the other LHA’s area.

References:

H(W)A 2014, s 80(4)

At the relief stage

Referrals cannot be made to a Welsh or Scottish authority at the relief stage. If the LHA is satisfied that the applicant is homeless and eligible for assistance, and that the conditions for referral are met, a referral to an English authority can be made at the relief stage and the referring authority is not subject to the relief duty once the applicant has been notified of that decision (HA 1996, s 199A(b)). The second authority is bound by the notifying authoritiy’s decision on homelessness and eligibility (and intentionality if appropriate). The notifying authority must provide the second authority with a copy of the applicant’s section 189A assessment and personalised housing plan upon referral.

Out of borough placements

Two further sets of conditions can also apply in circumstances where there has been a previous homeless application and the applicant has been placed outside of the LHA’s area. As with the local connection conditions above this provides an LHA with the power to refer to another authority, though it can decide not to do so.

Firstly, where a ‘private rented sector offer’ (under HA 1996, s 193(7AA)–(7AC)) ended the homeless duty and led to an applicant moving out of the district, and then a new application for homeless assistance is made within two years, a referral to the original LHA can be made, subject to the following:

References:

HA 1996, s 198(2ZA)

  • there is no risk of the applicant, or anyone who might reasonably be expected to reside with them, being exposed to domestic violence or other violence if they are referred to the other LHA’s area
  • neither the applicant nor anyone who might reasonably be expected to reside with the applicant has suffered violence in the district of the other authority, or if such violence has been suffered it is not probable that the return to that district of the victim will lead to violence of a similar kind against that person

Secondly, where an applicant was placed in another district (in England only) in pursuance of the LHA’s functions under HA 1996, Pt VII or H(W)A 2014, Pt 2, and within five years the applicant makes an application to the new authority, then the conditions are met for a referral back to the original LHA. The caveats regarding violence or the risk thereof, do not apply.

References:

HA 1996, s 198(4)

Meaning of local connection

The term local connection suggests that an applicant has links ‘in real terms’ to a specific locality. There are five bases upon which local connection can be established. The applicant must satisfy one of the following conditions:

References:

HA 1996, s 199

H(W)A 2014, s 81

  • normally reside in the area, or in the past have been normally resident in the area. However, that residence must be of their own choice
  • be employed in the area
  • have family connections in the area
  • have special circumstances
  • be a care leaver to whom the local housing authority (or the local authority within whose area the local housing authority falls) owes a duty as a former relevant child under section 23C of the Children Act 1989

The statutory provisions are expanded upon in Chapter 10 of the 2018 Code, Annex 18 of the 2006 Code, and Chapter 18 of the Code of Guidance to Local Authorities on the Allocation of Accommodation and Homelessness 2016 (the Welsh Code). These set out guidelines which have been agreed between various local government associations and which can be used when considering local connection. However, the guidelines make clear that they are without prejudice to an LHA’s duty to consider each case on its own merits. The main principles set out in the guidelines are discussed in this article.

The time at which local connection is determined is the date of the LHA’s decision, not the date of the application. If the applicant exercises their right under HA 1996, s 202 or H(W)A 2014, ss 85 to seek a review of the LHA’s decision, local connection will be considered as a part of that review. Therefore, an applicant may potentially acquire local connection between the date of the original decision and the decision on review. For more on reviewing a decision, see Practice Note: Homelessness—the review and appeal procedures.

References:

Mohamed v Hammersmith & Fulham RLBC [2001] UKHL 57

2006 Code, Annex 18, para 4.1

Code of Guidance to Local Authorities on the Allocation of Accommodation and Homelessness 2016 (the Welsh Code), Chapter 18, para 18.5

Normal residence

‘Normal residence’ suggests that a person intends to settle in the area, although it need not be for an indefinite period. There is no minimum length of residence prescribed in the HA 1996, but the 2018 Code suggests that, as a rule of thumb, an applicant must have been living in an area for six out of the previous 12 months, or three out of the previous five years. However, this rule should not be applied rigidly. See also Chapter 18, para 18.5 of the Welsh Code.

References:

2018 Code, Ch 10.7

2006 Code, Annex 18, para 4.1(i)

The Welsh Code, Chapter 18, para 18.5

Betts v Eastleigh BC [1983] 2 AC 613

Residence must be of choice. Therefore, living in an area while in prison does not establish local connection, nor will detention under the Mental Health Act 1983. However, interim accommodation pending a decision or review may establish local connection.

References:

2018 Code, Ch 10

Mohamed v Hammersmith & Fulham RLBC [2001] UKHL 57

2006 Code, Annex 18, para 4.3

The Welsh Code, Chapter 18, para 18.5

Former asylum seekers may have a local connection to the area in which they were accommodated by the National Asylum Support Service under IAA 1999, s 95 even though it was not residence of choice. However, local connection to one LHA will not be established if an applicant is subsequently accommodated by a different LHA under IAA 1999, s 95, and nor will it be established where the accommodation was by way of accommodation centre under IAA 1999, s 22.

References:

2018 Code, Ch 10.13–16

HA 1996, s 199(6), 199(7)

H(W)A 2014, ss 81(5), 81(6)

Employed in the area

Employment means more than casual work, and includes self-employment. The applicant must actually work in the area — it is not enough that the company’s head office is in that area, for example.

References:

R v Vale of White Horse DC ex parte Smith and Hay (1984) Lexis Citation 705

2018 Code, Ch 10.8

2006 Code, Annex 18, para 4.1

The Welsh Code, Chapter 18, para 18.5

Family connections

Family connections are not defined in HA 1996. However, the case of Ozbek v Ipswich BC suggests that it may include extended family members so long as there are sufficiently close links of contact, commitment or dependency. It is the nature of the relationship, rather than the degree of consanguinity, that matters. This is confirmed in the 2018 Code. Paragraph 10.9 also adds that an LHA should not identify a local connection through family association unless it is in an area where the applicant positively wants to live. The family members should normally have been resident in the receiving area for at least five years.

References:

2018 Code, Ch 10.9

2006 Code, Ch 18.10

The Welsh Code, Chapter 18

Ozbek v Ipswich BC [2006] EWCA Civ 534

Special circumstances

Special circumstances may include the need to be close to medical or other support services. Merely wishing to return to an area where an applicant used to have a connection does not of itself amount to a special circumstance.

References:

2018 Code, Ch 10.11

2006 Code, Ch 18.10

The Welsh Code, Chapter 18

R v Islington LBC ex parte Adigun (1986) Lexis Citation 1129

Local connection to more than one LHA

Where an applicant has a local connection to a number of LHAs, the LHA to which they have applied may assess which is the most appropriate LHA to refer them to, and the wishes of the applicant should be taken into consideration in relation to that. Where there is no local connection to any LHA, the LHA which received the application is under the duty to secure accommodation.

References:

The English Code, Ch 18.22

The Welsh Code, Chapter 18

Disputes

The referring LHA must notify both the second LHA and the applicant of its decision to refer at the main housing duty stage. It must also give reasons for that decision.

References:

HA 1996, s 184(4)

H(W)A 2014, s 63

An applicant has the right to seek a review of an LHA’s decision to refer—see Q&A: What are the procedures for reviewing a decision made by a local housing authority under: section 198 (5) of the Housing Act 1996; and the Homelessness (Decisions on Referrals) Order 1998, SI 1998/1578?

Once the referring LHA has notified the second LHA of its decision to refer, the second LHA is bound by the decision of the first LHA as to homelessness, priority need and intentionality. Further, the referring LHA cannot revoke its original decision, even if the second LHA indicates that it disagrees with that decision. However, the second LHA is able to argue that the conditions for referral are not met. See News Analysis: In brief: Local housing authority unable to revoke its own homeless decision (R (on the application of Sambotin) v Brent London Borough Council).

References:

HA 1996, s 200(1)

H(W)A 2014, s 82

R (on the application of Sambotin) v Brent London Borough [2017] EWHC 1190 (Admin)

If the second LHA accepts that the conditions for referral are met, that LHA becomes subject to the main housing duty.

References:

HA 1996, s 193

H(W)A 2014, s 75

Disputes between the two LHAs are resolved in the first instance between them, but if they cannot agree, there is a dispute-resolution mechanism in the Homelessness (Decisions on Referrals) Order 1998, SI 1998/1578, which is also set out in the English Code. The Local Government Association will nominate, on request, an arbitrator or referee, to settle the dispute. The procedure is a written one and the applicant is also entitled to make written or oral submissions.

References:

HA 1996, s 198(5)

H(W)A 2014, ss 82(2), 82(3), 82(4)

Homelessness (Decisions on Referrals) Order 1998, SI 1998/1578

2018 Code, Ch 10.59–67

2006 Code, Annex 18

The Welsh Code, Chapter 18.28

An applicant is entitled to request a review of the final decision as to whether the referral conditions were met, regardless of whether this decision is reached by agreement between the two LHAs, or via the dispute resolution mechanism. For more on both the dispute resolution procedure and the procedure for reviewing the final decision, see Q&A: What are the procedures for reviewing a decision made by a local housing authority under: section 198 (5) of the Housing Act 1996; and the Homelessness (Decisions on Referrals) Order 1998, SI 1998/1578?

There is no right to request a review of a decision under HA 1996, s 198(A1) to refer at the relief stage.

Until an applicant is notified of the final decision as to whether the conditions for referral are met, the first (notifying) LHA remains liable to accommodate the applicant in temporary accommodation if the referral is made after the relief stage has ended.

References:

HA 1996, s 200(2)

H(W)A 2014, s 83(1)

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