No room at the inn

Many practitioners who work in the field of homelessness will have come across the problem of 'homelessness gatekeeping'. This is where local housing authorities deliberately, negligently or innocently act to defeat the objects or policy of the Housing Act 1996, Pt 7 by refusing to accept homelessness applications or refusing to comply with their duties under the Act. One of the objects of the 1996 Act was to maintain a safety net for the homeless (see 'Our Future Homes' (June 1995, Cm. 2901). If authorities actively seek to avoid using this 'safety net' then that constitutes gatekeeping, which is unlawful.

Duties under the Housing Act 1996

Local housing authorities have a duty to accept homelessness applications. Subject to certain limited exceptions (R v Harrow LBC ex p Fahia [1998] 30 HLR 1124; Rikha Begum v Tower Hamlets LBC [2005] EWCA Civ 340) anyone is entitled to make an application as homeless and refusal to permit them to do so is a breach of statutory duty. Applications do not have to be made in writing (R v Chiltern DC ex p Roberts [1990] 23 HLR 387).

If an authority receives a homelessness application and has 'reason to believe' that the applicant may be homeless or threatened with homelessness it then has a duty to make enquiries into the case (Housing Act 1996,

s 184 (1)). It is a low threshold test having reason to believe is a lower test than being satisfied (Homelessness Code of Guidance (DCLG July 2006), para 6.5). Once the authority has reached its decision, it must notify the applicant (1996 Act, s 184(3)).The notification, and reasons, must be given in writing (s 184(6)).

If the authority has reason to believe that the applicant may be eligible for assistance, homeless and in priority need, it has to secure that accommodation is made available for his occupation pending any decision that it may make as a result of its enquiries (1996 Act, s 188(1)) A low standard of belief is all that is necessary to establish this duty (R(M) v Hammersmith and Fulham LBC [2008] UKHL 14, at [36]).

Species of gatekeeping

There are a number of different ways in which a local housing authority may seek to avoid complying with the duties outlined above, some are more subtle than others. All however come under the general banner of gatekeeping.

Refusing to accept a homeless application

This can be for a variety of reasons, for example a housing officer may make an 'off the cuff' assessment of the applicant's situation (for example, that the applicant plainly has a local connection with another authority) and reject the application on the spot without properly complying with the enquiries or notification procedures outlined above. Some rejected applicants will take legal advice and challenge the rejection, others won't. It is therefore very difficult to gauge the scale of this form of gatekeeping. What is clear is that the refusal to take an application will usually be unlawful (Delahaye v Oswestry BC [1980] The Times, 29 July).

Refusing to acknowledge that an applicant may be homeless

This is usually where the applicant is not street homeless but may be homeless pursuant to 1996 Act, s 175(3) which deems homelessness to exist where the applicant's accommodation is no longer reasonable to continue to occupy, that is the applicant is homeless at home.

For example, the authority may be unwilling to accept that a family is homeless if they have accommodation even if that accommodation is chronically overcrowded as in Birmingham City Council v Aweys [2008] EWCA Civ 48.

Refusing to acknowledge that applicant is homeless '“ hospital, residential treatment discharges and women's refuges.

The local authority may refuse to provide assistance to the homeless applicant who is about to be discharged from hospital or residential treatment until she is actually discharged. The hospital in turn may decide that it is unwilling to discharge the applicant until it is sure that she will be provided with assistance by the authority. This leads to a 'stand off', which can usually only be resolved by threatening proceedings. The Homelessness Code of Guidance recommends early planning for discharge between institutional staff and local housing providers, including assessing support needs (Table 2.1). This does not always take place.

Similarly in the case of applicants who are in women's refuges, the authority may seek to assert that they are not homeless or threatened with homelessness until the refuge asks them to leave. This approach was previously considered unlawful in R v Ealing LBC ex p Sidhu [1982] 2 HLR 45, where the court held that there was no necessary inconsistency between being homeless and living in a refuge. However the position has now changed following the recent decision in Moran v Manchester [2008] EWCA Civ 378 which held that a women's refuge could be described as 'accommodation' for the purposes of the Housing Act 1996 Pt VII, and it could be reasonable, for the purposes of the Act, for a woman to continue to occupy such a refuge.

Refusal to make enquiries or provide interim accommodation on the basis that the threshold test is not met

It is not uncommon for an authority to accept an application but then refuse to carry out any enquiries on the basis that they do not have reason to believe that the applicant may be homeless or threatened with homelessness (1996 Act, s 184(1)). This is invariably accompanied by a refusal to provide interim accommodation, pending enquiry pursuant to s 188(1).

However the threshold test for enquiries is very low. Unless it is plain and obvious that the applicant is not homeless or threatened with homelessness the duty to make enquiries will necessarily be triggered. This is because if there remains any doubt about whether an applicant is genuinely homeless, then enquiries are necessary to resolve this doubt.

Use of mediation and conciliation prior to exercising the homelessness duty

An authority may insist that an applicant undergoes mediation before it commences its homelessness enquiries.

Mediation and conciliation may be laudable particularly in the case of homeless young people who have been evicted from the family home (see paras 12.8 '“ 12.9 of the Homelessness Code of Guidance). However if the applicant is homeless or threatened with homelessness any mediation would have to run in parallel to the enquiries process. In Robinson v Hammersmith and Fulham LBC [2007] HLR 7, the authority had deferred making a decision as to whether a 17-year-old was in priority need so that mediation could take place. The Court of Appeal held that this was unlawful.

The use of homelessness prevention schemes in place of the statutory duty

The Homelessness Code of Guidance makes it clear that although housing authorities are entitled to offer alternative solutions to the statutory route in cases of potential homelessness (so-called 'housing options') '“ this approach has been positively encouraged by the government as part of the homelessness prevention agenda, in this regard see More than a Roof: a Report into Tackling Homelessness (March 2003 DTLR) '“ they must not deliberately avoid their obligations under Pt 7 of the 1996 Act.

Despite this guidance some authorities fail to make the distinction clear and applicants may unwittingly forego their rights under Pt 7 by accepting assistance outside of the statutory framework through a rent deposit scheme for example. Alternatively the negative aspects of the statutory route may be emphasised in order to encourage applicants into the private sector.

Such practices are difficult to pin down and therefore challenge in court, however it seems clear that if the authority fail to advise a homeless applicant of their rights under 1996 Act, Pt 7 and solely advise them as to their other 'options'. This will be unlawful (see R (Aweys) v Birmingham CC [2007] EWHC 52 (Admin) at para [25])5. Further if a vulnerable applicant makes a choice to pursue the non-statutory route it may be possible to challenge an authority's refusal to carry out a formal assessment if the choice is not genuinely an informed one.

The use of delay to avoid a duty

Authorities may seek to delay making a decision with the intention of avoiding a statutory duty. This is unlawful as per Robinson above, where the authority tried to avoid a priority need finding by delaying their decision until the applicant's 18th birthday.

General adversarial approach

This is a more subtle form of gatekeeping. Some authorities have adopted an increasingly negative stance towards homelessness applicants and their rights. In areas of acute housing shortage, officers may be over zealous in protecting limited resources to such an extent that they lose sight of their function. It may be useful in these circumstances to refer them back to the judgment of LJ Sedley in Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 CA at 329 who stated that the duty of a homelessness officer is to guard the applicant's interest because the 1996 Act creates a public duty, not a private right.

Challenge to gatekeeping

There is no statutory right of review of an authority's refusal to comply with its homelessness duties. A challenge would need to be brought by way of judicial review seeking a mandatory order. It may be necessary to seek interim relief from the duty judge in the High Court, to get the applicant housed in the meantime (R (Lawer) v Restmorel BC [2007] EWHC 2299 (Admin)). (See box below).

In many instances the authority will concede the challenge, accept the application and house the applicant. This can be particularly frustrating for practitioners because although their principal aim is to act in the interests of their client they would like to be able to challenge those authorities who systematically refuse to comply with their duties. Once the judicial review becomes academic this form of policy challenge is made difficult because public funding may not be allowed to continue (See R (Ho-Sang) v Lewisham v Lewisham Borough Council CO/5652/03 (2004) July Legal Action p19 for an example of a successful policy challenge).

Another route of challenge is through a complaint to the local government ombudsman. An advantage of the latter route is that the monitoring officer must report to council members as to the outcome of the complaint. This may result in an improvement in procedures if the councillors are sympathetic.

Realistically busy practitioners will usually go down the judicial review route and seek to obtain relief on an individual basis. They can be forgiven for adopting such an approach however in some cases unless a policy challenge is brought an authority will continue to use gatekeeping as a means of limiting homelessness acceptances. One motive for gatekeeping may be to ensure that the authority does well in its performance indicators on homelessness prevention and so benefit from freedoms and flexibilities or 'earned autonomy'.

It is not the intention of this article to suggest that gatekeeping practices are widespread across local housing authorities however these practices do take place and practitioners need to be alive to the issue and ready to act on behalf of their client in countering the problem when necessary.