Homelessness priority need categories in Wales

A pregnant woman, and anyone who lives with her or would be reasonably expected to live with her, has a priority need for accommodation.[1]

The stage of pregnancy is irrelevant. A normal letter from a midwife or medical services confirming pregnancy should be adequate evidence of pregnancy.

If a pregnant woman suffers a miscarriage, or terminates her pregnancy during the assessment process, the authority may need to consider whether she has a priority need for accommodation because she is vulnerable due to a special reason.[2]

A person who dependent children living with them, or might reasonably be expected to be living with them, has a priority need for accommodation.[3]

Authorities should treat as dependant all children:

• under the age of 16

• aged 16, 17 or 18 who are in or about to start full-time education (including further but not higher education) or training

• aged 16, 17 or 18 who for other reasons are unable to support themselves and who live at home

16 and 17 year olds who are financially independent would not usually be considered dependants, although they could if they were not ready to live independently.

Dependent children are not necessarily the applicant’s own children. However there must be a dependant relationship like that of a parent and child.

Where the applicant’s children are subject to a care order or are accommodated under a voluntary agreement, and are not currently living at home, liaison with social services is essential in determining the nature and degree of the children’s dependency.[4]

Separated parents

If there is a court residence order in favour of only one parent, the children named in the order should be considered dependant on that parent.

Where parents have agreed to share the care of the children between themselves, or there is a court joint residence order, the authority should take into account all the circumstances of the case and may decide that the children are dependent on both of the separated parents even if they do not reside with them at all times.

It is only in exceptional circumstances that it would be reasonable to expect children who mostly reside with one parent to be provided with another home under the homelessness legislation so that they could also reside with the other parent.[5]

A person who is vulnerable as a result of some special reason, and anyone living with them or reasonably expected to live with them, has a priority need for accommodation.[6]

The Code of Guidance for Local Authorities in Wales provides a non-exhaustive list of examples of special reasons that could be considered and guidance on how to carry out the vulnerability assessment in each case.[7]

The list includes:

• old age

• physical or mental illness

• physical or mental disability

• victim of abuse

• rough sleeper

• former asylum seeker

The vulnerability test

Section 71 of the Housing (Wales) Act 2014 states that a person is vulnerable as a result of a special reason if:

• they would be less able to fend for themselves (as a result of that reason) if they became street homeless than an ordinary homeless person who becomes street homeless, and

• this would lead to them suffering more harm than would be suffered by the ordinary homeless person

Being ‘street homeless’ in this context means not having a legal right to occupy accommodation by virtue of a legal interest, an express or implied licence, or any enactment or rule of law.

This is the Pereira test established under the Housing Act 1996.[8] The test was later modified by the Supreme Court which held that the correct comparator for a vulnerability assessment should be an ‘ordinary person if made homeless’, not an ‘ordinary street homeless person’.[9]

The Supreme Court's decision post-dates the enactment of the Housing (Wales) Act 2014. The Code of Guidance for Local Authorities in Wales recommends that, when assessing vulnerability, authorities should use the new comparator established by the Supreme Court. The starting point for any vulnerability assessment should be to consider the ordinary person who is in need of accommodation and establish the harm or detriment they would experience together with their ability to fend for themselves when street homeless. Authorities should then compare this to the person they are assessing. If that person would be less able to fend for themselves and thus would suffer more harm as a result of the special reason, then that person should be considered vulnerable.[10]

A person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster, and anyone residing or reasonably expected to reside with them, has an automatic priority need for accommodation.[11]

A person who is homeless as a result of being subject to domestic abuse and anyone (except the abuser) residing or reasonably expected to reside with them has a priority need for accommodation.[12]

Abuse is defined as physical violence, threatening or intimidating behaviour and any other form of abuse which may give rise to the risk of harm. Domestic abuse is when the victim is associated with the abuser.

See Homelessness and threatened homelessness for information on who counts as an associated person.[13]

In cases involving domestic abuse, the safety of the applicant and ensuring confidentiality are of paramount importance. Authorities should not seek confirmation of domestic abuse from the alleged abuser.[14]

A young person aged 16 or 17 when they make a homeless application, and anyone living them or reasonably expected to live with them, has a priority need for accommodation.

This priority need is retained even if the person turns 18 at any point during the assessment or whilst owed a duty.[15]

Duties under the Social Services and Well-being (Wales) Act 2014

Accommodation duties owed to homeless 16 and 17 year olds under social care legislation take precedence over accommodation duties under homelessness legislation.[16]

When a young person aged 16 or 17 makes a homelessness application, social services are under a duty to assess their circumstances and determine whether their need for accommodation can be met by reintegration in the family or by provision of accommodation.

The authority must provide accommodation to any 16 or 17 year old whose well-being is likely to be seriously prejudiced if it does not provide it, or to a child of any age within its area who appear to require accommodation as a result of:[17]

• there being no-one with parental responsibility for them

• being lost or abandoned

• the person who has been caring for them being prevented (whether permanently or not, and for whatever reason) from providing suitable accommodation or care

This is known as being ‘voluntarily accommodated’ as the child enters the ‘looked after’ system without being subject to a care order. Consent must be given by the person with parental responsibility for children aged under 16.

Young people aged 16 or 17 are asked to give their own consent.

Joint working between housing and social services

If a homeless 16 or 17 year old approaches the housing department rather than social services, housing should provide interim accommodation pending a referral to social services for an assessment under the Social Services and Well-being Wales Act 2014.

Authorities should have protocols in place to ensure the best outcomes for the young people and joint working between departments to meet their housing and other needs.[18]

A person aged 18, 19 or 20 when they make a homeless application and who is at particular risk of sexual or financial exploitation has a priority need for accommodation. Priority need extends to anyone (except the exploiter or potential exploiter) who lives with them or is reasonably expected to live with them.[19]

Such priority need is retained if the young person turns 21 at any point during the assessment or whilst owed a duty.

The Code of Guidance for Local Authorities in Wales also suggests that the following factors may place a young person at particular risk of exploitation:[20]

• sexual abuse

• sexual orientation

• prostitution

• learning difficulties

• misuse of power or exercise of control by another person

• financial extortion

• low income and vulnerable due to lack of alternative financial means

A person aged 18, 19 or 20 when they make the homeless application and who was looked after, accommodated or fostered at any time whilst under the age of 18 has a priority need for accommodation. Priority need extends to anyone who lives with them or is reasonably expected to live with them.

This priority need is retained if the young person turns 21 at any point during the assessment or whilst owed a duty.[21]

‘Looked after, accommodated or fostered’ in this context includes those who have been:[22]

• subject to a care order, or

• voluntarily accommodated by a local authority[23]

• remanded to youth detention accommodation[24]

• privately fostered, or

• accommodated by a voluntary organisation or health authority

When the young person has been ‘voluntarily accommodated’ by social services then the accommodation must have been provided for a continuous period of more than 24 hours.[25]

A former member of the regular armed forces who has been homeless since leaving the forces (and anyone reasonably expected to live with them) has a priority need for accommodation.[26]

Priority need arises where the applicant has failed to secure suitable permanent accommodation and to establish stable accommodation since leaving the armed forces.

‘Suitable permanent accommodation’ in this context means:[27]

• accommodation provided by a social landlord (an introductory, secure or assured tenancy)

• private rented accommodation (an assured shorthold tenancy)

• accredited supported housing

• permanently settled with family or friends as part of their household

A former member of the armed forces who found settled accommodation following discharge, but later becomes homeless, does have an automatic priority need. Authorities should still consider whether they are vulnerable due to some special reason, which could include their history in the armed forces.

The National Housing Pathway for Ex-Service Personnel outlines the support and services available to former members of the armed forces to help them find and retain suitable accommodation, both when they are discharged from the forces and later on in their lives.

A person who has a local connection to the authority and who is vulnerable as a result of having served a custodial sentence or having been remanded in custody or to youth detention accommodation has a priority need for accommodation. Priority need extends to anyone living with or reasonably expected to live with them.[28]

Residence in prison does not in itself establish a local connection.

The vulnerability test is the same as the one applicable to people who are vulnerable due to a special reason. When assessing the vulnerability of a former prisoner, local authorities should take account of the following:[29]

• length of time in custody or detention (vulnerability could occur as a result of a short period in custody or detention)

• whether the applicant is still suffering the effects of any traumatic episodes experienced in custody or detention

• any supervision from a criminal justice agency (for example, the National Probation Service in Wales or the Youth Offending Team)

• length of time since release and the extent to which the applicant has been able to obtain or maintain accommodation during that time

• existing support networks and how much of a positive influence these networks are likely to be in the applicant’s life

• any care assessment

• receipt of services under the Mental Health (Wales) Measure 2010

If a former prisoner fits into one of the other automatic priority need categories, the authority does not need to assess whether they are vulnerable.

A person who is street homeless and anyone who might reasonably be expected to reside with them has a priority need for accommodation.[30]

A person is 'street homeless' in this context if they have no legal right to occupy accommodation by virtue of a legal interest, an express or implied licence, or any enactment or rule of law giving them the right to remain in occupation.[31]

The Welsh Government has published an addendum to the Code of Guidance on assessing priority need of people who are street homeless.

The help to prevent duty and the help to secure duty are owed to all eligible applicants regardless of priority need.

Priority need must be considered at key points under the duty to assess, namely when deciding whether the applicant is owed an:

• interim accommodation duty or

• final duty

Ineligible household members must be disregarded by the authority when determining whether a non-EEA eligible applicant who is subject to immigration control has a priority need for accommodation.[32]

This means that in some cases there could be no accommodation duty despite the presence of dependent children, a pregnant woman or other vulnerable person in the household.

See Eligibility for help for more information on:

• people subject to immigration control

• households with mixed immigration status

Applicants who are dissatisfied with local authority decisions about whether they are in priority need have a right to request a review within 21 days.

The provisions in Part 2 of the Housing (Wales) Act 2014 apply to homelessness applications made to local authorities in Wales on or after 27 April 2015.

For the law applicable to applications made in Wales before that date, contact Shelter Cymru.