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Wales: homelessness and threatened homelessness

This content applies to Wales

Definition of homelessness and threatened homelessness under Part 2 of the Housing (Wales) Act 2014.

No accommodation available for occupation

A person is homeless if there is no accommodation in the UK or elsewhere which s/he has a legal right to occupy.[1]

The local authority is entitled to consider whether there is accommodation available anywhere in the world when deciding whether a person is homeless or threatened with homelessness.

Accommodation can only be regarded as available for occupation if it is available for the homeless applicant and anyone else who:[2]

  • normally resides with the applicant as a family member, or
  • might reasonably be expected to reside with the applicant.

An applicant with a legal right to occupy accommodation will still be regarded as legally homeless if s/he has a split household and the family cannot all live together.

No legal right to occupy

A person will have a legal right to occupy accommodation if s/he has:

Unless they are an excluded occupier, a tenant or licensee will have the right to remain in occupation following service of a notice seeking possession or notice to quit. S/he will have a legal right to occupy until the enforcement of a possession order.[3]

Right to occupy pending a possession order

The fact that a tenant has the right to remain in occupation does not mean that s/he is not homeless. In assessing whether a tenant who has a right to remain in occupation pending a possession order is homeless, the local authority will need to consider whether it would be reasonable and safe for her/him to continue to occupy the accommodation pending proceedings.[4]

Right to occupy when asked to leave by parents or friends

Where an applicant has been asked to leave accommodation by family or friends, the local authority will need to consider carefully whether the applicant's licence to occupy has in fact been revoked. Authorities would be acting unlawfully if they insisted that the applicant obtain a letter confirming that s/he has been asked to leave before accepting a homeless application. Authorities may need to interview the parents or friends to establish whether they are genuinely revoking the licence and rendering the applicant homeless.[5]

Right to occupy in relationship breakdown cases

In some cases of relationship breakdown, the applicant may be unable to stay in the accommodation. In others, there may be scope for preventing or postponing homelessness through mediation and housing options assistance from the local authority. However, local authorities will need to be sensitive to the possibility that for some applicants it may not be:[6]

  • safe to remain in (or return to) their home because of a risk of abuse, or
  • reasonable for them to remain where the relationship has irretrievably broken down.

Unable to secure entry to accommodation

A person is homeless if s/he has accommodation but cannot secure entry to it.[7] This would include cases where:

  • the tenant has been evicted illegally, or
  • their accommodation is occupied by squatters.

Legal remedies may be available to such an applicant to regain possession of the accommodation, but local authorities must treat the applicant as homeless until re-entry is secured.[8]

Mobile homes and houseboats

A person is homeless if:[9]

  • her/his accommodation consists of a moveable structure, vehicle or vessel designed or adapted for human habitation, and
  • there is nowhere where s/he can legally place it and reside in it.

More information on Mobile homes in Wales is available from Shelter Cymru.

Not reasonable to continue to occupy

A person will be homeless if s/he has a legal right to occupy accommodation available for her/his household but it is not reasonable for them to continue to occupy it.[10]

When deciding whether accommodation is, or would have been, reasonable to continue to occupy the local authority must consider:[11]

  • probability of abuse in the accommodation, and
  • whether the accommodation is, or was, affordable for the applicant.

Other factors which may be taken into account include:[12]

  • general housing conditions in the local area
  • landlord's service of notice of intention to recover possession.

Abuse or threat of abuse

It is not reasonable for a person to continue to occupy accommodation if it is probable that s/he, or a member of her/his household, will be subjected to abuse.[13]

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.[14]

The likelihood of a threat of abuse being carried out should not be based on whether there has been actual abuse in the past. Inquiries into cases where abuse is alleged should be handled carefully and with sensitivity. When dealing with cases involving abuse or threat of abuse from outside the home, local authorities should consider, with the applicant, whether steps to prevent homelessness by supporting them in their current home or alternative accommodation are appropriate. They should consider the option of improving the security of the applicant's home to enable them to live there safely where that is an option that the applicant wishes to pursue. However, where there would be a probability of abuse if the applicant continued to occupy the accommodation, the authority must treat the applicant as homeless and should not expect them to return.[15]

Domestic abuse

Abuse is domestic abuse when the victim is associated with the abuser.[16] Although domestic abuse often occurs within the home, it can also extend to actions outside the home.[17] It is possible that a victim has never lived with the abuser but it will still be domestic abuse if the abuser is an associated person.

The full list of associated persons can be found in the Act and includes:[18]

  • current or former spouses, civil partners or cohabitants
  • people who have lived in the same household
  • parents, children, grandparents, grandchildren, siblings, uncles, aunts, nieces and nephews (whether blood relatives or related by virtue of adoption, marriage, civil partnership or enduring family relationship)
  • people who have agreed to enter into a marriage or civil partnership (whether or not the agreement has been terminated)
  • people who have had an intimate personal relationship of significant duration
  • people who share or have had shared parental responsibility for a child.

Local authorities can inform applicants of the option of seeking an injunction, but there is no obligation for the applicant to do so. Injunctions will not necessarily deter an abuser and applicants should not be expected to return home on the strength of an injunction. A refuge may be suitable as emergency accommodation for some victims of domestic abuse although this should not be a precondition for being accepted as homeless.[19]

Affordability

Affordability must be considered in all cases. Local authorities should take account of:[20]

  • financial resources available to the applicant
  • cost of the accommodation
  • maintenance payments
  • other reasonable living expenses.

Households should not be penalised for the loss of accommodation where it was due to an unavoidable change in their welfare benefits or income related to employment that led to the accommodation becoming unaffordable. In these circumstances they should be regarded as homeless or threatened with homelessness, and they should be assisted at the earliest point to maintain the accommodation through available resources or provided with assistance to look for alternative accommodation.[21]

Housing conditions in the local area

The Code of Guidance for Local Authorities in Wales suggest that authorities may consider:[22]

  • physical conditions – by assessing the property under the Housing, Health and Safety Rating System and deciding whether it is suitable for human habitation or so bad in comparison to other accommodation in the area that it would not be reasonable to expect the applicant to continue to live there
  • overcrowding – although statutory overcrowding by itself is not sufficient to determine whether it is unreasonable to continue to occupy, it can be a key factor in suggesting unreasonableness
  • type of accommodation – some types of accommodation are intended to provide temporary accommodation in a crisis, for example women's refuges, direct access or limited stay hostels and night shelters. These should not be regarded as reasonable to continue to occupy in the longer term.[23]

Notice of possession

Where the landlord has served notice of intention to recover possession, when deciding whether it is reasonable for the tenant to continue to occupy, the local authority should consider:[24]

  • whether the notice is valid and has been served correctly
  • costs to the authority of providing homelessness assistance or accommodation
  • position of landlord and tenant
  • likelihood of actual possession proceedings
  • financial costs of proceedings for the tenant
  • burden on the courts of unnecessary proceedings where there is no defence to the possession proceedings.

Where the applicant is an assured shorthold tenant who has received a valid section 21 notice, and there is no defence to possession proceedings, and the authority is satisfied that the landlord intends to seek possession, it is unlikely to be reasonable for the tenant to continue to occupy the property beyond the expiry of the notice. This unless the authority is taking steps to persuade the landlord to withdraw the notice or delay proceedings to allow the tenant to secure alternative accommodation.[25]

Authorities should treat cases where the applicant has received a valid notice as threatened with homelessness and take reasonable steps to help to prevent homelessness.

Threatened homelessness

A person is threatened with homelessness if it is likely that s/he will become homeless within 56 days.[26] In practice most applicants will be threatened with homelessness when they apply for help, rather than when actually homeless.

Authorities must act immediately to assess their housing needs and provide assistance to prevent homelessness if they are eligible.[27]

Former members of 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 directly on discharge from the forces or later on in their lives. The Pathway provides advice for anyone due to leave the armed forces and their dependents, regardless of whether they are a reservist or a regular member of the armed forces, being discharged early or on medical grounds. A local authority will have a duty to help former members of the forces who are at risk of losing accommodation or are homeless, including the ex-spouses/partners of service personnel and the recently bereaved spouses/partners.

Right to internal review

Applicants dissatisfied with decisions of the local authority about whether they are homeless or threatened with homelessness have a right to request a review within 21 days.

Applications made before 27 April 2015

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.

[1] s.55(1) Housing (Wales) Act 2014.

[2] s.56(1) Housing (Wales) Act 2014.

[3] s.82(2) Housing Act 1985; s.5(1A) Housing Act 1988; s.3 Protection from Eviction Act 1977.

[4] para 8.14 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[5] para 8.11 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[6] para 8.12 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[7] s.55(2)(a) Housing (Wales) Act 2014.

[8] para 8.17 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[9] s.55(2)(b) Housing (Wales) Act 2014.

[10] s.55(3) Housing (Wales) Act 2014.

[11] s.57 Housing (Wales) Act 2014.

[12] para. 8.31 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[13] s.57(1) Housing (Wales) Act 2014.

[14] s.58(1) Housing (Wales) Act 2014.

[15] paras 8.22-8.24 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[16] s.58(1) Housing (Wales) Act 2014.

[17] para 8.21 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[18] s.58(2)-(5) Housing (Wales) Act 2014.

[19] paras 8.23-8.25 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[20] para 8.29 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[21] para 8.30, Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[22] para 8.27, Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[23] Birmingham CC v Ali and others: Moran v Manchester CC [2009] UKHL 36.

[24] para 8.31 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[25] para 8.31 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[26] s.55(4) Housing (Wales) Act 2014.

[27] para 8.4 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

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