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Wales: final duty

This content applies to Wales

The final housing duty owed to some homeless applicants under Part 2 of the Housing (Wales) Act 2014.

Final duty

The final duty can only arise in respect of applicants who were previously owed a ‘help to secure’ duty. The final duty will arise when the ‘help to secure’ duty comes to an end:

  • because the 56-day time limit has elapsed, or
  • before the 56-day time limit because the authority considers it has already taken all reasonable steps to help the applicant to secure accommodation.

The final duty will not arise when the ‘help to secure’ duty comes to an end because the applicant has accepted or refused a suitable offer of accommodation (see below).

Under the final duty, a local authority must secure that suitable accommodation is available for the applicant and her/his household, if satisfied that the applicant:[1]

  • does not have suitable accommodation available for occupation for at least six months from the date that s/he received the notice of end of the ‘help to secure’ duty
  • is eligible for help
  • has a priority need for accommodation, and
  • is unintentionally homeless (but only where the authority is having regard to intentionality and for permitted categories of applicants).

In appropriate cases, the applicant would have already been helped under a ‘help to prevent’ duty. The reasonable steps already taken by the local authority will mean that considerable work will have been completed and a successful solution found. Thus the final duty will arise in respect of only a limited number of applicants.[2]

Reviewing the homelessness assessment

Under the final duty, the authority must review the applicant’s case at the end of the ‘help to secure’ duty[3] and notify to the applicant if s/he is owed the final duty or not. If a final duty is not owed the notifice must contain reasons and inform the applicant of the right to a review of the decision within 21 days.[4]

The authority may not be in a position to decide whether it owes a final duty immediately following the ending of the ‘help to secure’ duty, as it needs to satisfy itself that the applicant has a priority need for accommodation and is unintentionally homelessness (if s/he is not exempt from the intentionality test).

Whilst the Welsh government recommends 10 working days between decisions as a guide, arriving at the correct decision is paramount. Relevant evidence can be gathered during the ‘help to secure’ stage as long as no decision is taken as to priority need and intentionality until the applicant is being assessed for the final duty.[5]

Interim accommodation pending decision on final duty

If the applicant was owed an interim accommodation duty this will continue until the applicant is notified as to whether a final duty is owed.[6]

Priority need

The authority will already have decided whether there is reason to believe that the applicant may be in priority need when considering whether it had the interim accommodation duty. The authority will be able to use the evidence already gathered during the ongoing assessment but, at this stage, it will need to be satisfied that the applicant is in a priority need category.

Where age is the determining factor for priority need, it will be the age at the date of application which is relevant, not the age at the date of the reassessment or the decision.[7]

Intentionality

The authority can choose whether or not to look into whether the applicant is intentionality homeless.[8]

It is likely that the authority will have formed an opinion as to whether the applicant may be intentionally homeless at an earlier stage of the assessment, so it should already have informed the applicant by letter that it is minded to find her/him intentionally homeless, the reasons why and what the consequences of that decision could be.

See Wales: intentional homelessness for more information on:

  • legal definition of intentional homelessness
  • authorities’ discretion to have regard to intentionality
  • issuing ‘minded to’ letters prior to making a decision on intentionality.

Local connection

There is no opportunity for the authority to enquire into local connection or make a local connection referral at the final duty stage as, if appropriate, a referral will have been made at an earlier stage, ie before accepting a ‘help to secure’ duty.

Circumstances in which the duty ends

The final duty is an absolute duty to secure that suitable accommodation is available for occupation by the applicant and her/his household.

Applicants may be placed in suitable temporary accommodation pending an offer of settled accommodation.

The final duty is an ongoing duty which will last until brought to an end in one of the specified circumstances below.

See Wales: suitability of accommodation for more details about deciding whether accommodation is suitable.

Acceptance of suitable accommodation

The final duty comes to an end if the applicant accepts an offer of suitable accommodation under:[9]

  • Part 6 of the Housing Act 1996 (an allocation of social housing), or
  • an assured tenancy (including an assured shorthold tenancy).

The authority can discharge the duty with a suitable private rented sector offer so an applicant will not necessarily end up with a Part 6 offer, although s/he should receive reasonable preference under the authority’s allocation scheme whilst s/he is subject to the final duty.[10]

A Part 6 offer would include an offer of a secure or introductory tenancy from a local authority or an assured or assured shorthold tenancy from a registered social landlord via the authority’s allocation scheme.

An offer of an assured or assured shorthold tenancy may be made by a registered social landlord or by a private rented sector landlord.The Code of Guidance for Local Authorities in Wales states that the tenancy must, however, be for a minimum period of at least six months.[11] If a private let is accepted by the applicant and is suitable, it does not have to meet the requirements of a ‘private rented sector offer’ (see below).

Refusal of suitable temporary accommodation

The final duty comes to an end if the applicant, having been informed of the possible consequences of refusal or acceptance and of her/his right to request a suitability review,[12] refuses an offer of suitable temporary accommodation.

The Code of Guidance suggests that the refusal of suitable temporary accommodation should only result in the end of the final duty if there is no other suitable accommodation available for occupation by the applicant pending a settled housing solution.[13] However, in most cases, it would be prudent for an applicant to accept the offer of temporary accommodation and seek a review of suitability rather than refuse it outright.

Refusal of Part 6 offer

The final duty comes to an end if the applicant, having been informed of the possible consequences of refusal or acceptance and of her/his right to request a suitability review,[14] refuses a suitable offer of social housing under Part 6 of the Housing Act 1996.

A Part 6 offer should be made in writing and state that:[15]

  • the offer is a final offer,
  • the authority is satisfied the accommodation is suitable, and
  • it would be reasonable for the applicant to accept the offer.

Refusal of private rented sector offer

The final duty comes to an end if the applicant, having been informed of the possible consequences of refusal or acceptance and of her/his right to request a suitability review,[16] refuses a suitable private rented sector offer.

A private rented sector offer is:[17]

  • an offer of an assured shorthold tenancy with a fixed-term of at least six months from a private landlord
  • arranged by, and made with the approval of, the local authority with a view to bringing the final duty to an end.

Accommodation will not be suitable for the purposes of a private rented sector offer unless the authority is of the view that the:[18]

  • accommodation is in reasonable physical condition and complies with all statutory requirements (including, where applicable, requirements relating to fire, gas, electrical, carbon monoxide and other safety; planning; and licences for houses in multiple occupation)
  • landlord is a fit and proper person.

A private rented sector offer should be made in writing and state that:[19]

  • it is a final offer
  • the authority is satisfied that the accommodation is suitable
  • the accommodation would be available for a minimum of six months, and
  • it would be reasonable for the applicant to accept the offer.

Restricted cases

In a restricted case, the authority must bring the duty to an end by way of a private rented sector offer so far as reasonably practicable.[20]

A restricted case is where the authority would not have been satisfied as to homelessness or priority need without having regard to a restricted person.

A restricted person means a person who is subject to immigration control and:

  • does not have leave to enter or remain in the UK, or
  • has leave to enter or remain which is subject to a ‘no recourse to public funds’ condition.

Restricted cases are, therefore, households with mixed immigration status. There will be an eligible applicant who must be a British citizen, EEA national or Commonwealth citizen with right of abode, but homelessness or priority need will have been conferred by ineligible household members.

See Wales: eligibility for help for more information on households with mixed immigration status.

Other circumstances where the will duty end

The final duty will also end if the applicant:[21]

  • becomes homeless intentionally from suitable temporary accommodation
  • voluntarily ceases to occupy suitable temporary accommodation as her/his only or principal home
  • becomes ineligible for help
  • is notified that a mistake of fact led to the duty arising in the first place
  • withdraws the application
  • unreasonably fails to co-operate with the authority

Notice of end of duty

In all cases where a local authority decides that its final duty has ended, it must send a notice of end of duty to the applicant. Dissatisfied applicants have a right to request a review of the authority's decision within 21 days.

Flowchart

A useful flowchart, with a visual map of all stages of the final duty, can be found at the end of Annex 19 of the Code of Guidance for Local Authorities in Wales.

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.75(1)-(2) Housing (Wales) Act 2014.

[2] para 14.1 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[3] s.62(9) Housing (Wales) Act 2014.

[4] s.63 Housing (Wales) Act 2014.

[5] para 14.8 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[6] s.69(3) Housing (Wales) Act 2014.

[7] s.70 Housing (Wales) Act 2014; para 14.9 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[8] s.78 Housing (Wales) Act 2014.

[9] s.76(2) Housing (Wales) Act 2014

[10] s.167(2) Housing Act 1996, as amended by para 3 Sch.3 Housing (Wales) Act 2014.

[11] para 15.62 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[12] s.76(3)(a) and s.85(3) Housing (Wales) Act 2014.

[13] para 15.63 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[14] s.76(3)(c) and s.85(3) Housing (Wales) Act 2014.

[15] paras 15.65 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[16] s.76(3)(b) and s.85(3) Housing (Wales) Act 2014.

[17] s.76(4) Housing (Wales) Act 2014.

[18] art. 8 Homelessness (Suitability of Accommodation) (Wales) Order 2015 SI 2015/1268.

[19] paras 15.64 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[20] s.76(5) Housing (Wales) Act 2014.

[21] s.76(6)-(8) Housing (Wales) Act 2014.

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