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Wales: intentional homelessness

This content applies to Wales

The legal definition of intentional homelessness, and how and when authorities should apply this test under Part 2 of the Housing (Wales) Act 2014.

Definition of intentional homelessness

An applicant can be found to be intentionally homeless if s/he has deliberately done, or failed to do, anything in consequence of which s/he has ceased to occupy accommodation which was:[1]

  • available for occupation, and
  • reasonable to continue to occupy.

Acquiescence

An applicant can be found to be intentionally homeless if s/he acquiesced to the deliberate act or omission of another person.[2] The case law on acquiescence developed under the Housing Act 1996 should remain binding in analogous decisions under the Housing (Wales) Act 2014.

Collusion

An applicant can be found to be intentionally homeless if s/he has entered into an arrangement which required her/him to cease to occupy accommodation which would have been reasonable to continue to occupy, and the arrangement was for the purpose of becoming entitled to homelessness assistance. The authority must be satisfied that the arrangement exists and not merely rely on hearsay or unfounded suspicions.[3]

Deliberate act or omission

The Code of Guidance for Local Authorities in Wales contains detailed guidance on what may or may not be regarded as a deliberate act or omission.[4]

The list of deliberate acts or omissions developed under the Housing Act 1996 and related Code of Guidance is replicated in the Welsh Code. The related case law should remain binding in analogous decisions under the Housing (Wales) Act 2014.

Good faith

An act or omission made in good faith by an applicant who was genuinely unaware of relevant facts must not be regarded as deliberate.[5]

The meaning of acting in good faith developed under the Housing Act 1996 and related Code of Guidance is replicated in the Welsh Code. The related case law should remain binding in analogous decisions under the Housing (Wales) Act 2014.

Causation

Authorities must clearly identify the causal link between the deliberate act or omission of the applicant and the loss of accommodation. The case law on causation developed under the Housing Act 1996 should remain binding in analogous decisions under the Housing (Wales) Act 2014.

Ceasing to occupy accommodation

To be found intentionally homeless an applicant must have ceased to occupy accommodation that was both:

  • available, and
  • reasonable to continue to occupy.

‘Available’ and ‘not reasonable to continue to occupy’ in this context have the same meanings as when considering whether an applicant is homeless or threatened with homelessness.

Refusal of suitable accommodation

If an applicant refuses suitable interim accommodation whilst subject to the interim accommodation duty it can lead to the end of that duty and the applicant will need to make their own short-term arrangements. If the applicant remains subject to a ‘help to secure’ duty and is subsequently assessed for the final duty, s/he cannot be found intentionally homeless purely on the basis that they have refused or lost suitable interim accommodation. The authority must decide whether they are intentionally homeless in the circumstances which gave rise to the application.[6]

Refusal of suitable accommodation whilst subject to a ‘help to prevent’ duty should not automatically lead to an applicant being found to be intentionally homeless at a later stage, but it may do if, for example, it leads to a breakdown in mediation attempts by the authority and the applicant subsequently becoming homeless.

Having regard to intentionality

The Housing (Wales) Act 2014 allows an authority to decide whether it will apply the intentionality test to particular classes of applicant or not. If an authority decides to have regard to intentionality, it can only consider it when deciding if:

Final duty

Authorities cannot take into consideration intentionality when deciding whether they owe a final duty to a homeless applicant unless:[7]

  • the applicant falls into a category specified by the Welsh Ministers in regulations (currently all priority need categories are specified[8]) and
  • the authority has published a notice of its decision to have regard to intentionality for this category of applicants.

The written notice to the Welsh Minister must:[9]

  • list the specified categories of applicants, and
  • give reasons for having regard to those categories.

If an applicant falls into one of the categories specified by the authority, then the intentionality test must be applied.[10] To reduce bureaucracy and uncertainty for applicants, authorities can only revise their list of categories twice in any 12-month period.[11]

The notice must be published on the authority's website and in the housing office.[12]

Intentionality and local connection

In the case of a local connection referral, authorities must still consider intentionality even if the applicant and her/his household fall within a priority need category that they had not specified in the notice to the Welsh Ministers.[13]

‘Minded to’ letters

If at an earlier stage of the homelessness assessment it becomes clear that an applicant could later be found to be intentionally homeless, the authority should write to the applicant and explain the possible consequences of that decision. This will give the applicant more time to provide further explanation or evidence, and to make informed and realistic choices.[14]

Household with dependent children

When an authority has reason to believe that there are dependent children in the applicant’s household, but is 'minded to' find the applicant intentionally homeless, it should ask the applicant’s consent for her/his case to be referred to social services.[15] In exceptional circumstances, a referral can be made without the applicant’s consent if there are concerns about a child’s welfare.[16]

Interim accommodation duty

When an authority decides that it does not owe a final duty to an intentionally homeless applicant, it will still be under a duty to provide interim accommodation for a sufficient period, beginning on the day that the applicant is notified that s/he is not owed the final duty. The sufficient period must be of at least 56 days from the date that the applicant was notified that s/he was owed a ‘help to secure’ duty.[17] This is to give the applicant a reasonable opportunity to find alternative accommodation.

Authorities must consider each case on its merits when determining the sufficient period and take into account the resources available to the applicant. They should also continue to offer advice and assistance to the applicant, for example a rent deposit or guarantee.[18]

Fresh applications

There is no fixed period of disqualification if an applicant wants to reapply as homeless after s/he has been found to be intentionally homeless. However, the authority’s duty to assess will not arise unless:[19]

  • there has been a material change in circumstances, or
  • the applicant has new information which materially affects the previous assessment.

It is for the applicant to identify the material change in circumstances or new information and for the authority to compare the applicant’s factual circumstances at the date of the re-application against those at the date of the previous decision. New facts, that are not trivial, should trigger a new duty to assess.[20]

Settled accommodation

If an applicant has secured intervening settled accommodation since their previous application, then this will be a material change in circumstances.

There is no statutory definition of settled accommodation but the case law developed under the Housing Act 1996 and related Code of Guidance (see Causation) should continue to be persuasive in analogous decisions under the Housing (Wales) Act 2014.

Application to another authority

An applicant can re-apply as homeless to a different authority after a finding of intentionality. The new authority will have a duty to assess the applicant. It is entitled to consider any relevant information from the previous authority, but it must make its own enquiries and reach a decision as to whether it owes any duty to the applicant.[21]

Right to internal review

Applicants dissatisfied with decisions of the local authority about whether they are intentionally 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.77(2)-(3) Housing (Wales) Act 2014.

[2] para 17.13 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[3] s.77(4) Housing (Wales) Act 2014; para 17.30 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[4] paras 17.15 to 17.26 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[5] s.77(3) Housing (Wales) Act 2014; paras 17.24 to17.26 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[6] s.75(2)(d), Housing (Wales) Act 2014.

[7] s.78(2) Housing (Wales) Act 2014.

[8] reg. 2 Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 SI 2015/1265.

[9] reg. 3 Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 SI 2015/1265.

[10] s.78(2) Housing (Wales) Act 2014.

[11] reg. 6 Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 SI 2015/1265.

[12] reg. 2 Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 SI 2015/1265.

[13] s.80(1) Housing (Wales) Act 2014; para 17.40 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[14] para 17.35 Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[15] s.96(2) Housing (Wales) Act 2014.

[16] para 17.49, Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness, Welsh Government, March 2016.

[17] s.75(3) Housing (Wales) Act 2014; art. 2(3) Housing (Wales) Act 2014 (Commencement No. 7) Order 2016 SI 2016/1009.

[18] s.69(5)-(6) Housing (Wales) Act 2014.

[19] s.62(2) Housing (Wales) Act 2014.

[20] Tower Hamlets LBC v Begum [2005] EWCA Civ 340.

[21] Eren v Haringey LBC [2007] EWCA Civ 409.

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