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A deliberate act or omission

This content applies to England

An explanation of what is meant by a deliberate act or omission.

In considering intentional homelessness the authority must be able to identify an act or omission that is deliberate and must always give the applicant an opportunity to explain her/his actions.[1] The same conduct may be capable of being described as both an act or an omission.

The intention to carry out an act must be established for an act to be deliberate. So, for example, losing tied accommodation as a result of being dismissed for incompetence would not be considered a deliberate act, whereas dismissal for theft normally would be.[2]

Acts generally regarded as deliberate

The Homelessness Code of Guidance suggests that acts or omissions that may be regarded as deliberate could include:[3]

  • where a person sells her/his home and there is no risk of losing it, or has lost it because of wilful and persistent refusal to make rent or mortgage payments
  • where someone has significantly neglected her/his affairs having disregarded sound advice from qualified persons
  • voluntary surrender of adequate accommodation, in the UK or abroad, which it would have been reasonable to continue to occupy
  • where someone is evicted because of antisocial behaviour, such as nuisance or harassment
  • where someone is evicted because of her/his violence towards another person
  • where someone leaves a job with tied accommodation where it would have been reasonable to continue in the employment and reasonable to continue to occupy the accommodation.

Acts generally not regarded as deliberate

However, the Code of Guidance also states that the action or omission should not generally be considered deliberate where:[4]

  • the act or omission was non-payment of rent or mortgage costs resulting from welfare benefit delays or other financial difficulties which were beyond the applicant's control
  • the applicant is not capable of managing her/his own affairs, for example because of age or mental illness or disability
  • the act or omission was a result of limited mental capacity or the result of temporary aberrations caused by mental illness, frailty, or an assessed substance misuse problem
  • the act or omission was carried out while the applicant was under duress
  • there was imprudence or lack of foresight on the part of the applicant, but the act was in good faith.

Rent or mortgage arrears

Findings of intentionality may arise where a person has lost accommodation as a result of rent or mortgage arrears, for example where s/he persistently failed to provide documentation necessary for the processing of a benefit claim and failed to make up the shortfall between rent and benefits.[5]

The Homelessness Code of Guidance suggests that acts or omissions that may be regarded as deliberate could include the wilful and persistent refusal to make rent or mortgage payments.[6]

Affordability

Local authorities must consider whether the accommodation was affordable for the applicant when deciding whether it would be (or would have been) reasonable for her/him to continue to occupy the accommodation, ie was the applicant able to pay her/his housing costs and her/his ‘other reasonable living expenses’?[7] The Code states that an applicant's actions may not amount to intentional homelessness where s/he has lost her/his home or been obliged to sell it when:[8]

  • the arrears were due to significant financial difficulties
  • the applicant was genuinely unable to keep up rent or mortgage payments even with the help of benefits
  • no further financial help was available.

Where an applicant has lost her/his former home due to rent or mortgage arrears, the reasons for those arrears should be fully explored. This includes consideration of the applicant's ability to pay those costs when the tenancy or mortgage was taken on.[9]

Deliberate act

As a general rule, a person cannot be found to be intentionally homeless from accommodation which was not reasonable to continue to occupy.[10] However, a local authority can look to see if the person is intentionally homeless as a consequence of her/his entering into an unaffordable arrangement. As such, the deliberate act that caused the homelessness may not be the failure to make mortgage/rent payments but the taking out of an unaffordable loan or the entering into an unaffordable tenancy agreement.[11] In such a case it will be the loss of the accommodation that was occupied prior to taking on the unaffordable property that is subject to the finding of intentional homelessness.

Where there is more than one cause of homelessness, it is sufficient that at least one of them was a deliberate act or omission by the applicant: where a homeless applicant entered into a tenancy that he could not afford, his deliberate omission to inform the benefit department when his partner and child moved in with him constituted a deliberate act causing homelessness because that information would have resulted in increased benefit and prevented him losing the tenancy.[12]

In another case, where a homeless applicant had refused her landlord's offer of help finding a new joint tenant with whom to share the rent liability, this was a deliberate act/omission.[13]

Where a landlord gains possession of an assured shorthold tenancy after serving a section 21 notice (which enables a landlord to regain possession of a property without having to specify a reason or ground - see Assured shorthold tenancies for more information), it is open to the authority to look at the reason why the landlord sought possession. Where the assured shorthold tenant's deliberate failure to pay the rent was the reason (or one of the reasons) why the landlord served a section 21 notice and subsequently obtained a possession order, a finding of intentional homelessness was upheld in the courts.[14]

Good faith

If the applicant acted in good faith in taking out a mortgage that proved to be unaffordable s/he may not be found to be intentionally homeless.[15]

For more information see Acting in good faith.

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

[1] para 9.16 Homelessness Code of Guidance, MHCLG, Feb 2018.

[2] R v Thurrock BC, ex parte Williams (1981) 1 HLR 128, QBD.

[3] para 9.20 Homelessness Code of Guidance, MHCLG, Feb 2018.

[4] para 9.17 Homelessness Code of Guidance, MHCLG, Feb 2018.

[5] Oduneye v Brent LBC [2018] EWCA Civ 1595.

[6] para 9.20 Homelessness Code of Guidance, MHCLG, Feb 2018.

[7] Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204.

[8] para 9.18 Homelessness Code of Guidance, MHCLG, Feb 2018.

[9] para 9.19 Homelessness Code of Guidance, MHCLG, Feb 2018.

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

[11] R v Barnet LBC ex parte Rughooputh (1993) 25 HLR 607, CA; R v Wandsworth LBC ex parte Onwudiwe (1994) 26 HLR 302, CA.

[12] Noel & Anor v Hillingdon LBC [2013] EWCA Civ 1602.

[13] Viackiene v Tower Hamlets LBC [2013] EWCA Civ 1764.

[14] Bratton v Croydon LBC [2002] EWCA Civ 1494; Najim v Enfield LBC [2015] EWCA Civ 319.

[15] R v Hammersmith & Fulham LBC ex parte Lusi (1991) 23 HLR 260, QBD.

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