Homeless applicants with accommodation not reasonable to occupy
The definition of homelessness where accommodation is not reasonable to continue to occupy.
- When accommodation is not reasonable to continue to occupy
- Reasonableness over time
- General housing circumstances in area
- Affordability of rent or mortgage
- Physical condition of property
- Disability or illness
- Reasonableness v suitability
- Type of accommodation
- Valid notice served
- Applications made before 3 April 2018
When accommodation is not reasonable to continue to occupy
An applicant must be treated as homeless, regardless of availability and legal rights to occupy accommodation, if it is not reasonable for them to continue to occupy the accommodation.
Accommodation can be unreasonable to continue to occupy for any number of reasons, including:
physical conditions of the accommodation
risk of violence from any person
Some of the factors which local authorities should consider are referred to in the Homelessness Code of Guidance and in case law, including cases concerning intentional homelessness, and whether accommodation offered in discharge of homelessness duties is suitable. The same principles and case law apply in all three contexts.
Reasonableness over time
The House of Lords has held that 'reasonable to continue to occupy' is to be looked at over time. As such it is possible for an applicant to be statutorily homeless and it could be reasonable for them to remain where they are for the short, or even medium term, while the local authority takes steps to secure other accommodation. How long it would be reasonable for them to remain depends on the applicant's particular circumstances.
The Court of Appeal spelled out the 'reasonable over time' test in a case where the impending birth of the applicant's second child had a bearing on the suitability of the family's accommodation: 'First, taking account both of the present circumstances of the appellant and her family and of her pregnancy with the birth (of a second child) due in October 2016, was she "homeless", i.e. was it reasonable, looking to the foreseeable future as well as the present, for them to continue to occupy the flat? Second, if the answer was in the negative, how long in the short term was it reasonable for them to continue to occupy the flat and, in the light of that period, would they be able to obtain suitable accommodation in that period through the operation of the housing list.
General housing circumstances in area
In considering whether it is reasonable for an applicant to continue to occupy accommodation, a local authority may have regard to the general housing circumstances prevailing in the area – for example the local standards found in houses in multiple occupation – when deciding whether accommodation is reasonable to continue to occupy.
In considering whether it is reasonable for a disabled applicant to continue to occupy accommodation, a local authority must also satisfy the public sector equality duty. When considering the general circumstances relating to housing in its area, it must focus sharply on the applicant's particular disabilities, the severe consequences of remaining in the current accommodation, and the local authority's need to take steps to meet the different needs of a disabled person as compared to those who are not.
A non-binding county court decision held that this was not a comparative exercise, ie the local authority could not find that it was reasonable for the applicant to continue to occupy the home because others in the area were worse off than she was. Rather the authority could use its experience of housing conditions in its area as part of its assessment of general housing circumstances.
Affordability of rent or mortgage
The same test of affordability is also applied in deciding whether an applicant is intentionally homeless, and in deciding whether accommodation offered in discharge of the local authority's homelessness duty is suitable.
In particular the authority needs to consider:
the financial resources of the applicant such as wages and benefits
all the costs of accommodation
maintenance payments (in respect of ex-family members) and
other reasonable living expenses
How other reasonable living expenses are assessed can present some difficulty. However, the courts have indicated that it cannot be reasonable to expect someone to continue to occupy accommodation when they cannot discharge their financial obligations without depriving themselves of the ordinary necessities of life, such as food, clothing, heat, transport etc.
Physical condition of property
The following factors are relevant in deciding whether it is reasonable for someone to continue to occupy current accommodation:
damp conditions that could affect the applicant's health, particularly if medical advisers have advised the applicant not to return
unsafe accommodation – such as a flat in a house in multiple occupation with no adequate means of escape from fire – has been held to be reasonable to continue to occupy where the local authority was taking active steps to enforce safety standards However, in a case where the applicant was a heavily pregnant woman in a bedsit in serious disrepair with no fire escape, and no such steps were being taken, an injunction was granted to provide accommodation until the court heard the case
the physical conditions of the accommodation may also be related to the length of time the applicant has lived there. The courts have held that people may be expected to put up with relatively poor conditions on a temporary basis, but there will come a time when it is no longer reasonable to expect them to continue to occupy such accommodation
Accommodation that was reasonable to occupy at one time may not always be so if the applicant's circumstances change, for example, if someone sustains a disability by an accident, or they needed a carer but there was insufficient space for another person.
The Code says authorities should ask whether the physical characteristics make it unsuitable for the applicant, for example a wheelchair user. Other examples might be where the household size has grown, or the state of the property has deteriorated significantly.
Disability or illness
Medical issues such as a person's physical ability to cope with living in a home on a steep hill are relevant to deciding whether it is reasonable for someone to continue to occupy.
Other chronic illnesses, such as HIV/AIDs or cancer, may affect whether or not a property is reasonable for someone to occupy as their housing needs may be more complex.
Where a person has care or support needs that are not being met, they can request a needs assessment under the Care Act 2014.
The public sector equality duty requires local authorities to focus sharply on the applicant's particular disabilities, on the consequences of remaining in the current accommodation, and on the need for the local authority to take steps to meet the different needs of a disabled person.
The court has held that overcrowding cannot be disregarded just because it does not constitute statutory overcrowding.
Reasonableness to occupy is not limited to statutory factors; non-statutory overcrowding should also be considered.
The Code of Guidance states that overcrowding should be considered within the context of the general housing circumstances in the area, therefore statutory overcrowding does not automatically mean that it is unreasonable for a family to continue to occupy. The Court of Appeal upheld a review decision where the local authority took the prevailing housing conditions in the borough into account. The local authority had taken overcrowding into consideration but had rightly held that it was possible for such accommodation to be suitable, in particular where households with greater overcrowding problems were situated in the locality, so that a household would not be considered homeless.
The Court of Appeal held when the premises were assessed as statutorily overcrowded it was necessary for the local authority to consider both the room standard and the space standard contained in sections 325-326 of the Act.
Reasonableness v suitability
The Court of Appeal has distinguished between the requirement on a local authority to consider whether accommodation is:
reasonable to continue to occupy for the purposes of determining whether an applicant is homeless
'suitable' for the purposes of the provision of accommodation when discharging its duty
The Court held that whilst in deciding whether accommodation is suitable requires the local authority to have regard to Parts 9 and 10 of the Housing Act 1985 (slum clearance and overcrowding) and Parts 1 to 4 of the Housing Act 2004 (the Housing Health and Safety Rating System for assessing housing conditions), a hazard assessment does not have to be carried out when considering reasonableness (although any existing hazard assessment would have to be taken into account).
Type of accommodation
The House of Lords has held that women's refuges are a safe haven for those fleeing domestic violence and should not be treated as places which it is reasonable to continue to occupy, and 'women will be homeless while they are in the refuge…'.
The Code of Guidance also states that some types of accommodation such as nightshelters, direct access hostels and women's refuges are intended to provide very short-term temporary accommodation in a crisis and should not be regarded as reasonable to continue to occupy in the medium or long term. The same principle has been held to apply to accommodation in a house provided by a local authority under an assured shorthold tenancy to a woman assessed as being at risk of domestic violence.
The High Court declined to give general guidance on how local authorities should treat homelessness applications from pregnant women living in single person hostels.
Valid notice served
If it is clear that an applicant with limited security of tenure has been given notice to leave their accommodation and has no defence to possession proceedings, an authority should assess whether it is reasonable for them to continue to occupy pending the proceedings because the applicant has no legal right to occupy
Where an occupier's security of tenure means that the landlord can only evict (by obtaining a bailiff's warrant) after a court has made a possession order, the occupier retains a legal right to occupy until the point that a possession order is enforced. A local authority should not adopt a blanket policy of refusing (or accepting) such occupiers only when the court order has been obtained.
In determining whether or not it is reasonable for an applicant to continue to occupy accommodation after receiving valid notice to leave, the authority should consider:
the general cost to the housing authority
the position of the tenant
the position of the landlord
whether the landlord will actually proceed with seeking possession
the burden on the courts of unnecessary court proceedings where there is no defence to possession
Case law supports the above approach.
It is highly unlikely to be reasonable for an applicant to continue to occupy a property beyond the date that a court has ordered possession to be returned to the landlord (ie until the point at which a warrant or writ of possession is awarded to enable the landlord to lawfully evict using court-appointed bailiffs.
Assured shorthold tenancies
The Code gives clear guidance on how to deal with applicants asked to leave assured shorthold tenancies. The Secretary of State considers it is unlikely to be reasonable for an applicant to remain in accommodation after the expiry of a notice of proceedings for possession where all of the following conditions are met:
the applicant is an assured shorthold tenant and has received proper valid notice on the grounds of it being a shorthold tenancy
the authority are satisfied that the landlord intends to go ahead with seeking possession
there is no defence to the possession claim
The only exception to this might be where the authority is trying to persuade the landlord to allow the tenant to remain in occupation for a reasonable period to provide the authority time to help secure alternative accommodation under its duty to prevent homelessness.
Briefing paper Applying as homeless from an assured shorthold tenancy (England) gives an overview of how a local authority should deal with a private tenant who has been served with a valid section 21 notice.
Applications made before 3 April 2018
The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references here are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.
Last updated: 16 March 2021
s.175(3) Housing Act 1996.
Birmingham CC v Ali and others: Moran V Manchester CC  UKHL 36; Temur v Hackney LBC  EWCA Civ 877.
Safi v Sandwell BC  EWCA Civ 2876.
R v Brent LBC, ex parte Bariise (1998) 30 HLR 518, CA.
s.177(2) Housing Act 1996; paras 6.25 to 6.27 Homelessness Code of Guidance, MHCLG, Feb 2018;
Lomax v Gosport BC  EWCA Civ 1846.
Chawa v Kensington and Chelsea RLBC, Central London CC, 19 July 2011, Legal Action January 2012.
Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204; Odunsi v Brent LBC  Willesden CC, Legal Action August 1999; Carthew v Exeter CC  EWCA 1913.
R v Tower Hamlets LBC, ex parte Kaur, Ali et al (1994) 26 HLR 5997, QBD.
paras 6.28,17.44 and 17.45 Homelessness Code of Guidance, MHCLG, Feb 2018.
R v Hillingdon LBC, ex parte Tinn (1988) 20 HLR 305, QBD.
R v Medina BC, ex parte Dee (1992) 24 HLR 562, QBD.
R v Kensington and Chelsea RLBC, ex parte Ben-el-Mabrouk (1995) 27 HLR 564, CA.
R v Haringey LBC, ex parte Flynn  QBD, Legal Action, June 1995.
R v Brent LBC, ex parte Awua  1 AC 55 ,  3 All ER 493, HL; R (on the application of Khan) v Newham LBC  EWHC Admin 589, Legal Action October 2001.
para 6.39(a) Homelessness Code of Guidance, MHCLG, Feb 2018.
R v Wycombe DC, ex parte Homes (1990) 22 HLR 150, QBD.
Lomax v Gosport BC  EWCA Civ 1846.
R v Westminster CC, ex parte Alouat (1989) 21 HLR 477, QBD; R v Westminster CC, ex parte Ali (1983) 11 HLR 83, QBD.
para 6.27 Homelessness Code of Guidance, MHCLG, Feb 2018; Harouki v Kensington and Chelsea RLBC  EWCA Civ 1000.
Harouki v Kensington and Chelsea RLBC  EWCA Civ 1000.
Elrify v Westminster CC  EWCA Civ 332.
Temur v Hackney LBC  EWCA Civ 877.
s.210(1) Housing Act 1996.
Birmingham CC v Ali and others: Moran V Manchester CC  UKHL 36.
para 6.39(b) Homelessness Code of Guidance, MHCLG, Feb 2018.
Windsor and Maidenhead RBC v Hemans  EWCA Civ 374.
R (on the application of McKenzie) v Waltham Forest LBC  EWHC 1097 (Admin).
para 6.33 Homelessness Code of Guidance, MHCLG, Feb 2018.
paras 6.17 to 6.19 and para 6.33 Homelessness Code of Guidance, MHCLG, Feb 2018.
R v Croydon LBC ex parte Jarvis (1994) 26 HLR 194, QBD.
paras 6.36 and 6.37 Homelessness Code of Guidance, MHCLG, Feb 2018.
para 6.32 to 6.38 Homelessness Code of Guidance, MHCLG, Feb 2018.
para 6.35 Homelessness Code of Guidance, MHCLG, Feb 2018.
para 6.32 Homelessness Code of Guidance, MHCLG, Feb 2018.