Homeless applicants with accommodation that is not reasonable to occupy

A person is homeless if it is not reasonable for them to continue to occupy their accommodation.

This content applies to England

When accommodation is not reasonable to continue to occupy

A local authority must accept a homeless application if it has reason to believe a person might be homeless or threatened with homelessness.[1]

A person is homeless if they have no accommodation available to them that they have a right to occupy.

Someone with accommodation is homeless if it is not reasonable for them to continue to occupy that accommodation.[2] This can include if it is:

  • unaffordable

  • in poor condition

  • overcrowded

  • a refuge or other short term accommodation

Where the landlord or lender has given notice or brought possession proceedings, the local authority might need to consider if it is reasonable for the person to remain there until they are evicted.

Accommodation is not reasonable to continue to occupy if by remaining there the person is at risk of violence or domestic abuse.

Reasonability and intentional homelessness

A local authority can decide that a person is intentionally homeless if they deliberately did or failed to do something that led to them losing accommodation that was otherwise available and reasonable to occupy. The same test applies as when assessing whether a person is homeless. A person cannot be intentionally homeless from accommodation that was not reasonable to continue to occupy.

Reasonableness and suitability

A local authority must consider some of the same factors when assessing both whether:

  • a person's accommodation is reasonable to continue to occupy

  • an offer of accommodation made as part of a homeless application is suitable

This includes what the authority takes into account in deciding if accommodation is affordable.[3]

The two tests are separate. Accommodation might be unreasonable to occupy in the long term, but suitable for short term occupation. Some specific requirements relating to suitability do not apply when assessing if accommodation is reasonable to continue to occupy.

Accommodation which is suitable could still be considered to be not reasonable to continue to occupy.[4]

How the local authority decides what is reasonable

The local authority can take into account the general circumstances in its area when considering whether it is reasonable for a person to continue to occupy accommodation.[5] For example, they can take into account levels of overcrowding, or local HMO standards.

The local authority must consider the circumstances in its own district, even if the applicant’s accommodation is in another local authority’s district.

The authority can only take into account the general circumstances. In one case, the County Court overturned a local authority’s decision which compared an applicant’s overcrowding with that of people on the housing register, rather than in the authority's district.[6]

Reasonableness over time

The local authority must consider whether accommodation is reasonable to continue to occupy over time. A person might be able to put up with relatively poor conditions in the short term but after a longer period it might be no longer reasonable to expect them to continue to occupy the accommodation.[7]

The local authority should look ahead to the foreseeable future as well as the present situation. If the accommodation is unreasonable to occupy over the medium to long term the authority must consider how long in the short term it was reasonable for the person to remain.[8]

A local authority can find that someone is homeless, but that accommodation is suitable for them to remain in the short term while the authority tries to secure other accommodation.[9] This is sometimes referred to as being 'homeless at home'.

Reasonableness of occupation that is not secure

A local authority can treat someone as intentionally homeless if they were evicted from a shared house. The Court of Appeal held that a person who stole items from other residents in a shared house was intentionally homeless even though the accommodation could have been terminated at any time. The applicant could have stayed in the accommodation indefinitely if the thefts had not taken place.[10]

Affordability assessment

A local authority must consider whether accommodation is affordable when deciding if:[11]

Accommodation is not reasonable to occupy if the costs of paying for it means a person cannot pay for other basic essentials.[12]

Basic essentials include food, clothing, heating, transport.[13]

Local authorities may be guided by Universal Credit standard allowances when assessing how much residual income a household would need to meet other essential living costs.[14]

Local authorities must consider a person's actual reasonable expenses when assessing whether accommodation is affordable.[15]

When assessing affordability the authority might ask the person for financial proof, including bank statements. Find out more about applying for and managing a bank account.

A person should prepare and submit a detailed financial statement as part of their written submissions to challenge the suitability of accommodation based on affordability. Any excessive or unusual items of expenditure should be clearly explained, for example where expenditure is higher due to the additional costs of living with a disability.

Debt and money advice

An advice agency can help to prepare the financial statement.

A debt adviser can help someone who finds it difficult to afford accommodation because they have debts or need budgeting help.

Find out more about where to get debt and money advice.

Poor conditions and overcrowding

Accommodation that is in a poor condition or unsafe might be unreasonable for a person to continue to occupy. For example, if a person has been given medical advice not to return because of damp conditions. [16]

Where accommodation is unsafe, it might be reasonable for a person to remain if the local authority is taking active steps to enforce safety standards.[17] In one case the High Court granted an injunction requiring that a local authority provide accommodation to a heavily pregnant woman in a bedsit in serious disrepair with no fire escape. The local authority was taking no steps to deal with the safety issue.[18]

Accommodation can stop being reasonable to occupy if the applicant's circumstances change. For example, if a change in a person's health means they need a carer and there is not sufficient space for another person.

The local authority is not required to carry out a hazard assessment under the Housing Act 2004 when deciding if accommodation is reasonable to occupy.[19] Any identified hazards in the property would be relevant to a decision on whether someone is homeless.

Overcrowding

Accommodation might be unreasonable to continue to occupy if it is overcrowded. The local authority must consider overcrowding even if it does not meet the definition of statutory overcrowding.[20] When assessing premises for statutory overcrowding the authority must consider both the room standard and space standard.[21]

The local authority can take into account the general housing circumstances in the area. Statutory overcrowding does not automatically mean that it is unreasonable for a family to continue to occupy.[22] The Court of Appeal upheld a review decision where the local authority decided overcrowded accommodation was suitable because there were households with greater overcrowding problems in the area.[23]

Disability and illness

Accommodation might be unreasonable for a person to occupy because of a health condition or disability.

This could include where the physical characteristics of a property have an adverse effect on a person because of a disability. For example, if a person uses a wheelchair and they are unable to access the toilet or other facilities.

Where a person has a disability, the local authority must focus sharply on:[24]

  • the person's particular disability

  • the consequences of remaining where they are

  • the need for the local authority to take steps to meet the different needs of a disabled person

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.[25]

Other chronic illnesses, such as HIV/AIDs or cancer can affect whether or not a property is reasonable for someone to occupy as their housing needs might be more complex. This could include where someone is in accommodation with shared facilities and this is a risk to their health.

Refuges and hostels

A person is homeless if they are staying in a domestic violence refuge. 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.[26]

The Code of Guidance states that short term crisis accommodation should not be treated as reasonable to continue to occupy in the medium or long term.[27] This includes refuges, nightshelters and direct access hostels.

Notices and possession proceedings

Most tenants and licensees have a right to occupy their accommodation after a notice is served. The landlord must obtain a possession order and enforce this through a warrant or writ of possession. Where an occupier has been given notice to leave accommodation the authority should consider if it is reasonable for the occupier to remain until they are evicted.

The authority should consider:

  • the general cost to the local authority

  • the position of tenant and landlord

  • whether the landlord will actually proceed with seeking possession

  • the burden on the courts of unnecessary court proceedings where there is no defence

If it is reasonable for the person to occupy their accommodation, the person is not homeless. They are threatened with homelessness if they are likely to become homeless within 56 days.[28] For example, if eviction by bailiffs is due to take place within 56 days.

Some occupiers are excluded from any protection from eviction and can be evicted without a court order. For example, lodgers.[29] An excluded occupier is homeless from the point when their tenancy or licence ends.

Section 21 notices for assured shorthold tenants

A person who has received a valid section 21 notice is threatened with homelessness if it expires within 56 days. Their legal right to occupy the accommodation continues until the landlord obtains a possession order and this is enforced by a warrant or writ.[30]

A local authority should not have a blanket policy on when a person becomes homeless after receiving a section 21 notice.[31] The Code of Guidance states that it is unlikely to be reasonable for an assured shorthold tenant to remain after the expiry of a section 21 notice if the authority is satisfied:[32]

  • the notice is valid

  • the landlord intends to seek possession

  • there is no defence to the possession claim

  • any further efforts to persuade the landlord to let the tenant stay are unlikely to be successful

The exception to this is if the authority is trying to persuade the landlord to allow the tenant to remain for a short time to allow the authority time to help secure alternative accommodation under the prevention duty.

The Code of Guidance states that it is highly unlikely to be reasonable for someone to continue to occupy a property beyond the date that a court has ordered possession to be returned to the landlord . Local authorities should not consider it reasonable for someone to remain in occupation up until the point at which a court issues a warrant or writ to enforce an order for possession.[33]

Tenants of borrowers

A local authority should consider if it is reasonable for a tenant to remain after they have been given notice that their landlord's mortgage lender is bringing possession proceedings because of mortgage arrears. The Code of Guidance states that it is not reasonable to expect the tenant to remain until they are evicted by bailiffs.[34]

Last updated: 27 November 2023

Footnotes

  • [1]

    s.184(1) Housing Act 1996.

  • [2]

    s.175(3) Housing Act 1996.

  • [3]

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

  • [4]

    Ahamed, R (On the Application Of) v London Borough of Haringey [2023] EWCA Civ 975.

  • [5]

    s.177(2) Housing Act 1977.

  • [6]

    Chawa v Kensington and Chelsea Royal London Borough Council (2012) Central London County Court.

  • [7]

    R v Brent LBC, ex parte Awua [1996] 1 AC 55 , [1995] 3 All ER 493, HL; R (on the application of Khan) v Newham LBC [2001] EWHC Admin 589

  • [8]

    Safi v Sandwell BC [2018] EWCA Civ 2876.

  • [9]

    Birmingham CC v Ali and others: Moran V Manchester CC [2009] UKHL 36; Temur v Hackney LBC [2014] EWCA Civ 877.

  • [10]

    Kyle v Coventry City Council [2023] EWCA Civ 1360.

  • [11]

    Homelessness (Suitability of Accommodation) Order 1996/3204; Birmingham CC v Ali and others : Moran v Manchester CC [2009] UKHL 36; Baptie v The Royal Borough of Kingston Upon Thames [2022] EWCA Civ 888.

  • [12]

    R v Wandsworth London Borough Council ex p Hawthorne [1994] 1 WLR 1442, CA, R v Brent London Borough Council ex p Baruwa (1997) 29 HLR 915, CA.

  • [13]

    paras 6.28,17.48 and 17.49 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [14]

    paras 17.48-49 Homelessness Code of Guidance, MHCLG, Feb 2018; R v Tower Hamlets LBC ex p Kaur (1994) 26 HLR 597, QBD; Samuels v Birmingham City Council UKSC 28.

  • [15]

    Paley v London Borough of Waltham Forest [2022] EWCA Civ 112.

  • [16]

    R v Medina BC, ex parte Dee (1992) 24 HLR 562, QBD.

  • [17]

    R v Kensington and Chelsea RLBC, ex parte Ben-el-Mabrouk (1995) 27 HLR 564, CA.

  • [18]

    R v Haringey LBC, ex parte Flynn [1995] QBD,

  • [19]

    Temur v Hackney LBC [2014] EWCA Civ 877.

  • [20]

    R v Westminster CC, ex parte Alouat (1989) 21 HLR 477, QBD; R v Westminster CC, ex parte Ali (1983) 11 HLR 83, QBD.

  • [21]

    Elrify v Westminster CC [2007] EWCA Civ 332.

  • [22]

    para 6.27 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [23]

    Harouki v Kensington and Chelsea RLBC [2007] EWCA Civ 1000.

  • [24]

    Lomax v Gosport BC [2018] EWCA Civ 1846.

  • [25]

    R v Wycombe DC, ex parte Homes (1990) 22 HLR 150, QBD.

  • [26]

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

  • [27]

    para 6.39(b) Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [28]

    s.175(4) Housing Act 1996.

  • [29]

    s.3A Protection from Eviction Act 1977.

  • [30]

    R v Newham LBC ex parte Sacupima (2000) 33 HLR 1, QBD.

  • [31]

    para 6.33 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [32]

    para 6.35 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [33]

    para 6.36, 6.37 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [34]

    para 6.19 Homelessness Code of Guidance, MHCLG, Feb 2018.