Homeless applicants with no accommodation available to occupy
When a person is homeless because they have no accommodation they have a right to occupy or they cannot access their accommodation.
When someone is legally homeless
A local authority must accept a homeless application if it has reason to believe a person might be homeless or threatened with homelessness.
A person is homeless if they have no accommodation available to them in the UK or abroad which they have a right to occupy. This includes someone with:
no accommodation of any kind
accommodation that is not available to occupy
accommodation they cannot currently access
no legal right to occupy their current accommodation
A person who has accommodation is homeless if it is unreasonable for them to continue to occupy that accommodation.
A person is homeless if remaining in their accommodation means they are at risk of violence or domestic abuse and they have no other accommodation available they have a right to occupy.
Someone who lives in a mobile home or houseboat is homeless if there is nowhere they have permission to put it and live in it.
When someone is threatened with homelessness
A person is threatened with homelessness if they:
are likely to become homeless in the next 56 days
have been given a valid section 21 notice in respect of their only accommodation that expires in the next 56 days
Use our section 21 validity checker for a quick answer on whether a section 21 notice is valid.
People with nowhere to stay
A person is homeless if they have no accommodation of any kind. This includes someone sleeping rough or in something other than accommodation, such as a car.
Accommodation provided by a local authority under the interim duty or pending a review or appeal is not treated as accommodation when assessing if someone is homeless.
A prison cell is not considered accommodation and prisoners without other accommodation are legally homeless.
When accommodation is not available to occupy
Accommodation is not available to occupy if something prevents the person living there. For example, if the person is not allowed to return to the property because of:
a prohibition order due to poor conditions
an occupation order under the Family Law Act
a closing notice or order relating to antisocial behaviour
Accommodation is only available to occupy if it is available to the person and anyone who normally resides with them or is reasonably expected to reside with them.
Accommodation outside the UK
The local authority can look at whether a person has accommodation available to them outside the UK. The local authority might need to consider if the accommodation is practically available to the person and if it would be reasonable for them to live there. This could include whether the person can afford to travel there. A person who can afford to return to accommodation in another country that they have a right to occupy and which is practically accessible to them might be found not to be homeless.
Accommodation available in the future
The accommodation must be available to the person at the point where the decision is made.
A person is homeless if there is hypothetical accommodation that might become available in the future but that they cannot occupy now. For example, if another local authority has accepted a duty to provide accommodation following a referral, but no actual accommodation has been offered.
When someone cannot access their accommodation
A person is homeless if they are unable to secure entry to their accommodation. For example, if the person:
has been illegally evicted
cannot get to the property due to a flood
is unable to physically access the property for any reason
The local authority might take steps to help the person access their accommodation. If the person was illegally evicted, the authority could support them in taking court action to get back in to the property. This could form part of the steps the authority takes under the relief duty. The local authority cannot refuse to assist the person on the basis that legal remedies are available.
Legal rights to occupy accommodation
A person is homeless if they have no legal right to occupy their accommodation. A person might be physically able to access accommodation without a right or permission to be there.
A person can have a right to occupy accommodation through a:
legal interest as an owner or tenant
licence to occupy
court order allowing them to occupy the accommodation
right to remain by law or restriction on being evicted
A legal interest as an owner or tenant
A legal interest includes where someone owns a property as a freeholder or leaseholder, or any kind of tenancy. This includes secure, assured and assured shorthold tenancies.
A person with a legal interest in a property might be homeless if the accommodation is not available for them to occupy. For example, if they have sublet the whole of the property to someone else.
A licence to occupy
A person might have an express licence to occupy accommodation, for example as a property guardian or in supported housing. A person can also have an implied licence to occupy without a formal agreement. This can include someone living with family or friends.
In one case a person who made a joint application with her previously estranged husband was found to have given him an implied licence to occupy her temporary accommodation.
A court order giving the right to occupy
A person might have a court order giving them the right to occupy accommodation they would not otherwise have. For example, an occupation order under the Family Law Act.
A right to remain by law or restriction on being evicted
A person can have a right to remain in accommodation by law, for example under family law. A spouse or civil partner of a tenant or home owner living in the matrimonial home cannot usually be excluded from the home by the tenant or owner without a court order. This can include where a non-tenant whose spouse is a tenant is asked to leave by another joint tenant.
For some occupiers there is a restriction on the landlord's ability to evict them after their right or permission to occupy accommodation has ended. For example, a statutory tenant under the Rent Act 1977 whose contractual tenancy has come to an end.
Landlord notices and possession proceedings
A person is threatened with homelessness if they have been given either:
a valid section 21 notice in relation to their only accommodation that expires in 56 days
another type of notice and they are likely to become homeless within 56 days.
When a person given notice by their landlord becomes legally homeless can depend on the type of tenancy or licence they have.
Occupiers who cannot be evicted without a court order
Most tenants and licensees cannot be lawfully evicted without the landlord bringing possession proceedings in court. If a person has a secure, assured, assured shorthold or regulated tenancy, the tenancy ends when a possession order is enforced by a warrant or writ of possession. Until then, the tenant still has a legal right to occupy the property.
Some tenancies and licences come to an end on the expiry of a fixed term or valid notice to quit. These can include:
temporary accommodation provided by a local authority
property guardianships under a genuine licence
accommodation where there is a resident landlord in the same building
The landlord must then bring possession proceedings. As this is a restriction on the landlord's ability to take possession, the person is not homeless until a possession order is enforced by a warrant or writ. The person is threatened with homelessness if it is likely the eviction will take place within 56 days.
The local authority must consider whether it is reasonable to expect the occupier to remain in the accommodation until they are evicted.
Occupiers who can be evicted without a court order
Some occupiers are excluded from any protection from eviction and can be evicted without a court order. For example, lodgers or people in rent free accommodation. An excluded occupier is homeless from the point when their tenancy or licence ends.
The Homelessness Code of Guidance states that a former licensee whose licence has ended is homeless even if they remain as unauthorised occupier. It gives the examples of:
people required to leave hostels or hospitals
former employees occupying premises as service occupiers
People asked to leave by family or friends
Most people living with friends or family are excluded licensees. They have a licence to occupy that ends after the licensor gives them reasonable notice to leave. The notice can be verbal. A local authority cannot refuse assistance solely because there is no written evidence the person has been asked to leave.
The Code of Guidance advises authorities to check that permission to occupy has actually been withdrawn. It should distinguish between cases where there are genuine reasons why the person cannot remain and those where there is scope to prevent or postpone homelessness.
Social services are the lead agency in cases involving 16 and 17 year olds asked to leave the family home. They should work closely with the homelessness department to support young people to remain within the family network if it is appropriate and safe to do so.
A person might be intentionally homeless if the local authority finds that they colluded with family or friends to end their permission to occupy in order to be able to apply as homeless.
Last updated: 20 October 2022