Intentional homelessness in Wales

An applicant can be found to be intentionally homeless if they have deliberately done, or failed to do, anything in consequence of which they have 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 they acquiesced to the deliberate act or omission of another person.[2]

The case law on acquiescence developed under the Housing Act 1996 may also apply to similar decisions under the Housing (Wales) Act 2014.

Collusion

An applicant can be found to be intentionally homeless if they have entered into an arrangement which required them 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]

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 may also apply to similar decisions under the 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 may also apply to similar decisions under the the Housing (Wales) Act 2014.

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 may also apply to similar decisions under the Housing (Wales) Act 2014.

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 must make their own short-term arrangements.

An applicant who remains subject to a help to secure duty and is subsequently assessed for the final duty 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. It might do if, for example, it leads to a breakdown in mediation attempts by the authority and the applicant subsequently becoming homeless.

The Housing (Wales) Act 2014 allows an authority to decide if it applies the intentionality test to particular classes of applicant.

If an authority decides to have regard to intentionality, it can only consider it when deciding if:

• it owes the final duty to an applicant, or

• an applicant can be referred to another authority under the local connection provisions

Final duty

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

• applicant falls into a category specified by the Welsh Ministers in regulations (currently all priority need categories are specified[8]) and

• 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 list the specified categories of applicants, and give reasons for having regard to those categories.[9]

The intentionality test must be applied if an applicant falls into one of the categories specified by the authority.[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]

Households with pregnant women, dependent children and young people

From 2 December 2019, the following categories of homeless applicants in priority need may be owed the final duty despite being found intentionally homeless:[13]

• pregnant women

• young people who were under 21 years of age when the homeless application was made

• young people who were between 21 and 24 years of age when the homeless application was made and who were looked after, accommodated or fostered at any time while under the age of 18

• applicants who reside or might reasonably be expected to reside with a person in one of the categories listed above

• applicants who reside or might reasonably be expected to reside with a dependent child

Intentionality and local connection

In the case of a local connection referral, authorities must still consider intentionality even if the applicant and their household fall within a priority need category that they had not specified in the notice to the Welsh Ministers.[14]

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 gives the applicant more time to provide further explanation or evidence, and to make informed and realistic choices.[15]

Households 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 and where an intentionality decision would result in the applicant not qualifying for a housing duty, it should ask the applicant’s consent for their case to be referred to social services.[16]

In exceptional circumstances, a referral can be made without the applicant’s consent if there are concerns about a child’s welfare.[17]

When an authority decides that it does not owe a final duty to an intentionally homeless applicant, it is still under a duty to provide interim accommodation for a sufficient period, beginning on the day that the applicant is notified that they are not owed the final duty.

The sufficient period must be of at least 56 days from the date that the applicant was notified that they were owed a help to secure duty.[18] 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.[19]

There is no fixed period of disqualification if an applicant wants to reapply as homeless after they have been found to be intentionally homeless. However, the authority’s duty to assess does not arise unless:[20]

• 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.[21]

Settled accommodation

It is a material change in circumstances if an applicant has secured intervening settled accommodation since their previous application.

There is no statutory definition of settled accommodation but the case law developed under the Housing Act 1996 and related Code of Guidance  may also apply to similar decisions under the 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 has a duty to assess the applicant. It is entitled to consider any relevant information from the previous authority. It must make its own enquiries and reach a decision as to whether it owes any duty to the applicant.[22]

Applicants who are dissatisfied with local authority decisions about whether they are intentionally homelessness have a right to request a review within 21 days.

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.