Suitability of homelessness accommodation in Wales

Accommodation offered in discharge of any of the duties in Part 2 of the Housing (Wales) Act 2014 must be suitable for the applicant and all members of their household.[1]

For details on how each duty can be ended in this way see:

• help to prevent duty

• help to secure duty

• interim accommodation duty

• final duty

When deciding whether accommodation is suitable, a local authority must have regard to:[2]

• parts 9 and 10 of the Housing Act 1985 (slum clearance and overcrowding)

• parts 1-4 of the Housing Act 2004 (housing standards, selective licensing and licensing of HMOs)

• part 1 of the Housing (Wales) Act 2014 (regulation of private rented housing)

• affordability

Additional criteria for households in priority need

The Homelessness (Suitability of Accommodation) (Wales) Order 2015 sets out further suitability requirements for priority need households relating to:[3]

• location, and

• bed & breakfast and shared accommodation

When securing accommodation under Part 2 of the Housing (Wales) Act 2014, authorities must offer accommodation that is in reasonable physical condition and free from category 1 hazards.[4]

The authority must also check that a landlord has complied with all applicable regulations relating to safety in the home. Relevant regulations include:

• Furniture and Furnishings (Fire Safety) Regulations 1988

• Electrical Equipment (Safety) Regulations 1994

• Gas Safety (Installation and Use) Regulations 1998

• Regulatory Reform (Fire Safety) Order 2005

• Energy Performance of Buildings (England and Wales) Regulations 2012

Under Part 1 of the Housing Act 2004 an authority must keep housing conditions in its area under review and inspect residential premises for hazards where appropriate. It can satisfy itself as to the compliance with the various regulations through a property inspection and/or by requesting sight of relevant documents such as current gas safety certificate and energy performance certificate.[5]

Property inspections should be carried out by staff who have been trained to inspect against the statutory standards.[6]

When considering whether accommodation is affordable for an applicant, the authority should take into consideration:[7]

• applicant’s financial resources

• accommodation costs

• child support and maintenance payments

• other reasonable living expenses

Authorities need to ensure that the applicant can afford the housing costs without being deprived of basic essentials such as food, clothing, utilities and transport.

When determining whether accommodation is suitable for an applicant who is, or may be in priority need, the authority must take into account the:[8]

• specific health and disability needs of the applicant and all members of her/his household

• proximity and accessibility of family support, essential medical facilities and other support services

• in the case of out-of-area placements, distance of accommodation from the authority

• significance of any disruption to employment, education or caring responsibilities caused by the location of the accommodation

• proximity of alleged perpetrators and victims of domestic abuse

Applicants not in priority need

Location is relevant to suitability even if the applicant is not in priority need. The Code of Guidance for Local Authorities in Wales provides further guidance on:[9]

• assessing the significance of disruption to employment, education and caring responsibilities

• placing certain applicants, including people with an autistic spectrum disorder, victims of abuse, ex-offenders and those with a substance misuse problem

• using out-of-area placements

The Homelessness (Suitability of Accommodation) (Wales) Order 2015 sets out:[10]

• definitions of B&B accommodation and shared accommodation

• minimum standards for B&B and shared accommodation

• statutory time limits on the use of B&B and standards of shared accommodation for priority need households

Definitions

The Homelessness (Suitability of Accommodation) (Wales) Order 2015 sets out the following definitions:

‘B&B accommodation’ means commercially provided accommodation (whether or not breakfast is included) which is not separate and self-contained, where the applicant does not have access to a toilet, personal washing facilities or cooking facilities, or shares these amenities with other households.

B&B accommodation owned or managed by a local authority, registered social landlord or voluntary organisation and registered care homes are excluded from the definition.

‘Small B&B’ means B&B accommodation where the manager resides on the premises, and it has less than seven bedrooms available for letting.

‘Shared accommodation’ means accommodation which is not separate and self-contained, where the applicant does not have personal toilet, washing or cooking facilities, and shares these amenities with other households.

This is a wider definition than the B&B definition and includes shared accommodation in the private rented sector as well as shared accommodation owned or managed by a local authority, registered social landlord or voluntary organisation.

Registered care homes are excluded from the definition.

‘Basic standard accommodation’ means accommodation that:

• complies with all applicable statutory requirements (such as requirements relating to fire, gas, electrical and other safety; planning; and HMO licensing)

• has a manager deemed by the authority to be a fit and proper person,[11] with the ability to manage B&B accommodation

The fit and proper person test is based on the fit and proper person requirement of private landlords and their agents for licensing purposes under Part 1 of the Housing (Wales) Act 2014.

If private rented sector accommodation is used to fulfill or discharge a Part 2 duty, the landlord or agent must be registered and licensed with Rent Smart Wales.

The Code of Guidance for Local Authorities in Wales requires proprietors/managers to:[12]

• declare any relevant unspent convictions, and

• reveal any contravention of housing, landlord and tenant or licensing laws

‘Higher standard accommodation’ means accommodation that meets the basic standard and the higher standard contained in Schedule 1 of the Order. Schedule 1 sets out minimum requirements for:

• pace standards for sleeping accommodation

• heating installations

• kitchen, toilet and washing facilities

• security

• communal areas

• additional management standards

The standards vary depending on the number of people or households sharing the facilities and the Code of Guidance for Local Authorities in Wales provides detailed guidance.[13]

Time limits on B&B placement for applicants in priority need

Applicants who are, or may be in priority need must not be placed in a B&B for more than:[14]

• two weeks if it is a basic standard B&B

• six weeks if it is a higher standard B&B

The same statutory time limits apply to a small B&B unless the authority has offered suitable alternative accommodation within the relevant time limit and the applicant has chosen to remain in the small B&B.

An applicant in a basic standard small B&B must be offered suitable alternative accommodation within two weeks, and again within six weeks where they have opted to remain there.

An applicant in a higher standard small B&B must be offered suitable alternative accommodation (see below) within six weeks.[15]

Use of shared accommodation for applicants in priority need

There is no statutory time limit on use of shared accommodation where the accommodation meets the higher standard.

Applicants who are, or may be in priority need can also be placed in basic standard shared accommodation:[16]

• for up to two weeks generally

• for up to six weeks if the accommodation is owned or managed by a local authority or registered social landlord, and the authority has offered suitable alternative accommodation within the first two weeks but the applicant has chosen to remain in the basic standard shared accommodation

• indefinitely if the accommodation is wholly or mainly used as temporary accommodation for people who are homeless due to domestic abuse, managed by a not-for-profit organisation (but not a local housing authority) and the authority has offered suitable alternative accommodation within the first six weeks but the applicant has chosen to remain in the refuge.

Suitable alternative accommodation

The suitable alternative accommodation offered to an applicant who chooses to remain in B&B, a refuge or other basic standard shared accommodation must:[17]

• be self-contained if the household contains dependent children or a pregnant woman

• provide support if it is for a 16 or 17 year old applicant, and

• meet the higher standard if it is shared accommodation

Exception for applicants homeless due to disaster

There are no statutory time limits or restrictions on placement in B&B or shared accommodation if the authority believes the applicant may be homeless as the result of an emergency such as fire or flood and there is no other accommodation reasonably available.[18]

Applicants who are offered accommodation in connection with, or as a discharge of any of the substantive duties (including the interim accommodation duty) has the right to request a review of the suitability of the accommodation regardless of whether they accept or refuse the offer.[19]

Applicants can also raise any suitability issues when requesting a review of an authority’s decision that any of the substantive duties have come to an end.[20] In most cases it will be prudent for an applicant to accept the offer and request a suitability review, rather than refuse it.

A request for review must be made within 21 days of the authority notifying the applicant of their decision, unless the authority agrees to a longer period in writing.[21]

An applicant who has requested a review of suitability may appeal to the county court within 21 days on a point of law if they:[22]

• is dissatisfied with the review decision, or

• has not been notified of the review decision within eight weeks.

The county court may give permission for an appeal after 21 days but only if satisfied that there is a good reason for the failure to bring the appeal in time.[23]

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.