Deliberate act or omission definition for intentional homelessness

In considering intentional homelessness, a local authority must be able to identify an act or omission that is deliberate and must always give the applicant an opportunity to explain their actions.[1] The same conduct may be capable of being described as both an act or an omission.

The intention to carry out an act must be established for an act to be deliberate. For example:

• losing tied accommodation as a result of being dismissed for incompetence would not be considered a deliberate act

• dismissal for theft would usually be considered a deliberate act[2]

Acts generally regarded as deliberate

The Homelessness Code of Guidance suggests that acts or omissions that may be regarded as deliberate could include where someone:[3]

• sells their home and there is no risk of losing it

• has lost their home because of wilful and persistent refusal to make rent or mortgage payments

• has significantly neglected their affairs having disregarded sound advice from qualified persons

• voluntary surrendered adequate accommodation in the UK or abroad which it would have been reasonable to continue to occupy

• is evicted because of antisocial behaviour such as nuisance or harassment

• is evicted because of violence towards another person

• leaves a job with tied accommodation where it would have been reasonable to continue in the employment and reasonable to continue to occupy the accommodation

Acts or omissions generally not regarded as deliberate

The Homelessness Code of Guidance states the action or omission should not generally be considered deliberate where the act or omission was:[4]

• non-payment of rent or mortgage costs resulting from welfare benefit delays or other financial difficulties which were beyond the applicant's control

• a result of limited mental capacity or the result of temporary aberrations caused by mental illness, frailty, or an assessed substance misuse problem

• carried out while the applicant was under duress

• due to imprudence or lack of foresight on the part of the applicant, but the act was in good faith

• because the applicant is not capable of managing their own affairs, for example because of age or mental illness or disability

Findings of intentionality may arise where a person has lost accommodation as a result of rent or mortgage arrears, for example where they persistently failed to provide documentation needed for the processing of a benefit claim and failed to make up the shortfall between rent and benefits.[5]

The Homelessness Code of Guidance suggests that acts or omissions that may be regarded as deliberate could include the wilful and persistent refusal to make rent or mortgage payments.[6]

Affordability

Local authorities must consider whether the accommodation was affordable for the applicant when deciding whether it would be or would have been reasonable to continue to occupy the accommodation, for example was the applicant able to pay their housing costs and other reasonable living expenses?[7]

The Code states that an applicant's actions may not amount to intentional homelessness where they have lost a home or been obliged to sell it when:[8]

• arrears were due to significant financial difficulties

• the applicant was genuinely unable to keep up rent or mortgage payments even with the help of benefits

• no further financial help was available

Where an applicant has lost their former home due to rent or mortgage arrears, the reasons for those arrears should be fully explored. This includes consideration of the applicant's ability to pay those costs when the tenancy or mortgage was taken on.[9]

Deliberate acts

As a general rule, a person cannot be found to be intentionally homeless from accommodation which was not reasonable to continue to occupy.[10]

However, a local authority can check if the person is intentionally homeless as a consequence of entering into an unaffordable arrangement. As such, the deliberate act that caused the homelessness may not be the failure to make mortgage or rent payments but the taking out of an unaffordable loan or the entering into an unaffordable tenancy agreement.[11] In such a case it is the loss of the accommodation that was occupied prior to taking on the unaffordable property that is subject to the finding of intentional homelessness.

Where there is more than one cause of homelessness, it is sufficient that at least one of them was a deliberate act or omission by the applicant: where a homeless applicant entered into a tenancy that he could not afford, his deliberate omission to inform the benefit department when his partner and child moved in with him constituted a deliberate act causing homelessness because that information would have resulted in increased benefit and prevented him losing the tenancy.[12]

In another case, where a homeless applicant had refused her landlord's offer of help finding a new joint tenant with whom to share the rent liability, this was a deliberate act/omission.[13]

Where a landlord gains possession of an assured shorthold tenancy after serving a section 21 notice (which enables a landlord to regain possession of a property without having to specify a reason or ground, it is open to the authority to look at the reason why the landlord sought possession. Where the assured shorthold tenant's deliberate failure to pay the rent was the reason (or one of the reasons) why the landlord served a section 21 notice and subsequently obtained a possession order, a finding of intentional homelessness was upheld in the courts.[14]

An act or omission in good faith by someone who was unaware of any relevant fact cannot be treated as a deliberate act.[15]

The Court of Appeal has held that there is no requirement in the Housing Act 1996 that any ignorance of a relevant fact must be reasonable, although wilful ignorance would be held to fail the good faith test.[16]

The Courts have said the following principles apply where someone claims to be unaware of a material fact:[17]

• whether an applicant has enquired into the existence of the fact is relevant to their awareness of it

• the fact is a relevant one if the applicant would have taken it into account when giving up accommodation had they been aware of it

• a fact must be sufficiently clear and definite for its existence to be objectively established

• the fact of which the applicant is unaware must exist at the time of the deliberate act or omission, the issue does not concern future events which may or may not occur[18]

The courts have held that there is a distinction between honest blundering and carelessness, or holding unreasonable beliefs, in which case someone can still be acting in good faith,[19] as opposed to dishonesty, such as misrepresenting one's income to get a higher mortgage, where there can be no question of the person acting in good faith.[20]

Homelessness caused because a tenant was unaware of the possibility of housing benefit being restricted should not result in intentional homelessness, where this belief amounts to more than mere 'aspiration'.[21]

If the authority believes the applicant is not acting in good faith, it is obliged to tell the applicant when they are being interviewed.[22] However, an unexpected inability to find employment or accommodation where the prospect of finding them was a matter of hope or aspiration, rather than well-founded expectation, has been found not to be a relevant fact.[23]

Giving up accommodation to move in with family or friends

A person who gives up their accommodation to move in with a relative or a friend is not automatically intentionally homeless.

In one case, a person who was invited to come from abroad to live with their relative was not intentionally homeless, because they did not know the accommodation would be inadequate before moving.[24]

In another case, a person who gave up suitable and affordable housing in order to move into precarious accommodation was intentionally homeless, because they were aware of all the relevant facts when they made the decision to relocate, including that the accommodation would be precarious and temporary.[25]

Code of Guidance

The Homelessness Code of Guidance suggests that examples of acts or omissions made in good faith might include where:[26]

• someone gets into rent arrears while being unaware that they may be entitled to universal credit, housing benefit or other benefits

• an owner occupier sells or surrenders the property before foreclosure when they are faced with foreclosure or possession proceedings to which there is no defence

• a tenant surrenders the property to the landlord when faced with possession proceedings to which there is no defence and the granting of a possession order would be mandatory.

Although the authority might consider it would have been reasonable for the tenant to continue to occupy, the tenant's actions would not be deliberate if they decided to leave the accommodation in ignorance of relevant facts[27]

The Code of Guidance also states that, where someone has left private rented accommodation having received a valid notice to quit or notice that an assured shorthold tenancy has come to an end and the landlord requires possession of the property, that act is in good faith if the applicant was genuinely unaware that they had the right to remain in the property until the court had granted an order and warrant for possession.[28]

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.