Cross border local connection referrals

Referrals at the relief stage

English local authorities owe the relief duty to homeless applicants whose only local connection is to a Welsh local authority. They cannot refer homeless applicants to Wales at this stage of the homelessness application process. This is because the English homelessness law specifies that at the relief stage the applicant can be referred to another local authority in England only.[1]

Referrals at the main housing duty stage

A homeless applicant can be referred to a Welsh local authority after the relief duty has come to an end if they:

• have no local connection to the English local authority’s area

• would be otherwise owed the main housing duty, and

• have not done anything to prevent the main housing duty from being owed, for example refused a final private rented sector offer at the relief stage[2]

The Welsh authority will owe the applicant the duty to secure and will have an obligation to provide interim accommodation.

Repeat homeless applications

Local authorities in England can refer homeless applicants back to the authority that made an offer of a privately rented property as a way of discharging the main housing duty , as long as the new homeless application is made within two years of accepting the offer.[3] Applicants cannot be referred back to Wales even if they become homeless less than two years from accepting the offer.[4] The relevant amendments to the Housing Act 1996 introduced by the Localism Act 2011 do not apply in Wales and Welsh authorities have never had the power to end a main housing duty this way.

Welsh authorities can refer applicants to English authorities at the point where they would have a help to secure duty. They must be satisfied the applicant is eligible, homeless, priority need and not homeless intentionally, and that the conditions for referral are met.[5]

Where the conditions for a referral from a Welsh authority are met, the applicant is owed the main housing duty, rather than the relief duty.[6] This is because the Welsh authority must assess priority need and intentionality prior to making the referral. The arbitration process only handles disputes over whether the conditions for referral are met. Where the Welsh authority is satisfied that an applicant is priority need under Welsh law, the English authority cannot refuse the referral, even if the applicant is not in priority need under English law. Welsh authorities cannot make referrals to English authorities based on:

• past offers of private rented sector accommodation made by an English authority to end a main housing duty within the past two years[7]

• prior placements in the Welsh notifying authority’s area under a Part 7 function within the past five years, because the Housing (Wales) Act 2014 does not contain such provisions

Homeless applicants who were placed in England by Welsh authorities under Part 2 of the Housing (Wales) Act 2014 and who make a new homeless application in England within five years can be referred back to Wales. The Housing Act 1996 allows for duties under the Welsh Act to be considered as if they were duties under Part 7 of the 1996 Act.[8] The Housing (Wales) Act 2014 allows for Welsh authorities to accept such referrals.[9]

Referrals at the relief stage

English local authorities owe the relief duty to homeless applicants whose only local connection is to Scotland. They cannot refer homeless applicants to Scotland at this stage of the homelessness application process. This is because the English homelessness law specifies that at the relief stage the applicant can be referred to another local authority in England only.[10]

Referrals at the main housing duty stage

A homeless applicant whose only local connection is to Scotland can be referred to a Scottish local authority after the relief duty has come to an end if they:

• have no local connection to the English local authority’s area

• would be otherwise owed the main housing duty, and

• have not otherwise forfeited the main housing duty owed to them, for example by refusing a final private rented sector offer at the relief stage[11]

Repeat homeless applications

Local authorities in England can refer homeless applicants to another area as long as the new homeless application is made within two years of accepting an offer of a privately rented property made to discharge the main housing duty.[12] There are no similar provisions in the Scottish law and no cross-border referrals between England and Scotland are possible in these circumstances, meaning that an English authority would not be able to refer an applicant back to Scotland.

Where a Scottish authority notifies an English authority of its intention to make a referral under Scotland’s homelessness procedures,[13] the English authority should treat it as if it was a referral from an English authority made at the main housing duty stage. [14] From the perspective of the English authority, the procedure is similar (but not the same) as taking a referral from an English authority.

Disputes

If the notifying and the notified authorities cannot agree on whether the conditions for referral are met, the dispute must be referred for arbitration. If the notifying authority is in Scotland, a referee is appointed through the Convention of Scottish Local Authorities.[15]

Where there is a dispute over whether the conditions for referral are met, the law of the notified authority applies.[16] The preference for the law of the notified authority does not apply to differences in the law that determine whether a housing duty is owed in the first place. For example, the priority need test has been abolished in Scotland[17] and since the presence or absence of priority need is not actually part of the ‘conditions for referral’,[18] an English authority cannot refuse a referral from a Scottish authority and a subsequent duty under section 193 of the 1996 Act on the basis of a lack of priority need.

Scottish law specifically provides for uncles, aunts and grandparents to be considered family members for the purposes of demonstrating a local connection through family associations.[19] The equivalent English local connection legislation does not contain similar provisions.[20] The Code of Guidance for local authorities in England recommends considering aunts and uncles if there are ‘sufficiently close links’, while the Referral Procedures suggest a more restrictive approach but note that all situations must be decided on their individual circumstances.[21]

Scottish law does not allow asylum seekers to acquire a local connection to an area where they were housed by the Home Office under immigration duties.[22]

Asylum seekers previously accommodated in Scotland under section 95 of the Immigration and Asylum Act 1999 who make a homeless application to an English local authority cannot be referred back to Scotland.[23]

The English authority does not owe the main housing duty to a former asylum seeker who:[24]

• was previously accommodated in Scotland

• has no local connection to anywhere in England, Wales or Scotland

The authority can:

• arrange for accommodation for a period that will give the applicant reasonable opportunity to secure accommodation themselves

• provide advice and assistance with finding accommodation

The Code of Guidance recommends that authorities consider providing advice and assistance on the applicant’s rights to approach a Scottish authority.[25]

This provision does not prevent the English local authority from owing the former asylum seeker a relief duty or an interim duty to accommodate.

English local authorities can only make referrals to another local housing authority.[26] The Housing Executive in Northern Ireland and the government of the Isle of Man are not classed as local housing authorities and it is not possible for an English authority to refer a homeless applicant to these areas or accept a referral from them.[27]

Chapter 10 of the Homelessness Code of Guidance for Local Authorities and chapter 11 of the Local Government Association Procedures contain further guidance on making cross-border referrals and dealing with disputes.