Deliberate and unreasonable refusals to cooperate

An applicant refuses to cooperate when they do not take a step (or steps) in their personalised housing plan.[1]

This might be a step which the:

• the applicant agreed to

• the authority identified as a step which the applicant was required to take

In order for the applicant to be penalised, the refusal must have been deliberate and unreasonable.

An applicant cannot be found not to have cooperated with a step which was identified as a 'good idea' in their personalised housing plan, but which they were not required to take.[2]

Neither 'deliberate' nor 'unreasonable' is defined in the Act or in the Homelessness Code of Guidance.

The Code suggests that a local authority follows a four stage determination to decide whether a failure to take a step was deliberate and unreasonable:[3]

• were the steps in the PHP reasonable in the context of the applicant's circumstances and needs?

• did the applicant understand what is required of them, so that the refusal can be judged deliberate?

• did the applicant fail to take steps because of a difficulty in communicating or a health need for which they did not have support?

• was the refusal 'deliberate and unreasonable in the context of their particular circumstances and needs'?

Steps must be reasonable

The Code suggests that where an applicant appears not to be cooperating, the local authority should review its assessment of their needs and the appropriateness of the steps in the personalised housing plan.[4] It may be found that certain steps in the PHP are not reasonable, or have become unreasonable.

For example, even if requiring an applicant to search for accommodation in a particular area at first seemed reasonable, it may be they have tried all of the private landlords in an area and none of them are willing to offer accommodation. In these circumstances, it is unlikely to be reasonable to require them to keep looking.

If steps are not reasonable, or are no longer reasonable, the applicant should be notified and should not face consequences for failing to take them.[5]

Applicant must understand what is required of them

It may emerge during the authority's investigations that the applicant did not understand one of the steps in the plan (perhaps because of a language difficulty). If so, they should not be found to have deliberately and unreasonably refused to cooperate.[6]

Applicant must not be failing to cooperate because of communication or health difficulties

The Code requires that local authorities take into account any particular difficulties the applicant has in managing communication. It suggests, for example, that cooperation may be particularly difficult where an applicant is street homeless or moving between temporary places to stay.[7] The problems may be around, for example, an applicant having a learning disability or more practical issues such as being required to contact landlords and not having telephone access. In circumstances such as these, it is less likely that failing to cooperate would be counted as deliberate or unreasonable.

In terms of health difficulties, the Code refers to applicants having a 'mental health illness or other health need, for which they are not being provided with support'.[8] Steps in personalised housing plans may include conditions that an applicant accepts support from health workers and applicants should be advised to do so if possible. However, where there are good reasons that an applicant cannot receive such support, or if the support is not adequate to enable them to take the steps required, this may provide a defence against a charge of 'deliberate and unreasonable' failure to cooperate.

Deliberate and unreasonable in the context of particular circumstances and needs

An authority 'must have regard to the particular circumstances and needs of the applicant', even if these have not been identified in the assessment of need.[9]

Some factors may be related to health or other difficulties of the applicant, but others may be much more context dependant. The Code gives the example of a person who prioritises attending a Jobcentre or medical appointment, or fulfilling a caring responsibility above attending a property viewing and states that this is unlikely to be deliberate.[10]

An authority should seek to understand the reasons for any lack of co-operation before taking action and during any action related to deliberate and unreasonable refusal.[11] It should also liaise with other services who may be providing support, such as a family support service or offender management service to seek to involve them in the process and to encourage the applicant to cooperate. [12]

Where the applicant is a care leaver, the Code also suggests that joint working 'to understand mitigating factors and resolve issues should continue throughout any action'.[13]

Where an authority considers that an applicant has deliberately and unreasonably refused to cooperate it must:

• serve a 'relevant warning' on the applicant[14]

• allow a 'reasonable period' to rectify non cooperation[15]

• (where non cooperation continues) serve notice of deliberate and unreasonable refusal[16]

Where the applicant has been referred at referred at relief duty stage, these steps may be followed by either the original or the receiving authority.

Relevant warning

A relevant warning is a notice which:[17]

• is served after the applicant deliberately and unreasonably refuses to take a step they have agreed to, or which has been required of the applicant

• warns the applicant that if they do not take such a step after receiving the notice the authority will give a further notice

• explains the consequences of such a notice

The warning should be given in writing, and if it is not received by the applicant must be made available at the local authority's office for collection 'for a reasonable period'.[18]

Reasonable period to rectify non cooperation

Once a relevant warning has been given to the applicant, the local authority cannot take further action until a 'reasonable period' has passed. The purpose of this is to give the applicant a chance to rectify non cooperation and prevent a further notice being served.[19]

The length of the reasonable period is not defined. The Code suggests that it will 'vary according to the particular needs and circumstances of the applicant'.[20] The authority should spell out what it considers to be a reasonable period in the applicant's case.

Any challenge would have to be by way of judicial review.

If the applicant takes the steps required within the time allowed, then the authority should not take further action.

Notice of deliberate and unreasonable refusal to cooperate

Where the applicant continues not to take the steps in their PHP, the local authority can serve a notice of deliberate and unreasonable refusal to cooperate.

Local authorities should have a policy on when and how these notices are served which should be kept under review.[21]

The decision to serve the notice must be:[22]

• made by a housing officer in the authority (this function cannot be outsourced even to a different department within the authority)

• approved by a person who works within the authority, has at least equal seniority to the officer making the decision to serve notice and was not involved in the decision to serve notice

The Code suggests that approval of the decision to serve notice might be given by a person in a different department or even, in two tier authorities, at the county council. As an example, it states that in the case of a care leaver, the person authorising a housing officer's decision might be an officer of at least equivalent seniority within children's services.[23]

The person authorising the decision to serve notice should look especially closely at whether the decision to serve notice had regard to the circumstances and needs of the applicant (even if these were not identified in the assessment of need).[24]

Information in notice

The notice should explain why the notice is being given and inform the applicant that they have a right to request a review within 21 days of the notice being served.[25]

Where the notice is served at prevention stage, this ends the prevention duty.[26]

However, if the applicant actually becomes homeless, the relief duty applies.[27] Ending the prevention duty on grounds of non cooperation does not affect any accommodation duties to the client (eg, interim duty), if they become homeless.[28]

Where the notice is served the relief stage, this ends the relief duty.[29] Where the applicant is in priority need and not intentionally homeless, the main housing duty does not apply and is replaced by a different accommodation duty.[30]

Since referrals can only be made at relief stage or when main housing duty is owed, this also stops the authority making a referral to a second area.

There is no statutory right to review a decision to serve a 'relevant warning'.

However, applicants can request a review of the decision to serve the notice ending the prevention or relief duty within 21 days of notification.[31]

The information here only applies to homelessness applications made on or after 3 April 2018.