Local authority help for homeless offenders and people on probation

Local authority housing and homelessness duties to people on probation and others who have spent time in prison.

This content applies to England

Applying as homeless to a local authority

A local housing authority must accept a homeless application where they have reason to believe someone is eligible based on their immigration status and is either:[1]

  • homeless

  • threatened with homelessness in 56 days

People threatened with homelessness include prisoners due to be released within 56 days and likely to be homeless on release and people in short-term accommodation (such as Approved Premises) with no move-on provision.

Read our overview of the homeless application process.

Who can apply as homeless

Applications can be made by the person or by someone acting on their behalf, such as an advisor, solicitor or social worker.

Prisons and probation services have a duty to make a referral to a local housing authority where a person is homeless or at risk of homelessness. This includes people in prison and people on probation.

A referral by a prison or probation service is not a homeless application.[2] A local authority should always respond to a referral by contacting the person referred. If the authority has reason to believe they are eligible and homeless or threatened with homelessness, then they must accept a homeless application.

If a local authority refuses to accept a homeless application

The local authority's refusal to accept a homeless application can be challenged by judicial review in the High Court. The person will need legal representation and legal aid is available.

Local authority homelessness duties

If the local authority is satisfied that a person is eligible and either homeless or threatened with homelessness, then they must assess their needs and put together a Personalised Housing Plan.

The plan informs the steps the local authority must take to either:

  • help prevent the applicant from becoming homeless (the prevention duty)

  • help them secure accommodation if they are already homeless (the relief duty)

Neither the prevention nor the relief duty require the local authority to actually provide accommodation. Steps could include helping the applicant look for private rented housing or making a referral to a supported housing provider.

If the applicant is homeless but has no local connection to the local authority they have applied to, the authority may be able to refer them to another local authority.

Emergency and long term housing

If a local authority has reason to believe that a person has a priority need then they have a duty to secure that emergency accommodation is available to them while the local authority carries out further enquiries.

The local authority may owe the person a long term housing duty if they are in priority need and not intentionally homeless and the authority is unsuccessful in helping them find accommodation under the relief duty.

Priority need of people who have been in custody

Some categories of people are automatically in priority need, including pregnant women, people with children living with them, and certain care leavers under 21.

Other people have a priority need if they are vulnerable. This includes vulnerability due to:

  • old age

  • mental or physical disability

  • having been in care as a child

  • fleeing non-domestic violence (such as gang violence)

Vulnerability because of time in prison

A person can be vulnerable as a result of spending time in custody, for example where someone has

  • served a custodial sentence

  • been remanded in custody

  • been committed for contempt of court

A person who has spent time in custody may be institutionalised and struggle to manage on release. They may also lack support networks that other people might have. The local authority should consider:[3]

  • the length of time spent in prison or custody

  • whether the applicant is receiving probation service supervision

  • the time that has lapsed since the applicant was released from prison or custody

  • whether they have been able to find and keep accommodation since being released

  • whether the applicant has any existing support networks, such as family or friends

Establishing vulnerability

The test for establishing vulnerability is whether the applicant would be significantly more vulnerable than an ordinary person would be if they became homeless.[4]

A person may be vulnerable because of a combination of factors. For example, if a person has spent time in custody and has a mental illness or disability.

The local authority and anyone supporting a person who has been in custody should consider:

  • anything that might make the person vulnerable, including health and time in custody

  • how this affects their daily living

  • if it would be made worse by becoming homeless

  • any support they receive and whether this would continue if they were homeless

If the person has a disability, then the authority must take into account the Equality Act and focus sharply on whether the effect of that disability would make the person vulnerable.

Challenging a decision that someone is not in priority need

The applicant can apply to the High Court for judicial review if the local authority refuses to provide interim accommodation because it does not think the applicant is in priority need. The applicant will need legal representation.

The applicant can request an internal review if the authority gives the applicant a decision letter stating they are not in priority need. They have 21 days to request a review.

Legal aid is available to help challenge homelessness decisions.

Intentional homelessness where someone has been in custody

The local authority does not owe person a long term housing duty if they are intentionally homeless. This could include if the person lost their home as a direct or indirect result of going to prison.[5]

The local authority must decide if at the time of the offence, the applicant would reasonably have regarded the loss of the accommodation as a likely consequence of committing the offence, and that it would otherwise have remained available for their occupation.

Authorities must not assume that a person who has lost accommodation while in custody is intentionally homeless and should look at the individual circumstances of each case.

If the authority decides that the applicant is intentionally homeless then the applicant can request an internal review within 21 days of the decision.

Social services help for people with care needs

The Care Act 2014 gives adult social services duties and powers to meet eligible care and support needs of adults who suffer from physical or mental illness or disability.

Accommodation can only be provided under the Care Act where adult social services have a duty to provide services that are accommodation related in order to meet a person's care needs. Accommodation related services are those that would normally be provided in the home or that would be effectively useless if the person was homeless.[6]

The Act cannot be used to provide accommodation where a local authority has a duty to do this under the homelessness legislation.[7] This means that adult social services only need to assist with accommodation for someone with care needs if that person is not owed a homelessness duty. For example, if they have been found intentionally homeless, or if they are not eligible based on their immigration status.

People who lack mental capacity

A local authority cannot accept a homeless application made by a person who lacks mental capacity. It is the local authority’s responsibility to decide whether the applicant has capacity to make the homeless application and this decision must be made with reference to the Mental Capacity Act.

A person's care needs or medical conditions might make it difficult for the local authority to find suitable accommodation. This does not prevent a local authority from having a duty under homelessness legislation, unless the person lacks capacity.

Social services are likely to have a duty to meet care needs for someone who is homeless and lacks mental capacity.

Social services help for people with children

A person has a priority need when applying as homeless if they have a dependent child who normally resides with them or would be reasonably expected to reside with them.[8]

If the local authority does not owe them a homelessness duty then children's social services might have a duty to accommodate the child, and a power to provide accommodation for the family together. For example, if the person is not eligible or found intentionally homeless.

Support for care leavers

Social services are not usually responsible for providing accommodation to care leavers who are aged 18 and over, other than some care leavers in full-time further or higher education.

Most care leavers aged 18 to 20 have a priority need when making a homeless application. Care leavers who are 21 and over have a priority need if they are vulnerable as a result of time spent in care.

Social services have some duties to assist certain care leavers in so far as their education or training needs require it.[9] This can include care leavers over 21. Social services can assist financially or provide accommodation if the welfare of the care leaver requires it.[10]

Applications for social housing

A person who has been in custody can apply to join a local authority's housing register.

A local authority can decide who is a qualifying person under its allocation scheme. They can disqualify people if, for example, they have no local connection to the area or have rent arrears.

Local authorities can disqualify people from the waiting list on the basis of past conduct, such as anti-social behaviour. The authority must not breach section 4(1) of the Rehabilitation of Offenders Act 1974 which requires that a person who has a 'spent' conviction is treated as if the offence was not committed. If the only evidence of antisocial behaviour is an applicant’s spent conviction, the authority cannot disqualify the applicant because of that conviction.[11]

Last updated: 9 September 2021

Footnotes

  • [1]

    s184(1) Housing Act 1996.

  • [2]

    para 18.7 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [3]

    para 23.19 Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [4]

    Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30.

  • [5]

    Minchin v Sheffield City Council (2000) Times, 26 April, CA; and R v Hounslow LBC ex parte R (1997) 29 HLR 939.

  • [6]

    R (on the application of SL) v Westminster CC [2013] UKSC 27.

  • [7]

    S.23 Care Act 2014.

  • [8]

    s.189 Housing Act 1996.

  • [9]

    s.23C(4) Children Act 1989.

  • [10]

    R (on the application of SO) v Barking and Dagenham LBC [2010] EWCA Civ 1101.

  • [11]

    YA v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin).