David Cowan: Homelessness, Austerity and Public Law

Editors’ note: The blog is running a series titled ‘Austerity and Public Law’. The theme explores the implications or impact of the austerity measures in the UK or any European or Commonwealth government have had on public law or the enjoyment of public law rights. We welcome further submissions of 1,000 words or less, though longer pieces may be considered if the subject matter warrants it. You can read past posts in this series here.

David CowanSince 2011, roughly 110,000 households have made applications for homelessness assistance in England per annum. Prior to this, the numbers were in the 90,000s. The percentage of applicants who are successful has remained constant at roughly 45-48 per cent. Those official statistics do not necessarily convey the spatial shifts that are taking place in housing consumption patterns, which are likely to be exacerbated by current housing policies and practices. They also do not convey the significant stretching of local authority resources as well as the fantastic work done through housing advice agencies (including local authorities, although not their occasional “gatekeeping” practices). Despite the legal aid cuts, there are a cadre of amazing, committed housing advisors, who go over and above their duty to their clients, working weekends and well beyond work for which they will ever be paid. Some predict the end of what used to be called “general needs” social housing, as government policies shift to what it calls “affordable rent” and “flexible tenancies”, both of which operate at 80 per cent of the market rent (and price some households out of the housing market).

Those are important contextual factors behind the discussion in this blog as well as the lecture I am due to deliver at Kent Law School on the recent UK Supreme Court’s interventions in homelessness cases. In ordinary public law matters, the SC is what administrative justice scholars – who are often concerned with low-level, everyday decision-making – call the tip of the iceberg or apex of the pyramid. In homelessness matters, as my colleagues and I have found in our studies, many applicant households get nowhere near that apex because they do not request a review of the decision, which they are entitled to request under the Housing Act 1996 and which is conducted by a senior officer in the local authority. The review request is the precursor to any court application, which can only challenge such a decision on a point of law (taken as meaning the full range of public law grounds). Temporary accommodation is often not provided to homeless households pursuing their appeals through to a review and the courts (see here); and refusals are tricky to challenge on very narrow judicial review grounds.

In the last year, housing law issues have rarely been absent from the SC’s consideration and there have been cases which have added extra layers to the housing law onion. There have been three outstandingly important homelessness cases: Nzolameso v Westminster CC [2015] UKSC 22; Johnson v Solihull MBC linked with Hotak v Southwark LBC and Kanu v Southwark LBC [2015] UKSC 30; and Haile v Waltham Forest LBC [2015] UKSC 34. In all of these cases, unusually, the homeless applicants won on the substance of their arguments (although one lost on the actual facts in their case [Johnson] and one other also lost with the SC suggesting that the council might look again at the case [Hotak]). The SC heard argument in February in a further case, Samin v Westminster CC, and judgment is expected shortly.

The decided cases have made the homelessness officer’s jobs much more tricky both as regards entitlement as well as finding accommodation to satisfy temporary and housing duties. The definition of “vulnerability” which has been a constant for 18 years has been changed by the SC. Obviously problematic phrases, such as “ordinary homeless person”, and the dubious use of statistics in review decisions about the characteristics of that person, have been removed from our lexicon (except, oddly, in Wales). Instead, we now have to ask of a homeless applicant without children, whether they are significantly more vulnerable than the ordinary person who is in need of accommodation as a result of being rendered homeless. Further, we now know that the public sector equality duty must be considered by local authority’s in exercising their discretion; and we also know that the question whether assistance by friends and/or family is relevant to the vulnerability decision but rather tricky and potentially not determinative.

The SC in Haile have created some more rather difficult questions for homelessness decision-makers around intentional homelessness. This already juridified and slippery concept – originally justified to stop households deliberately taking advantage of the munificence of homelessness assistance – has been supplemented by a consideration of potential outcomes, ie has there been a supervening event after the applicant’s deliberate act or omission which meant that the applicant would have had to left the accommodation anyway. In Haile, it was the birth of the applicant’s child after leaving the single persons only accommodation, which disrupted her earlier deliberate act. One consequence of this decision is that English local authorities will look on Welsh and Scottish local authorities with a degree of jealousy as those jurisdictions have made the concept of intentional homelessness less relevant in decision-making. I have noted that case elsewhere but I’m not sure I really understand its parameters myself.

Ms Nzolameso’s case, a successful appeal against being provided out-of-area accommodation by Westminster (in Milton Keynes), is probably the one which will be felt most significantly by local authorities. The SC suggested that authorities should have an approved policy explaining the factors they would consider when making decisions as to where to place applicants. Generally, authorities must try and place applicants in their areas and as close to where they were living as reasonably practicable. Standard paragraphs in decisions are not going to cut the mustard as explanations.

One of the consequences of all of these decisions is that there is likely to be rather more homelessness jurisprudence. There are outstanding questions. For example, what is the effect of section 11, Children Act 2004 on homelessness decision making (both as to duty and as to location of accommodation)? What does this new vulnerability test mean in practice in other cases, and to what extent does it affect Welsh local authorities (as the Welsh Government’s codification of the previous test places it at odds with England)? At a recent conference at Bristol University, where my Doughty Street colleagues and I spoke, we raised a series of difficult questions.

After 38 years of homelessness law and a disproportionate amount of case law, it is not surprising that difficult questions of law remain when access to scarce social and private sector low cost housing is paradoxically at a premium. Austerity politics appears to mean less low cost social housing, which means, in turn, greater competition for the available units from an increasing number of households (priced out by the bedroom tax and other “progressive” social security policies); and those equations lead to what I now think about as “austerity law”, a law of shuffling resources in a counter-holistic social welfare settlement.

Dave Cowan, Professor of Law and Policy, University of Bristol, and Barrister, Doughty Street Chambers

(Suggested citation: D. Cowan, ‘Homelessness, Austerity and Public Law’ U.K. Const. L. Blog (19th Nov 2015) (available at https://ukconstitutionallaw.org/))