Devolution and the law
Rhiannon Price, senior solicitor at Shelter Cymru, examines the current differences in homelessness law and practice in England and Wales, some of which have existed for over a decade as a result of Welsh devolution
Autumn 2013 has been eagerly awaited by those who work in the Welsh housing arena. The Welsh Government is due to lay the Homes for Wales Bill before the assembly in November, with the anticipation that it will be made law in the summer of 2014. The first Housing Act made in Wales for Wales, it sets to legislate in respect of homelessness by placing a duty upon local authorities to take reasonable steps to prevent homelessness; introducing mandatory licensing in the private sector; reducing empty homes in Wales by imposing increased council tax charges; placing a duty on local authorities to promote gypsy and traveller sites; and allowing the lawful use of community land trusts and co-op housing.
The Welsh Government has also consulted upon the Renting Homes Bill that is likely to be laid before the Assembly in 2015. This legislation will overhaul the current law that governs security of tenure in Wales, the result being different landlord and tenant contracts in England and Wales. The goal is to simplify the law providing clarity and flexibility for tenants and landlords alike.
Devolution – the road to the first Housing Act
The roots of political devolution in Wales can be traced to the end of the 19th century. In 1886 Cymru Fydd (‘Young Wales’) was established to promote the objectives of the Liberal party in Wales and to campaign in favour of ‘Home Rule’.
Today, the Welsh Government powers to legislate on housing can be found at paragraph 11 of Schedule 7 of the Government for Wales Act 2006. These powers were brought into force following the referendum held in May 2011. The extent of Welsh Government powers in respect of housing are listed as follows:
Housing finance (except schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefit). Encouragement of home energy efficiency and conservation, otherwise than by prohibition or regulation. Regulation of rent. Homelessness. Residential caravans and mobile homes.
Homelessness
Part VII of the Housing Act 1996 (as amended) is the statutory framework for homelessness in England and Wales. This primary legislation conferred upon the National Assembly for Wales (as it was) an ability to make regulations by way of statutory instruments. As a result there are differences between England and Wales in respect of those who are eligible for homelessness assistance and those who are in priority need. The Localism Act 2010 has also added further differences to homelessness legislation between England and Wales by amending the section of
the Housing Act 1996 that sets out how a local authority can discharge its main homelessness duty.
Eligibility
Eligibility within the context of Part VII of the Housing Act 1996 is invariably determined by a person’s immigration status. Section 185 of the Housing Act 1996 provides that certain people from abroad are ineligible for assistance under Part
VII of the Housing Act 1996. Section 185 contains two categories of ‘persons from abroad’. This is a very complex area of homelessness legislation and justice cannot be given to it within this brief article.
The differences have existed since 2006 when Wales introduced the Homelessness (Wales) Regulations 2006/2646. The one main difference that has been used in homelessness practice in Wales is that jobseekers who are habitually resident are eligible for homelessness assistance in Wales but are specifically excluded in England. The reality is that the Welsh Code of Guidance issued in 2012 makes it very clear that change is imminent in respect of this aspect of homelessness legislation and that it will be brought in line with England.
Welsh Code of Guidance
The Welsh Government’s intention is to reflect consistency with the UK immigration law and related European legislation in its regulations on eligibility. Consideration is currently being given to amending the Homelessness (Wales) Regulations 2006 (SI 2646). This is highlighted at paragraph 11.4 of the Welsh Code of Guidance and also mentioned at other points throughout the document. The Welsh Government White Paper – Homes for Wales (the Bill that is due to be laid before the Assembly this autumn) makes no reference to eligibility for those subject to immigration control. It is clear that the Welsh rules will be brought in line with the English rules. Immigration is not and never has been a devolved area of law in Wales.
Housing Act 1996 Section 189 – priority need
This section of the Housing Act 1996 sets our four different categories of people who will have a priority need. These are as follows:
• A pregnant woman or a person with
whom she would resides, or might reasonably be expected to reside – Section 189(1)(a)
• A person with whom dependant children reside or might reasonably be expected to reside – Section 189(1)(b)
• A person who is vulnerable as a result of old age, mental illness or mental handicap with physical disability or other special reason, or with whom such a person resides or might be reasonably be expected to reside – Section 189(1)(c)
• A person who is homeless or threatened with homelessness as a result of an emergency such as a flood, fire or other disaster – Section 189(1)(d).
These four categories above are equally applicable in England and Wales.
In Wales the following additional categories will be eligible for homelessness assistance:
1. Care leavers, or 18 to 20 year olds at risk of sexual or financial exploitation
2. People aged 16 and 17
3. People fleeing domestic violence or
threated domestic violence
4. Former prisoners who have been homeless since leaving prison
5. A person homeless after leaving the armed forces of the Crown.
In England the above categories (1, 3, 4, 5) apply except that the applicant also has to satisfy the local authority that they are vulnerable.
The equivalent English Order also excludes 16- and 17-year-olds who are relevant children and children who ought to be accommodated by the social services authority which owes them a duty under the Children Act 1989, Section 20. Baroness Hale in the case of R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents) made it abundantly clear that that such classes of applicants should not be caught in a trap between homelessness and social services and that social services would need to take the lead in the assessments.
The equivalent category (3) in England is not restricted to domestic violence but is any violence but the applicant would have to prove that they are vulnerable.
Discharge of main housing duty
Part Vii Housing Act 1996 Section 193 (2)
The Localism Act 2010 amended the above Act and includes a further provision. The new provision allows local authorities to discharge duty by arranging for applicants to be made an offer of suitable accommodation in the private rented sector (a private rented sector offer). Such an offer will discharge the Section 193 duty whether or not the applicant accepts the offer.
If a homeless applicant who had previously accepted a private rented sector offer bringing the full Section 193 duty to an end, subsequently makes a fresh homelessness application (because the private rented sector tenancy has ended), they will be treated as automatically being in priority need, provided the fresh application is made within two years as having accepted the previous offer.
Note: This section came into force in England in April 2012. There is no commencement date as yet in wales but it was included in the homes for Wales White Paper last year. As the Homes for Wales Bill is due to be laid before Parliament this november a commencement date is likely to be in summer 2014.
Suitability of accommodation
Section 206 of the Housing Act 1996 provides that local authorities may discharge their functions to secure that accommodation is available for applicants in one of three ways:
• from the local housing authority’s own housing stock
• by obtaining accommodation for the applicant from some other person
• by giving advice and assistance to the applicant to allow them to secure accommodation from another person.
In all cases the accommodation secured by the applicant must be suitable. This applies in respect of all powers and duties to secure accommodation under Part 7 of the 1996 Act, including interim duties such as those under Section 1881 of the 1996 Act and Section 200 (1).
Homelessness (Suitability of Accommodation) Wales Order 2006
This was approved was approved by the National Assembly for Wales in March 2006. The order is set in the context of the Welsh Government’s National Homelessness Strategy of objectives to reduce the use of bed and breakfast accommodation for homelessness people and to ensure that the form and quality of temporary accommodation meets the needs of the homelessness household.
The order was introduced in three stages between 2006 and 2008. This legislation deals with the use of bed and breakfast accommodation and, separately, other shared accommodation.
It provides more stringent rules than England regarding the use of bed and breakfast accommodation and shared accommodation to discharge homelessness duties. It is not regarded as suitable in respect of any applicant unless it meets the basic standard, and is deemed unsuitable for all those considered to be in priority need subject only to specific exceptions. Shared accommodation in Wales is also regarded as unsuitable subject to the same exceptions.
The above provides a snapshot of the current differences in homelessness law, there are other differences in respect of housing practice in England and Wales briefly set out as follows:
• Allocations under Part 6 of the Housing Act 1996.
• The Localism Act 2010 brings about differences in security of tenure, as England operates a flexible tenancy as a new form of secure tenancy.
• Differences with regard to succession of a secure tenancy. The Localism Act 2010 has brought succession for secure tenants in line with succession under the Housing Act 1988 in England.
• England will soon see the introduction of the new mandatory ground for possession in anti social behaviour cases in respect of assured and secure tenancies. The Welsh Government has indicated that this will follow in Wales but is unlikely to get introduced at the same time. Conversely, though, the Renting Homes Bill for Wales proposes the abolition of the use of the mandatory ground in rent arrears cases.
The next 12 months are likely to see further and extensive changes to housing law and practice… keep up to date by visiting the Welsh Government website.