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There can be no doubt that interpreting that part of the legislation which deals with intentional homelessness has been by far the most problematic area for both local authorities and applicants. In fact, most of the (now extensive) court actions brought on behalf of applicants have focused on 'intentionality'.
The cause of the problem is that the relevant Section of the 1987 Act (26) is the vaguest and most ambiguous part of the legislation. Indeed, one judge described it as a 'semantic nightmare'. It is therefore particularly important that all staff involved with homelessness have a clear understanding of the principles upon which it would be appropriate to classify an applicant as intentionally homeless.
Examples of Intentionally Homeless Applicants are:-
LEGAL DEFINITIONS(SECTION 26 OF THE 1987 ACT)
The 1987 Act states that:
A. A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
B. A person becomes threatened with homelessness intentionally if he deliberately does, or fails to do anything, the likely result of which is that he will be forced to leave accommodation which is available for his/her occupation and which it would have been reasonable for him to continue to occupy.
C. For the purposes of 'A' and 'B' above, an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.
D. Regard may be had, in determining for the purpose of 'A' and 'B' above, whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local authority to whom he applied for accommodation or for assistance in obtaining accommodation.
Interpretation of legal definitions
When Section 26 is analysed, it can be seen that there are three tests, which must be applied before an applicant can be held to be intentionally homeless. It is essential to note that all threerequirements must be fulfilled for an 'intentionality' decision to be valid (It should also be understood that it is for the Homeless Section to establish that the applicant became homeless intentionally. It is not the responsibility of the applicant to prove the converse: that is, that he/she did not become homeless intentionally).
The three tests are:
A. The applicant must deliberately have done, or failed to do, something the consequence of which is that he/she has ceased to occupy accommodation which was at that time available (or, alternatively, if the applicant is threatened with homelessness he/she must have deliberately done or failed to do something of which the likely result was that he/she would be forced to leave the accommodation).
The first question which must be answered is, 'was accommodation available for occupation by the applicant and any other person who might reasonably be expected to reside with him/her?' For example, if an applicant's immediate family was living in two separate properties due to shortage of space, and the occupation of one or other of the properties would lead to statutory overcrowding (see previous chapter) then to determine that he/she was intentionally homeless would be inappropriate. A more common example of the 'available accommodation' question is likely to be instances where an applicant turns down an offer of permanent housing (whether a South Ayrshire, or, Housing Association property available through the Council's nomination rights). Although the applicant would not, in the technical legal sense, be intentionally homeless the offer of accommodation fulfils the Council's duty towards the applicant.
The second question relates to the applicant having 'deliberately done or failed to do something in consequence of which he/she ceases to occupy accommodation'. The most common scenarios in relation to this clause are likely to be as follows:
Rent Arrears/Failure to maintain mortgage repayments.
A person who loses his/her house because of a wilful and persistent refusal to pay rent, or a mortgage, should be regarded as intentionally homeless. However, this would not apply if the debt arose due to real financial difficulties or to an unforeseen or unavoidable change in the applicant's circumstances; for example, compulsory redundancy or long-term illness. Where this situation looks likely to develop, staff should pro-actively seek the help and assistance of any agency or department who have an involvement with the individual or family unit. In practice this could mean that staff speak to an individual's Social Worker at an early stage in the escalation process in an attempt to avert any potential problems continuing. This should not only be done as a matter of good practice but also due to the realisation that there may well still be a duty to accommodate even where an 'Intentional' decision has been taken.
The test of whether someone is in real financial difficulties is, if he/she continued to pay the housing costs, the amount of disposable income left would be equal to or less than someone entirely reliant on income support. For this purpose, 'housing costs' are: current rent, but not any arrears; repayments on an original mortgage (including, where appropriate, monthly endowment instalments) but not arrears; any compulsory service charge levied in connection with communal services, such as stair cleaning in blocks of flats. Housing costs do not include Council Tax payments, or any other form of local taxation. Where an applicant is, or was, self employed, the Homeless Service Manager should be given full details and asked to calculate the notional income - this would be similar to the process involved in determining a self employed person's income for housing benefit purposes (an alternative would be to examine the applicant's Schedule D tax returns). This test should also be applied to applicants who have been sequestrated.
It should be noted that this is one of the most difficult areas of the legislation to interpret, and great care must therefore be exercised when assessing applications.
Voluntarily relinquishing settled accommodation
Any applicant who relinquishes a tenancy, or leaves settled accommodation, would be classified as intentionally homeless. It should be noted that certain categories of tenants have either no security of tenure, or, very limited rights (e.g. Short Assured tenants or, in England, Assured Short-hold tenants) and, for this reason they would not normally be intentionally homeless once the landlord had indicated in the prescribed legal manner that he/she wished to recover possession of the property. This clause also applies to any applicant who had voluntarily sold property, and had not made provision for alternative accommodation.
A failure to exercise occupancy rights.An applicant who declines to test his/her occupancy rights under the Matrimonial Homes legislation would normally be considered intentionally homeless. However, this does not apply to persons who would be faced with domestic violence, or the threat of domestic violence, if they chose to test their occupancy rights in Court.
A person who becomes homeless as a result of losing accommodation tied to his/her employment would not normally be considered intentionally homeless. However, if he/she voluntarily relinquished the job the case should be looked at more closely with a view to ascertaining the reasons. A decision on the case should then be taken in conjunction with the Homeless Service Manager.
An applicant who was evicted as a result of a Court Order granted because of his/her anti-social behaviour would be considered intentionally homeless. This would also apply to any anti-social conduct carried out by a member of the applicant's household.
13.9 Failure to make arrangements before leaving settled accommodation
An applicant who failed to make arrangements for alternative accommodation before leaving settled accommodation would normally be classified as intentionally homeless. (This applies equally to people leaving accommodation outside of England, Scotland Wales or Northern Ireland: for example, to persons formerly resident in Northern Ireland, another EC country or Australia/New Zealand). It would not, however, apply to a person fleeing, or in fear of, domestic violence.
B Accommodation must be reasonable for the applicant to continue to occupy.
There are two considerations here:
(i) The condition of the housing actually occupied:
If an applicant voluntarily relinquishes a property which met the statutory definition of overcrowding, or his/her property was in one of the categories of 'unfitness' outlined in as discussed in the previous chapter, then the applicant would not be classified as intentionally homeless as it would not be reasonable for him/her to continue to occupy the accommodation.
(ii) The personal circumstances of the applicant:
The most common example here is likely to be a person fleeing, or in fear of, domestic violence. Someone in this predicament should never be classified as intentionally homeless ('domestic' violence is violence from a person living with the applicant as a member of his/her family, or violence from a person who used to live with the applicant). Similarly, an applicant who declined to exercise his/her rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 because of fear of violence from a spouse or co-habitee would not be determined as intentionally homeless.
C. The applicant must have been aware of all the facts before taking, or failing to take, the deliberate actions referred to in A above. An act or omission in 'good faith' on the part of someone unaware of any relevant fact would not be regarded as deliberate.
The test here is not merely whether a 'reasonable' person would have been aware of all the relevant facts. For example, a mentally ill person or a confused/demented old person would not normally be judged to have acted deliberately.
Another example of a non-deliberate act or omission would be someone who had accrued rent or mortgage arrears without being aware that he/she might have been entitled to housing benefit and/or other welfare benefits. However, in view of the intensive counselling which Council, Scottish Homes and Housing Association tenants receive, and the widespread availability of debt and benefit advice, it would only be in exceptional circumstances that this would apply. Similarly, a claim that an applicant did not realise the consequences of his/her actions in relinquishing settled accommodation would rarely be accepted.
There are obviously many other examples of 'non deliberate' actions and 'acts or omissions in good faith' and it would be impossible to list them all in this manual. Each case will therefore require to be judged on its merits. In assessing such cases the principle would be that, while the Council would be sympathetic, a decision by an applicant, for example, to relinquish settled accommodation would in normal circumstances lead to a determination of intentionality.
Causality/breaking the chain of causation
Although the Code of Guidance points out that, 'in assessing whether a person has become homeless intentionally, one of the prime considerations should be the immediate cause of homelessness rather than events which may have taken place previously ', this does not mean that housing authorities should not look beyond that immediate cause'. A perfect example of this principle being applied can be seen in the important case of, Din v Wandsworth London Borough Council 1 AC 657, 1983.
The facts of the case were that Mr Din voluntarily relinquished the let of settled accommodation in Wandsworth and moved his family in with a relative. After a time his relative asked them to leave and he approached Wandsworth Council for assistance. However, Wandsworth held him to be intentionally homeless because he had voluntarily given up settled accommodation. Although the County Court overturned the Council's decision the Court of Appeal and, subsequently, the House of Lords, upheld the Council's decision (although only by a 3-2 majority). As one of the Judges said,
'The material question is why he became homeless, not why he is homeless at the date of inquiry'.
In other words, the chain of causation between Mr Din giving up settled accommodation, and subsequently becoming homeless was unbroken. However, it is recognised that if an applicant either obtains 'settled' accommodation between the time he/she became homeless intentionally and subsequently losing accommodation unintentionally, or, forms a new and independent family unit, then the original act of intentional homelessness is effectively purged. Therefore, for these purposes the following guidelines should be followed:
A. A period of settled accommodation in excess of 12 months in the previous three years, or periods adding up to more than 12 months, is to be treated as extinguishing a previous incidence of intentional homelessness.
'Settled' accommodation is: owner occupation; a regulated, secure, or assured/share assured tenancy; residence for the specific purpose of giving permanent support to a parent, or parents, or other close family member. It does not include: a stay in hospital or prison; accommodation in a bed-and-breakfast establishment; a let in respect of seasonal employment; temporary residence with parents or other relatives; living as a lodger with non-family members; a holiday let.
B That where a new and independent family unit has been formed this may, in certain limited circumstances, expunge the previous 'intentionality'. However, the separation of two spouses or partners is not, in itself, sufficient. There must be clear evidence that a new unit has been formed, and this would normally mean either an application for a legal separation or a divorce.
N.B. FORMER SOUTH AYRSHIRE COUNCIL TENANTS
Any applicant who is a former South Ayrshire Council tenant, and who might qualify under this section, should have his/her application referred to the Homeless Service Manager who will arrange to discuss it with the appropriate Area Housing Manager.
INTENTIONAL HOMELESSNESS AND THE FAMILY UNIT
Although, in general, acts or omissions which are not those of the applicant should not be taken into account, it has been widely accepted that the acts or omissions of a member of the applicant's family unit can lawfully be examined when considering an application. This principle was clearly explained by one Judge, who pointed out.
'.... it (is) perfectly proper in the ordinary case for the housing authority to look at the family unit as a whole and assume, in the absence of material which indicates to the contrary, where the conduct of one member of the family was such that he should be regarded as having become homeless intentionally, that that was conduct to which the other members of the family were a party.'
Therefore, in the following cases it would be legitimate for the Council to treat the applicant as intentionally homeless, because he/she could be said to have acquiesced in the event which led to the loss of accommodation (this is not an exhaustive list):
Where spouses/co-habitees had failed to take steps to ensure that their partner made rent or mortgage payments.
Where spouses/co-habitees had agreed to the voluntary termination of tenancies and other occupancy rights.
Where the applicant had lost accommodation due to the anti-social conduct of a member of his/her family unit, and had taken no steps to curtail that conduct or to disassociate him/herself from it.
In some of these instances it may be difficult to determine that the applicant actually acquiesced in the decision. This is especially true of cases involving failure to maintain rent payments/mortgage instalments. The general principle is that, if an applicant knew of the conduct/omission, and took no steps to prevent it, then he/she would normally be classified as intentionally homeless. As with all intentionality decisions, it is important, firstly, to treat each case on its merits, and, secondly, to investigate the case thoroughly.
To assist in the decision making process, it is instructive to consider three contrasting court cases:
AR V Croydon London Borough Council ex parte Webb QBD 1984
Although the applicant - Webb - argued that he did not acquiesce in his wife's non-payment of rent, and was not the tenant of the house from which they were evicted, Croydon's decision to classify him as intentionally homeless was upheld. This was because there was evidence that he knew the rent arrears were mounting and took no action, despite having the means to pay them off.
BR V Swansea City Council ex parte Thomas HLR 1983
While the applicant - Thomas - was in prison, neighbours complained about anti-social behaviour in the council property of which he was a tenant. Court proceedings were raised and Thomas was given the opportunity to attend the hearing or, alternatively, to file a defence. However, he declined to follow either course of action. An eviction order was granted to the Council.
Mr Thomas applied to Swansea City Council as a homeless person, but was held to be intentionally homeless. He challenged this decision but the High Court held that, although he had been in prison at the time, he had acquiesced in the conduct of his family unit because he had been aware of the complaints about the conduct and the court proceedings, but had taken no action.
CR V Penwith Council ex parte Travena HLR 1984
In this case the applicant's wife, Mrs Travena, was the tenant of a council house. However, she gave up the tenancy in order to go and live with another man. Mr Travena refused to leave the family home, but was eventually evicted. He applied for assistance as a homeless person, but was found to be intentionally homeless because he was party to his wife's decision.
When the case came to court, this decision was held to be unlawful on the grounds that he had clearly not acquiesced in his wife's decision to surrender the tenancy.
Bearing in mind the point previously made earlier in this chapter that it is for 'the housing authority to establish that the applicant became homeless intentionally', it is of great importance that comprehensive information on an applicant's circumstances is obtained. It should be noted that, as in previous sections, the undernoted list is not exhaustive:
A Rent Arrears/Failure to maintain mortgage payments
Full details of the applicant's income for the period in which the arrears were accumulated should be obtained. For employed people, the wage/salary advice details produced by employers are sufficient. Alternatively, a letter from the employer would be acceptable. If an applicant is on benefit, the relevant order book, or a letter from the appropriate agency could be accepted.
In the case of the self-employed, the audited accounts of the business should be inspected. This would be similar to the practice followed when calculating an applicant's income for housing benefit purposes.
As far as the housing costs are concerned, the applicant's rent or mortgage (and, where applicable, service charge) payments should be checked, as appropriate, from the rent book/lease or mortgage repayment book/agreement. If those were not available, a letter from the landlord or mortgagor would suffice - a standard letter is available to be sent to the mortgagor at this stage. A financial appraisal should be undertaken to determine whether or not the applicant is above the income support level.
B Voluntarily relinquishing settled accommodation
In the case of tenants, whether public or private sector, a copy of the lease, tenancy agreement or licence is required. If this was not available a letter from a solicitor giving details of the agreement or a letter from the landlord should be requested.
C Failure to exercise occupancy rights
The applicant's precise legal rights under the Matrimonial Homes legislation should be carefully checked. If there is no violence involved the applicant should be directed to pursue their rights under Matrimonial Homes Legislation. It is, however, important to point out that each application should be viewed according to the particular circumstances of their case.
D Condition of the housing occupied
If the applicant had relinquished accommodation due to statutory overcrowding or 'unfitness' then the property concerned must be inspected to ensure that it meets the necessary criteria.
E Persons fleeing, or in fear of, domestic violence
All reasonable steps should be taken to obtain information which supports the applicant's case. Therefore, wherever possible or practical written evidence should be sought from one, or more, of the undernoted sources:
However, if clear evidence in the normal sense cannot be found the applicant's expressed fears should be accepted. It should be noted this does not mean that no attempt should be made to obtain evidence from the sources referred to above. It is important that every application is investigated thoroughly.
F. Harassment/Intimidation/Violence from a non-domestic source
An applicant who relinquished accommodation in these circumstances would not normally be categorised as intentionally homeless, however it is essential that the circumstances are fully investigated. Therefore, a written report should be requested from the Police and any other agency which might have knowledge of the problem, e.g. Social Work or another local authority.
Finally local connection should be established. If there is no local connection with the area then the applicant may be transferred to the area where they have a local connection.
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