Note – you can download the pdf version of this article >> here.
This item is an introduction to our free training material for homelessness officers.
The Homelessness Prevention Toolkit
Since at least 1997 the hot topic of conversation for council homelessness units has been ‘Homelessness prevention’.
What is needed for a robust approach to homelessness prevention is a sound knowledge of housing law and possession proceedings.
This handy short free guide provides numerous hints, tips and bits of case law which a homelessness prevention officer can use to prevent homelessness by keeping people in their homes, which is a better place to be than a B&B or hostel.
Can you imagine how many rent and mortgage possession claims are completely flawed but which go through for the want of decent advice or a bit of assistance?
Most of them end up in the homelessness unit when they didn’t in fact need to be there at all.
We will examine Section 175 of the Housing Act 1996 – the definition of Homelessness, section by section and invite you to look at them from a different angle.
Ben Reeve Lewis
S 175 Housing Act 1996:
(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.
A tenant or a mortgage borrower cannot lawfully have their home taken away without the landlord or the lender first obtaining a possession order and then a Bailiff’s Warrant from the court.
Until that process has completed the tenant or borrower “occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation”.
A licensee also “has an express or implied licence to occupy” until permission to occupy is withdrawn (Although some licences will still need a court order).
With that in mind have a look at this classic defining case
Regina v. LB Newham ex parte Sacupima 2000. 1st Limb – Person still has a lawful right to remain until the bailiff’s warrant has been executed
Ms Sacupima, a single parent with 6 children, was to be evicted by court order from private rented accommodation, applied to the council as homeless. The council told her to wait until the day of eviction and then approach the council’s offices.
The court of appeal said that occupation “by virtue of an enactment or rule of law, restricting the right of another person to recover possession” includes the period between expiry of the possession order and the execution of the bailiff’s warrant. Therefore a person does not become homeless until the warrant has been executed by the bailiff. However, 28 days before the eviction date, the household would be threatened with homelessness so the council would need to open a case, unless they could find another way to prevent homelessness beforehand.
S175 (3) 1996 Housing Act
A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
It is for the council to decide what is ‘Reasonable’. It isn’t a clear line in the sand. The homelessness worker has to look at all the relevant facts presented to them, consider them all and make a sensible decision.
Regina v. Kensington & Chelsea RLBC ex p Moncada (1997) 29 HLR 289, QBD – Reasonable for husband to reside with ex-wife even though she has a new partner.
Mr and Mrs Moncada were tenants of a 4 bedroom council house which they occupied with their children.
The marriage fell apart and Mrs Moncada found a new beau Mr Williams. Mr Moncada was imprisoned for drugs related offences and the new suitor all but moved in.
An incident occurred in 1993 where the new partner assaulted one of the Moncada’s boys resulting in the child being placed on the ‘At risk register’ however no further incidents occurred.
Mr Moncada divorced his wife upon release from prison. Mr Moncada obtained custody of the two boys whilst Mrs Moncada was awarded the daughter and in 1995 Mr Moncada made a homeless application.
The council decided Mr Moncada was not homeless because he was still a joint secure tenant and that it was reasonable for him to continue to occupy due to the size of the property and the prevailing shortage of accommodation in the district.
Judge Popplewell decided for the council and refused permission for judicial review because the council had taken into account the relevant facts of the undesirable state of affairs vis a vis the new semi-resident partner, the council’s available housing stock and the previous incident of violence against the son.
Having considered the facts they had addressed each of them and were entitled to reach a decision that it was reasonable for Mr Moncada to remain.
You see what appears to be a harsh decision was supported by the courts because the council took into account the relevant facts and addressed them in making their decision.
It is for the council to decide and decisions fail so often because the homelessness officer does not investigate fully and/or provide adequate evidence and reasoning in their S184 letter.
Regina v. LB Croydon ex parte Jarvis 1994 26, HLR, 194 QBD – – council can advise applicant to wait until possession is granted before deeming homeless
Ms Jarvis received 2 months notice to terminate her Assured Shorthold Tenancy and applied to the council as homeless. They told her to remain until the possession was granted, ignoring the fact that she had no defence and would be liable for costs.
On judicial review, it was held that it was not necessarily wrong for authorities to require an applicant to remain in possession until a court order is made but they must recognise that this goes against the code of guidance. The court acknowledged that the same decision may not be applicable if it had concerned a decision on intentionality.
In arriving at their decision the council showed in its investigations that it had taken into account the tenant’s position in terms of additional costs and the inability to mount a defence to proceedings.
They also showed that they had regard to the landlord’s position in being forced to go through with possession action.
They further showed that they had also considered the council’s own position in relation to the costs of suitable, available accommodation and the prevailing circumstances in the district.
Again, as with Moncada above, what shored up the council’s decision, despite going against the code of guidance, was evidencing what they had taken into account as relevant information and how they had considered it.
Judge Collins QC said “I am not saying that in all circumstances a council can say ‘Wait until you are evicted’. But it is lawful for them to adopt that attitude if they consider all the relevant circumstances.”
S 175(2) 1996 Housing Act
“A person is also homeless if s/he has accommodation, but –
s/he cannot secure entry to it, or
it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where s/he is entitled or permitted both to place it and to reside in it.”
An applicant may have been illegally evicted and can’t for the time being get back in, even though they have a right to remain. Alternatively they may own a home but have tenants who they cannot evict. Or they might live in a caravan or boat but have nowhere to put it.
Regina v Chiltern DC ex P Roberts (1991) 23 HLR 387 QBD. – Travelling showmen not homeless whilst touring.
The Roberts family were showmen who owned their own caravan but were being turfed off of their regular site.
They made a homeless application which was rejected by the council because they were about to leave for a tour and would be placing the caravan elsewhere.
They appealed saying they did not have a place to live that provided any sense of permanency or continuity.
The courts sided with the council on the basis that whilst on tour they did have caravan sites where they could place their home and so were not homeless although it was acknowledged by the council that come the end of the touring summer season, if they made a fresh application, they would likely be homeless at that point.
S 175(4) 1996 Housing Act
“A person is threatened with homelessness if it is likely that s/he will become homeless within 28 days”
You have to think back to the first limb of S175 about having a legal right to occupy accommodation. An impending possession hearing won’t necessarily result in homelessness within 28 days, as the case could be thrown out, adjourned, successfully defended etc but what if they do have a possession order? Is it too late? No it isn’t.
Setting aside a possession order
The courts operate under the Civil Procedure Rules (CPRs) Having some understanding of the CPRs can be an important element of homelessness prevention work.
CPR 39.3: allows tenants and mortgagors to request that an already granted possession order be set aside if they didn’t attend the original possession hearing, providing there are three elements in place:
- The person must have a genuine reason for not attending – such as hospital, arrived late, went to the wrong court etc.
- There must have been a good chance of success if they had attended, even if this only means being awarded a suspended possession order rather than an outright one.
- They must have acted promptly as soon as they found out.
If the above applies then the claimant, with the officer’s assistance, fills in a form N244 obtainable from Her Majesties Court Service website then an application can be made to set aside the possession order before the execution of the bailiff’s warrant.
If a warrant has already been issued then a successful application to set aside would render the warrant in-operative.
CPR 3.1 (2) This is another power to set aside
Forcelux v. Binnie (2009) EWCACiv 854 – a short hearing for possession is not a trial.
The key here is the definition of ‘A trial’ as opposed to a ‘Hearing’.
Mr Binnie was a long leaseholder with 94 years left on his lease. Forcelux sought possession on default of ground rent and service charges totalling £893.
He did not respond to any paperwork served by Forcelux or the courts because he was actually living elsewhere with his girlfriend and did not return to the flat during that time to collect his post.
As soon as he became aware that possession had been granted he wrote a cheque to clear the outstanding amount and sent it to Forcelux’s solicitors but they didn’t cash it and sent it back.
So Binnie launched an appeal based on the three requirements of CPR 39.3:
- He acted promptly when he found out.
- He had a good excuse for not attending the hearing.
- Had he attended his argument would have stood a reasonable chance of success.
But his case was refused so he took it to the court of appeal.
The Court of Appeal hearing Forcelux’s case against the decision to set aside was upheld in favour of Mr Binnie but for slightly different reasons than those advanced by him.
The CA pointed out that a 10 minute possession hearing could not really be called ‘a trial’ as referred to in CPR 39.3 and pointed out that CPR 3.1 (2) gives the court additional case management powers to “Take any other step to make any other order for the purpose of managing the case and furthering the overriding objective (Justice)”.
In the light of Forcelux it seems likely that the best reason for applying to set aside when filling in the N244 would be to apply under CPR 3.1 (2).
The same three criteria for applying is still good reasoning but is less stringently enforced when applying under CPR 39.3 than it would be under CPR 3.1 and, as the CA pointed out a short possession hearing should not be construed as ‘A trial’.
It seems reasonable to assume that a 3 day hearing for anti-social behaviour with various bits of evidence and witnesses, would reasonably be called ‘A trial’
So there you go. Even if a possession order has been granted it is still possible to get it removed, thus lifting the threat of homelessness within 28 days – Homelessness prevented.
And what if the applicant presents having been told to leave by their landlord. If they are licensees then that may well be enough (but not always) but if they are a tenant a court order will be needed and it isn’t always clear if they are a tenant or a licensee.
When is a licence not a licence?
We all know what an excluded occupancy is, right? Generally (but not solely) we are talking a lodger arrangement in common language.
Person rents a room in a house where his landlord also lives and shares facilities such as bathroom and toilet with either the landlord or a member of the landlord’s family
Additionally the landlord must be truly resident, in other words, occupies the property as his sole or principal home and has been there since the occupant moved. If all these factors are in place then the applicant will be an Excluded Licensee.
What he is excluded from is due process, so all a landlord needs do to get them out is give reasonable notice, commonly 28 days, and this ends the right to occupy.
So a lodger makes a homeless application and, having no protection, is threatened with homeless within 28 days but what if they aren’t an excluded occupier? What if they are actually a tenant, requiring full possession through the courts?
Common law tenancies.
These are sometimes written up as ‘Occupiers with basic protection’ or ‘Unprotected tenancies’
They are created when an occupier lives in the same property as the landlord but where they don’t share any facilities with them, i.e. both live at 32 Acacia Avenue but the landlord has a self-contained flat on the ground floor, while 4 other occupants live above sharing only with each other.
In such cases your applicant will not be an excluded occupier and is therefore entitled to be served with Notice to Quit first and the landlord will have to apply to court for a possession order.
Therefore, if a person presents saying they are homeless within 28 days because their resident landlord has told them to leave, you need to ask a few more questions.
This applies even if they have a written contract saying “Lodger agreement” or some such.
This would be what is called ‘A sham agreement’. Don’t be fooled by it.
A person’s security of tenure is not determined by what is written on paper, which brings us to the Grand-daddy of rental case law:
Street v Mountford 1986 (1985) – the definition of a tenancy at common law.
Mrs Mountford rented a 1 bed flat from Mr Street using what he called “A non-exclusive occupation agreement”. There ain’t no such animal.
The contract stated that the landlord could move anyone he liked in with Mrs Mountford and reserved the right to enter whenever he saw fit to carry out inspections and do repairs.
He treated her accordingly as a licensee and told her to leave but the case ended up in the higher courts where judge Templeman helpfully made the determination that regardless of what a contract said about a person’s security of tenure the matter would, in fact, be dictated by 3 key elements which have become known as the three hallmarks of a tenancy.
- Rent or Service – must be part of the arrangement.
- For a clear term i.e. weekly, monthly etc.
- The occupier must genuinely have exclusive occupation of the property, even if it’s only 1 room.
Judge Templeman decided that the two clauses Mr Street held over Mrs Mountford were not genuine, and therefore it was merely a cynical attempt to reduce her true security from a tenancy to a licence.
He famously said:-
“The manufacturer of a five pronged implement for manual digging results in a fork. Even if the manufacturer, unfamiliar with the English language, insists he has made a spade”.
In other words if it bears all the hallmarks of a tenancy, then it’s a tenancy, regardless of what a landlord or a written contract may say.
In homeless prevention terms don’t be fooled by a contract. Ask about the reality of the situation.
If it’s a tenancy then the landlord needs to get a possession order first and the person in front of you brandishing a ‘Licence’ agreement and a note from the landlord telling her to leave next week is not threatened homeless within 28 days, they have a right to remain until a court order is granted.
And remember, even if the applicant has a bailiff’s warrant hot-to –trot, it is still not too late to get back into court and either get the warrant suspended or the possession order set-aside.
Many’s the time I’ve been in front of a judge at 10:30am with a warrant to be executed at 11am with the bailiff sitting behind me waiting to see if we get all bets called off.
It’s rarely too late to prevent homelessness AND did you know you can even get someone back in after the locks of have been changed?
But that’s for another time.
Now for something that can help you:
Ben’s Homelessness Prevention Toolkit
In a crisis culture where homelessness applications are rising by the day homelessness prevention is rapidly becoming the essential core skill for officers in the frontline
Each district has it’s own schemes and initiatives which help prevent homelessness through the provision of alternative accommodation but at its root so many homelessness applications can be dealt with by staff having a good working knowledge of the various laws and legal procedures that can help sustain an applicant’s home and take the pressure off of a beleaguered homelessness unit.
Modules covered on this course:
- Identifying an applicant’s legal rights to remain in a property
- Unenforceable terms in tenancy agreements
- The Deregulation Act 2015 and the 9 different ways that a S21 notice can be invalid
- Ending harassment to make a person’s home ‘Reasonable to occupy’
- Negotiations with mortgage lenders and the 10 alternatives to repossession
- Dealing swiftly with illegal eviction
- Counterclaims in possession proceedings
- Adjourning hearings, suspending warrants, buying time.
Course delegates will leave the course with a toolbox of skills and knowledge that will help increase their abilities to prevent homelessness, sustain tenancies and come to agreements with mortgage lenders.
Who should attend?
The course is designed primarily for homelessness prevention and housing options staff but is also essential material for advice workers in different areas and homelessness investigation officers
Included in the package.
All of our courses are supported by access to online post course content of case law database, template letters, sample court forms, links to valuable further resources, a discussion forum for delegates and a post-course test to be completed by delegates two weeks after delivery before their certificate is issued.
If you wish to book Ben for this course:
Please use our standard booking form: