First InterviewHas the client submitted a homeless application to the LocalAuthority?It will often assist the client if the advisor assists him or her tocomplete the homeless application form or provides a lettersetting out the basis of the application.Has the Local Authority accepted the application?The Local Authority has a duty to accept the application andis susceptible to judicial review procedings if it refuses to do so.
First Interview (2)Has the Local Authority agreed to accommodate the clientpending the making of a section 184 decision?The Local Authority has a duty to accommodate the applicantuntil the applicant has been issued with a section 184 decision.Has the Local Authority agreed to look after the clientsbelongings?The Local Authority has a duty to protect the clientspossessions and belongings until a section 184 decision ismade.
The Five Tests:1. Eligibility;2. Local Connection;3. Priority Need;4. Intentionality;5. Homelessness.
Test One: EligibilityIs the Applicant Eligible for assistance?1. Was the client born in this country? Or2. Does the client have indefinite leave to remain? Or3. Is the client an EC citizen pursuing treaty rights? Or4. Is the client the parent of an EC citizen pursuing treatyrights?
Test Two: Local ConnectionHas the client lived in the area for 6 months in the last 12months or 3 years in the last 5 years?Note 1: Refugees do not have to show a Local Connection asNASS accommodation is not accommodation of choice.Note 2: Local Connection Rules do not apply in cases ofdomestic violence (and I would also suggest in other cases ofviolence).
Test Three: Priority Need (1):Is the client in priority need? It has to be shown that the client isvulnerable if homeless.The vulnerability test was set down in R v Waveney DC ex pBowers and R v Camden LBC ex p Pereira as:"less able to fend for oneself so that injury or detriment will result where a less vulnerable man will be able to cope without harmful effects."
Test Three: Priority Need (2)Generally the client will meet at least one of the followingcategories: ● Pregnant ● Dependent Children ● Old age, mental illness or disability ● Natural disaster ● 16 or 17 years old ● Under 21 and "in care" ● Member of the armed forces ● Custodial sentence ● Fleeing violenceIn some cases more than one...
Test Four: IntentionalityHas the client deliberately done or deliberately failed to do anact as a consequence of which he or she has becomehomeless?The word "deliberately" imports the legal doctrine of "good faith"eg: a woman fleeing domestic violence could be said to havedeliberately fled her her home but she would be acting in goodfaith and would not therefore fail this test.Housing officers will generally find an applicant with rent arrearsto be intentionally homeless. This is not necessarily the case.
Test Five: HomelessnessAn applicant can be homeless without necessarily being in theposition that he or she is actually sleeping rough. For example the applicant would be homeless in the followingscenarios: ● Threatened with homelessness in 28 days (eg received a bailiffs warrant); ● Living in accommodation that is unfit for human habitation; ● Living in accommodation that is unfit for the applicants continued occupation (eg the client is disabled and occupying the property requires climbing stairs); ● Applicant fears violence at the property; and ● Applicant has no security of tenure in the property and has been asked to leave by the tenant or owner of the property.
Procedure: Pre Section 184 decisionletterA Local Authority may accommodate families in Bed andBreakfast accommodation: "Where there is no alternative accommodation available for occupation by the applicant, the authority may house them in bed and breakfast accommodation provided any such period, or total of periods, does not exceed six weeks"Bed and breakfast is carefully defined so as to excludeaccommodation managed by Housing Associations or LocalAuthorities.
Procedure: Section 184 decision letterThe Local Authority must provide the client with a section 184decision and this must be in writing.The section 184 decision must advise the client of his orher right to request a section 202 review of the decision.There are two possible outcomes which I shall refer to as apositive decision (where the Local Authority accepts a duty tohouse the client) and a negative decision (where it does not).The advisor should be aware that the client will often think thatbecause the letter comes from a Local Authority it must be right- it rarely is...
The Negative section 184 decisionProvided that there are grounds to challenge the section 184decision (the Local Authoritys refusal to accommodate theapplicant) the applicant must request a section 202 reviewdecision within 21 days that the date that he or she received thesection 184 decision or that his or her solicitor received it.(It is not necessarily 21 days from the date that the letter isactually dated.)The advisor should, as a general rule of thumb, request theLocal Authoritys Housing File at this stage.
Accommodation pending a section 202review decisionThe Local Authority no longer has a duty to accommodate theClient but they have a discretion to accommodate the Client.If the Local Authority refuses or declines to exercise itsdiscretion it is susceptible to judicial review proceedings.The Local Authority must at this stage consider what are knownas the "Mohamed criteria" and the criteria must be appliedfairly. "Fairly" is a legal concept rather than what theAuthority or what the Client consider to be fair.
How long should it take for a section202 review decision to be made?The Local Authority should notify the Client of the section 202review decision within 8 weeks of the Local Authority receivingthe request for the review.This deadline can be extended by consent between the LocalAuthority and the Client.
The positive section 184 decisionThe Local Authority has admitted a duty to house the Client andmust therefore provide suitable accommodation for the clientand his or her family.The applicant has 3 options when offered accommodation: ● Accept the offer; ● Refuse the offer and challenge the suitability of the offer; or ● Accept the offer and challenge the suitability of the offer.The third of these options is generally the best option (the "Haveyour cake and eat it" option) even where the Client is not happywith the offer made.
Refusing an offer of accommodationThe client should be advised to only refuse an offer in extremecircumstances as there is a serious risk that the Local Authoritywill find the offer to be suitable and discharge its duty toaccommodate the client.The Client will then need to establish an error of law in order tobe able to successfully chalenge the decision such as"Wednesbury unresonableness".
The Section 202 Review decision letterThere are three potential outcomes to a section 202 reviewdecision.These are:1. It supports the original section 184 decision.2. It quashes the section 184 decision and accepts a duty to house the client.3. It quashes the section 184 decision and remits the matter to the original decision maker for a further decision.
The Section 202 Review Decision (2)If the Local Authority issues the client with a negative section202 review decision (ie: one where the Authoritys decisionmake supports the original section 184 decision) the Client has21 days from receiving the decision letter to issue a section 204appeal in the County Court.(The Local Authority retains a discretion to review a section 202review decision but cannot be demanded to review a section202 review decision.)Again the Local Authority has a discretion to accommodate theclient pending the outcome of the section 204 appeal but achallenge to the failure to exercise this discretion is by way ofsection 204A appeal rather than judicial review proceedings.
The section 204 appealA section 204 appeal is far faster than ordinary litigation and willtake no more than 3 months to conclude.The Judge will normally either approve the section 202 decisionor quash the decision and send it back to the Local Authority fora further decision.