Homelessness and council housing decisions

Homelessness & Council Housing — Key Disputes

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Priority need — the vulnerability test — Hotak v Southwark [2015] — a local authority has a full housing duty to eligible homeless applicants in "priority need." The priority need categories include: families with dependent children; pregnant women; people vulnerable as a result of old age, mental illness or handicap, physical disability, or other special reason; and care leavers under 21 (HA 1996 s.189). The key disputed category is vulnerability — assessed by comparing the applicant with an "ordinary person" rendered homeless, not with the general population (Hotak v London Borough of Southwark [2015] UKSC 30). Where a medical condition, mental health issue, physical disability, or other factor would make the applicant significantly more vulnerable than the ordinary person without accommodation, priority need is established. A solicitor challenges negative priority need decisions — assembling medical evidence, preparing the s.202 review submissions, and (if necessary) appealing to the County Court under s.204.

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Intentional homelessness — HA 1996 s.191 — a local authority can refuse the full housing duty where it finds the applicant is "intentionally homeless" — having deliberately done or failed to do something in consequence of which they ceased to occupy accommodation that was reasonable to continue to occupy (s.191). Common disputes: the council finds intentional homelessness because the applicant surrendered a tenancy — but fails to consider whether the accommodation was reasonable to continue to occupy (for example, overcrowded, in poor repair, unsafe, or requiring domestic violence to continue); or the council applies the intentional homelessness finding to the wrong person (the intentional act must be that of the applicant, not a third party). A solicitor challenges intentional homelessness findings by s.202 review — identifying the specific legal errors in the council's analysis of whether the accommodation was "reasonable to continue to occupy" and whether the act was truly deliberate.

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Homelessness prevention & relief duties — Homelessness Reduction Act 2017 — the Homelessness Reduction Act 2017 introduced prevention and relief duties before the full main housing duty arises. Where an applicant is threatened with homelessness within 56 days (or 91 days under some policies), the council must take reasonable steps to prevent homelessness (the "prevention duty"). Where the applicant is already homeless, the council must take reasonable steps to relieve homelessness for 56 days (the "relief duty"). The prevention and relief duties extend beyond the priority need categories to all eligible applicants — including single adults. Where a council fails to take the reasonable steps required by the prevention or relief duty, that failure is challengeable by s.202 review or JR. A solicitor advises on the prevention and relief duties and challenges council failures to discharge them.

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Housing allocation — HA 1996 Part VI & allocation scheme — local authorities must allocate social housing in accordance with a published allocation scheme (HA 1996 s.166A). The allocation scheme must give "reasonable preference" to certain groups — including homeless people owed the main housing duty, people in overcrowded or unsatisfactory housing, people who need to move for medical or welfare reasons, and people who need to move to a particular locality. Disputes arise where: the council refuses to add an applicant to the housing register; awards insufficient priority or "band" to reflect the applicant's circumstances; fails to consider medical evidence of need; or applies the allocation scheme inconsistently. A solicitor challenges unlawful allocation scheme decisions — by formal complaint, LGO, and JR where the allocation scheme has been misapplied or the decision is legally flawed.

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Housing transfer applications & mutual exchange — secure and assured tenants of social housing have the right to apply for a transfer to different accommodation — and, subject to the landlord's consent, to carry out a mutual exchange with another social housing tenant (HA 1985 s.92; Localism Act 2011). Disputes arise where: the council or housing association unreasonably refuses a transfer application; applies the allocation scheme incorrectly to a transfer request; or withholds consent to a mutual exchange without lawful grounds. A solicitor challenges unlawful transfer refusals and unlawful withholding of consent to mutual exchange — through the housing association's complaint procedure, LGO, and — where the refusal is on discriminatory grounds — through the County Court under the Equality Act 2010.

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Interim accommodation & s.188 duty — where a local authority has reason to believe that an applicant may be homeless, eligible for assistance, and in priority need, it must provide interim accommodation while its enquiries are carried out (HA 1996 s.188). The s.188 duty arises on a low threshold — the council does not need to be satisfied that the applicant meets the criteria; it need only have "reason to believe" that they may. Where a council refuses to provide interim accommodation (or terminates interim accommodation before the enquiries are concluded), that refusal is challengeable by urgent judicial review — and the Administrative Court can grant an injunction requiring the council to provide interim accommodation on the same day. A solicitor advises on the s.188 duty and applies for urgent interim relief where the council has wrongly refused or withdrawn interim accommodation.

Frequently Asked Questions

The council has refused my homeless application — what can I do?

If the council has refused your homeless application (or made a negative decision on priority need, intentional homelessness, eligibility, or local connection), you have the right to request a s.202 review within 21 days of receiving the decision letter. The s.202 review is carried out by a senior officer — who reviews the original decision afresh. If the s.202 review is also negative, you can appeal to the County Court on a point of law under s.204 — again within 21 days of the review decision. Common legal errors in homelessness decisions: failing to apply the correct vulnerability test for priority need (Hotak [2015]); failing to consider medical evidence; misapplying the "reasonable to continue to occupy" test in intentional homelessness; and failing to carry out adequate enquiries. A solicitor reviews the decision letter, identifies the legal errors, and prepares the s.202 review submissions — and if necessary the s.204 County Court appeal.

The council says I made myself intentionally homeless — is this right?

Intentional homelessness is one of the most commonly misapplied concepts in housing law. A person is intentionally homeless only where they deliberately did or failed to do something in consequence of which they lost accommodation that was reasonable to continue to occupy (HA 1996 s.191). The council must prove both elements: (1) the act or omission was deliberate; and (2) the accommodation was reasonable to continue to occupy. Where the applicant left due to domestic abuse, the accommodation was unsafe, overcrowded beyond tolerability, in serious disrepair, or unaffordable (following a genuine benefit change), it was not "reasonable to continue to occupy" — and intentional homelessness cannot be found. Councils frequently overlook these factors. A solicitor challenges intentional homelessness findings by identifying whether the accommodation was truly reasonable to continue to occupy and whether the applicant's act was genuinely deliberate.

I am in a high band on the housing register but never get offered a property — what can I do?

A high band on the housing register does not guarantee offers if the bidding process (Choice Based Letting — CBL) is not actively managed. Common issues: the applicant's band is correct but properties in the required area/size rarely become available; the applicant is making bids but losing out to applicants with similar or higher band but longer waiting times; or there is an error in the applicant's record (wrong band, wrong bedroom need assessment, wrong medical priority). A solicitor reviews the housing register record for errors in the band, bedroom need, and medical priority assessment — and challenges errors through the council's review process. Where the council's allocation scheme is systemically disadvantaging the applicant (for example, by failing to apply the "reasonable preference" groups correctly), a solicitor challenges the scheme by LGO complaint and JR.

The council has placed me in temporary accommodation that is unsuitable — can I challenge this?

Yes — temporary accommodation must be "suitable" for the applicant and their household (HA 1996 s.206 and the Suitability of Accommodation Order 2012 and 2015). Suitability is assessed by reference to: overcrowding (the accommodation must not be statutorily overcrowded); location (the council must consider the impact on employment, education, and support networks — and under the 2012 Order must consider proximity to these for families); and the physical condition of the property (the property must be free from category 1 hazards under the Housing Health and Safety Rating System). Where temporary accommodation is unsuitable, the applicant can request a s.202 review of the suitability decision — and, where the review finds the accommodation suitable, appeal under s.204 to the County Court. A solicitor advises on suitability grounds and prepares the s.202 review.

The council is ending my temporary accommodation — what are my rights?

Before the council can end temporary accommodation provided under the main housing duty (HA 1996 s.193), it must have grounds to discharge the duty — typically: the applicant has refused a final offer of suitable accommodation; the applicant has accepted a private rented sector offer; the applicant has been found intentionally homeless from temporary accommodation; or the applicant has ceased to be eligible. The council cannot simply end temporary accommodation because it has found the applicant accommodation elsewhere — the offer must be a "final offer" and must be "suitable" for the applicant. Where the council ends temporary accommodation without proper grounds, or the "final offer" property is not suitable, the applicant can request a s.202 review of the decision. A solicitor challenges unlawful ending of temporary accommodation and the suitability of any final offer.

Homelessness & Council Housing Solicitors — Duty to House, s.202 Reviews, Priority Need & Housing Allocation

Homelessness & Council Housing — Key Disputes

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