Local authorities have duties under the trafficking legal framework to provide appropriate and safe accommodation to victims. Where the victim has an immigration status which makes them eligible for homelessness assistance, these duties are usually discharged via the mainstream homelessness duties under Part 7 of the Housing Act 1996 (HA 1996). Where the victim does not have an immigration status which makes them eligible for homelessness assistance, these duties may be discharged via the Care Act 2014, the Localism Act 2011, or the Children Act 1989.
As will be seen below, it is sometimes necessary for individuals to instruct a Legal Aid solicitor to assist them to enforce their rights to appropriate and safe/secure housing in the face of failures to provide it. ATLEU offers publicly-funded legal advice and representation in housing and public law cases. Our referrals email is email@example.com and our online referrals system that links to legal aid advisors around the country is referrals.athub.org.uk. There is also a list of Legal Aid solicitors on the Ministry of Justice website.
The legal framework outlined below applies to England.
Part 7 HA 1996 Homelessness applications
The law relating to Part 7 HA 1996 homelessness applications is extensive and complex. This section does not attempt to offer a comprehensive overview of the legal framework. Instead, it aims to provide a brief overview of the Part 7 duties, while focusing in greater detail on the most frequently encountered issues experienced by victims. For a detailed explanation of local authorities’ duties under Part 7, see the Shelter website.
Part 7 HA 1996, as amended by subsequent legislation, lays out:
- What duties are owed by local authorities to homelessness applicants. These duties are to:
- Provide a free advice service;
- Provide a personalised housing plan;
- Make inquiries;
- Take reasonable steps to prevent homelessness (the prevention duty);
- Provide emergency ‘interim’ accommodation;
- Take reasonable steps to secure accommodation (the prevention or relief duty); to secure ongoing accommodation (the main duty).
- How local authorities should determine whether they owe a particular duty to a homeless applicant. The four tests of homeless are whether the applicant is homeless or threatened with homelessness, eligible for housing assistance, in priority need, and intentionally homeless. The local authority may also consider whether the applicant has a local connection to the area, either at the relief stage or after establishing that the applicant is owed the main housing duty. In such circumstances that an applicant does not have a local connection to the local authority, they may be referred to the local authority which the applicant does have a local connection to. A local authority cannot make a referral if somebody has a ‘stronger’ connection to another area, they can only make a referral if the applicant has no connection to the area.
- How applicants should be notified of a decision. Applicants must be notified of decisions in writing, they must be informed of the reasons when a local authority refuses to accept a duty, and they must be informed of their right to a review of a decision, and the time limits for requesting a review.
- How decisions can be challenged by the applicant. Decisions can be challenged by requesting an internal review, by a statutory appeal in the county court, and by judicial review in the Administrative Court of the High Court, if a statutory appeal is not an appropriate alternative remedy.
The Ministry for Housing, Communities and Local Government (MHCLG) has also issued the statutory Homelessness Code of Guidance for Local Authorities (the guidance).
Chapter 25 contains guidance on providing homelessness assistance to victims of modern slavery. The guidance will be discussed throughout this section. It acknowledges that:
‘if a victim of modern slavery is threatened with homelessness or is homeless this significantly increases their risk to being re-trafficked or exposed to further exploitation’ (25.17 of the guidance).
All accommodation secured under Part 7 HA 1996 must be ‘suitable’ in relation to the particular needs of the applicant. In the case of victims, ‘suitable’ should be interpreted in the light of the trafficking legal framework which imposes a duty to provide appropriate and safe accommodation in order to assist victims in their recovery.
Making an application, interview, and the duty to make inquiries
Legal aid (in the form of Legal Help) is available at all stages of a homelessness application, as it is available for those who are homeless or threatened with homelessness. Ideally a housing solicitor should be instructed as early as possible in the process. This is especially important in the case of victims who may, for reasons connected to their ordeal and possible language difficulties, find it especially difficult to advocate on their own behalf and to successfully communicate their vulnerabilities to overworked housing officers. Homelessness interviews are often experienced by victims as stressful and even adversarial encounters.
A homelessness application can be made to any local authority, at any time. Local authorities must have a way of allowing applications to be made 24 hours a day to account for scenarios where applicant’s homelessness happens outside office hours.
Applications do not need to be in writing, or in any particular form. However, it is advisable, in pre and post Covid times, for applicants to physically present at the housing department of the local authority. Although applicants do not need to be in writing, it is a good idea for applicants to bring a letter explaining why the local authority owes a duty to provide accommodation, plus supporting evidence. It is important to establish a ‘paper trail’ as local authorities may deny ever receiving an oral homeless application. ATLEU has created a precedent letter for the purposes of obtaining emergency accommodation, which should be used.
Following an application, an initial interview with the applicant should be conducted. These interviews should be of a sufficient length to enable the housing officer to assess the applicant’s particular circumstances. Interviews should be conducted with care and with due regard to the possibility that the applicant may have one or more protected characteristics, such as a disability, which would require reasonable adjustments.
A possible reasonable adjustment for victims who have a diagnosis of PTSD is that the interview takes place over several short sessions rather than one prolonged session. Or the protected characteristic of race, where the victim may require an interpreter at the local authority’s expense, so that the inquiries are conducted fairly and that the victim is not indirectly discriminated against because the interview is in a language which they do not speak very well or at all. Victims should be given the option of being interviewed by a housing officer of the same sex (25.15 of the guidance), and local authorities should refer applicants into the NRM if they suspect the applicant is a victim and the applicant is not already in the NRM (25.16 of the guidance).
It is a good idea for a victim to be accompanied to the interview by a support worker, or a trusted friend. These interviews can be stressful, and it will often be helpful for somebody to assist them to explain their situation and their housing needs to the housing officer. It is also useful if the support worker or trusted friend takes contemporaneous notes of what is said at the meeting.
In the event of a refusal to hold an initial interview, or an interview which is conducted without sufficient care, or without sufficient regard to the applicant’s protected characteristics, or if the interview is too short, the assistance of a legal aid housing solicitor should be sought.
If the local authority has reason to believe the applicant is homeless or threatened with homelessness (see below for an overview of this test), it must make inquiries about whether the applicant is eligible (see below), and what duty may be owed to the applicant.
The burden is on the local authority to make these inquiries. The inquiries must take into account material presented by the applicant, such as medical evidence of priority need (see below), or a supporting letter from a support worker, and local authorities must draw reasonable conclusions from the evidence. It is therefore helpful to submit as much evidence as possible supporting why the applicant satisfies the homelessness tests (which are outlined below).
Local authorities are additionally required by the public sector equality duty under section 149 of the Equality Act 2010 to have regard to whether the applicant has a disability, or another protected characteristic, and if so, to make enhanced inquiries. In the case of victims, local authorities should take into account advice from specialist agencies that provide services to the applicant, including from their MSVCC support provider (25.17 of the guidance).
A failure to carry out an adequate inquiry into the applicant’s situation can be challenged via judicial review. The assistance of a legal aid housing solicitor should be sought.
If the local authority concludes the applicant is not eligible for assistance, or is not homeless or threatened with homelessness, written notification must be given to the applicant. In the event of a negative decision, the assistance of a legal aid housing solicitor should be sought.
If the local authority concludes that the applicant is eligible and homeless or threatened with homelessness, it must assess the needs of the applicant and produce a ‘personalised housing plan’ (PHP) on the basis of the needs assessment. Local authorities have some flexibility in how they carry out these assessments, but in general local authorities should inquire into the circumstances of the applicant’s homelessness, and their needs going forward, including the kind of accommodation that they require.
Survivors are likely to have particular needs for accommodation which relate to their trafficking experiences. They are likely to require accommodation of a particular type (for example, they may need single sex accommodation, or hostel accommodation may be triggering for their PTSD). They are likely to have particular location requirements (to remain close to their support network, or to escape the location of their exploitation). In the case of victims these are likely to be requirements rather than mere wishes or preferences and should be communicated to the housing officer as such. Supporting evidence will be helpful. The housing officer must include these requirements in the PHP.
It is advantageous to ‘frontload’ the evidence, that is, to submit as much evidence of the applicant’s accommodation needs early in the process.
Following the assessment, the PHP must contain steps that the local authority will take, and steps that the local authority has agreed with the applicant that the applicant will take, to prevent or relieve the applicant’s homelessness. Steps may be recorded as steps that the applicant is required to take. If the applicant feels a step they are required to take is not reasonable, they should object, as a refusal to take the step may be seen by the local authority as a ‘deliberate and unreasonable refusal to cooperate’ and penalised. A deliberate and unreasonable refusal to cooperate can result in the ending of the prevention or relief duties.
PHPs must be in writing and a copy must be given to the applicant. The PHP should be specific to the applicant and the assessment and plan should not be a template heavy ‘tick-box’ exercise (11.16 of the guidance). PHPs must be kept under regular review. The applicant can request a statutory review of any of the reasonable steps which the local authority are to take (11.36 of the guidance).
Homeless or threatened with homelessness
Homelessness can be broadly defined as having no accommodation available in the UK or abroad which is reasonable to occupy or to continue to occupy.
This means that an applicant who does have accommodation available to them is legally homeless if that accommodation is not reasonable to occupy or to continue to occupy. For example, a victim may have accommodation available to them but it is in the area of their exploitation, making it unreasonable to continue to occupy. Or they may be occupying accommodation, but it is overcrowded, or unaffordable, or in disrepair.
If accommodation occupied by a victim is having a negative effect on their recovery, it is possible that they will meet the legal definition of homelessness, and a homelessness application should be made (provided the applicant is eligible for assistance—see below). As much evidence as possible should be obtained of the negative effect of the accommodation. When assessing whether accommodation is reasonable to occupy for a victim, the impact of the accommodation on their recovery should be taken into account by the local authority.
An applicant is ‘threatened with homelessness’ if they will likely become homeless within 56 days, or if the applicant has been served with a valid section 21 notice which is due to expire within 56 days.
A frequently encountered issue by victims is that, following a grant of asylum, they are given 28 days’ notice by the Home Office to leave their asylum accommodation. In these and similar cases where notice has been given (such as by a friend), it may be argued that the applicant is homeless before the expiry of the notice period (and not just threatened with homelessness) as the accommodation ‘is not reasonable to continue to occupy’. This may make a difference in relation to whether a duty to provide interim accommodation is triggered (see below). However, in practice, local authorities are unlikely to provide interim accommodation before the expiry of the asylum support accommodation notice period.
Eligibility for homelessness assistance
In what follows, the most common situations most relevant to victims will be outlined.
The basic rule is that persons subject to immigration control are not eligible for homelessness assistance, and that persons not subject to immigration control (such as British citizens and EEA nationals with a right to reside or settled status) are eligible for assistance. However, there are numerous exceptions. For a more detailed overview of the subject of eligibility, see the Shelter website.
EEA nationals who have been granted settled status are treated as eligible for assistance.
EEA nationals without settled status (including those with pre-settled status) will only be eligible for assistance if they have a right to reside. This means they must be:
- A worker, or someone who has retained worker status. It is important to note that exploitative work can still confer a right to reside. What matters is whether the work was ‘genuine and effective’. As much evidence as possible of the work should be submitted to the local authority in these cases, including any positive NRM decisions. For more information on worker and retained worker status, see the Shelter website.
- A family member an individual in the above categories
- An individual who has a right of permanent residence in the UK, where that right arose following retirement, or death of a worker or self-employed person
Non-EEA nationals subject to immigration control
Individuals who are ‘subject to immigration control’ are not eligible for homelessness assistance unless they fall into one of the exceptions.
Individuals are subject to immigration control if they require leave to enter or remain in the UK. For example, an individual is subject to immigration control if they have been granted leave to remain, if they have a visa, or if they are an EEA national who does not have a right to reside.
The exceptions to the rule that individuals who are subject to immigration control are not eligible for assistance which are the most relevant to victims are below (please see the Shelter website for a complete list):
- Individuals with a destitution domestic violence concession
- Individuals with indefinite leave to remain
- Individuals who have been granted humanitarian protection
- Individuals who have been granted limited leave to enter or remain under Article 8 ECHR (provided they are not subject to a ‘no recourse to public funds’ condition)
- Family members of EEA nationals with a right to reside
Habitual Residence Test
Certain classes of people will have to pass the Habitual Residence Test to be eligible for assistance. These classes of people are:
- British and Irish citizens recently arrived in the UK
- EEA nationals with a permanent right to reside (although EEA nationals granted settled status under the EU Settlement Scheme satisfy the test automatically)
- EEA nationals with pre-settled status.
If the EEA national has a right to reside, they will be exempt from the habitual residence test (see above).
Determining habitual residence depends on the specific facts of each case, but the individual must have lived in the Common Travel Area ‘for an appreciable period’. For further information, see the Shelter website
Eligible and ineligible members in the same household
In some cases, there will be households with a mix of ineligible and eligible members. In these cases, it is usually advisable for the eligible member of the household to apply for homelessness assistance, if they can.
However, in cases where an individual is eligible for assistance and is subject to immigration control (such as a refugee) applies for assistance, any dependents who are ineligible for assistance will be disregarded in determining whether the applicant has a priority need or is homeless.
Emergency ‘interim’ accommodation
The local authority has a duty to provide interim accommodation while it makes its inquiries if it has reason to believe the applicant may be homeless, eligible for assistance and in priority need. This is a relatively low threshold.
Interim accommodation, as with all accommodation secured under Part 7, must be suitable in relation to the particular needs of the applicant. This includes the suitability of the location of the accommodation. The length of time the accommodation will be occupied for is a relevant consideration in determining its suitability. Bed and breakfast accommodation should not be used for interim accommodation where possible, except in an emergency.
Where there is no alternative to bed and breakfast accommodation, it is not suitable for pregnant women and families for more than six weeks. The rule does not apply if the bed and breakfast accommodation is owned or managed by the local authority. The local authority is also permitted to set aside the six week rule if there is no alternative accommodation available to them to offer the applicant.
Legal advice should always be sought before refusing an offer of interim accommodation.
The interim accommodation duty can end in a number of ways. Please see the Shelter factsheet which sets this out.
There is no right to request a review of a refusal to provide interim accommodation. The only remedy is judicial review, and a housing solicitor should be instructed as soon as possible. See ‘Challenging decisions’, below.
Case study: Refusal of emergency accommodation
Lucy is a vulnerable British citizen with a positive conclusive grounds decision. She is fifty-seven years old, and suffers from cognitive problems including severe memory loss. She is illiterate, and suffers from mobility problems.
Last year she was evicted from her housing association property due to rent arrears, which were caused by a local criminal group who regularly forced her to give them her Universal Credit. She started sleeping in a local park, where the gang that had exploited her in the past found her and started threatening her again.
She approached a local authority in the north west of England, and asked for accommodation. They accepted a homelessness application from her and conducted an interview. Lucy explained to the housing officer that ‘she found it hard to cope with things’, and that ‘she forgets things’. She said that she had been ‘taken advantage of by a gang’ and that she was scared of them. She did not submit any medical evidence of her vulnerability.
The local authority then issued a letter refusing emergency accommodation. This was on the basis that the local authority ‘do not have reason to believe she is in priority need’ and that she ‘appeared well-kept in the interview’.
Lucy then instructed a housing solicitor, who sent a pre-action letter explaining that 1. the refusal to provide accommodation was unlawful in the light of the very low threshold of the ‘may be in priority need’ test, and 2. the local authority had applied the wrong legal test by stating that they ‘do not have reasonable to believe she is in priority need’. Enclosed with the letter was Lucy’s positive conclusive grounds decision letter and a letter from an NHS consultant explaining her vulnerabilities. The letter requested that emergency accommodation be immediately provided out of the area, given the area was unsafe for Lucy.
In response, the local authority secured emergency accommodation for Lucy in a neighbouring local authority.
The prevention and relief duties
If the local authority concludes that the applicant is eligible and threatened with homelessness, it must take ‘reasonable steps to secure that accommodation does not cease to be available for his occupation’ (section 195 HA 1996). These steps will be the steps included in the PHP (see above). The ‘reasonable steps’ are not prescriptive and may include a payment of Discretionary Housing Payment (DHP) to prevent homelessness.
If the local authority concludes that the applicant is eligible and homeless, it must take reasonable steps to help the applicant secure that accommodation becomes available for at least six months. These steps should be informed by the PHP, which should reflect the needs assessment. All accommodation provided under any of the homelessness duties must always be suitable in relation to the individual needs of the applicant.
Referrals can be made to another local authority at the relief duty stage (see ‘Local Connection’, below).
In cases where the local authority has reason to believe the applicant may be in priority need, the relief duty will overlap with the duty to provide interim accommodation (see below).
In cases where the local authority has made a decision that the applicant is in priority need and is not intentionally homeless, the relief duty will overlap with the main housing duty (see below). In this case, the relief duty will end automatically after 56 days following the acceptance of the relief duty.
If the local authority has not made a decision about priority need or intentional homelessness, or if the local authority has made a decision that the applicant is not in priority need or is intentionally homeless, the relief duty can be ended 56 days after the acceptance of the relief duty by serving a notice to the applicant, but only if the relief duty has been complied with (that is, taking reasonable steps to help the applicant secure that accommodation becomes available for at least six months). The relief duty can also be ended before 56 days following the acceptance of the duty by serving a notice, but only if the applicant has accommodation available for at least six months.
The relief duty will end automatically if the applicant rejects a suitable final offer of accommodation (see below), and the applicant has been informed of the consequences of rejection and their right to a review of the suitability of the accommodation. For this reason, legal advice should be sought before an applicant refuses an offer of accommodation.
The relief duty can also be ended by serving a notice if the applicant refuses an offer of suitable accommodation under the relief duty. Again, legal advice should be sought before an applicant refuses an offer of accommodation.
Where the relief duty is ended by serving a notice, the notice must give reasons for why the duty was ended and it must state that the applicant has a right to request a review of the decision within 21 days (see ‘Challenging decisions’, below).
Case study: Challenging suitability of accommodation
Adilah is a twenty-four-year-old Moroccan woman with a positive conclusive grounds decision and refugee status.
She has lived in section 95 accommodation in west London for many years, and had settled into the community. She was exploited outside of London, but she doesn’t know where. Consequently, being outside of London severely aggravates her PTSD.
Following the granting of her refugee status, she applied as homeless to a west London local authority. The same day, the local authority accepted the relief duty, and discharged it by offering a private-rented property in Northampton. She moved there the same day and immediately became terrified. She felt unable to leave the house.
Adilah instructed a housing solicitor who wrote to the local authority within 21 days requesting a review of the suitability of the accommodation. The local authority was advised that further representations and evidence would be forthcoming shortly. The solicitor commissioned a medico-legal report which found that being in Northampton was severely aggravating Adilah’s PTSD and harming her recovery. This was submitted to the local authority with detailed representations.
The local authority then made a decision that the accommodation was suitable given that ‘there was no evidence that Adilah was at risk from her traffickers in Northampton’. An appeal was then lodged in the County Court, on the grounds that the local authority had failed to take into account a relevant consideration, namely, Adilah’s subjective experience of being in Northampton, and the effect of being there on her mental state.
The case was then settled on the basis that the local authority agreed to withdraw their decision and to make a fresh decision on suitability.
Some people will always be in priority need whereas others will only be in priority need if the local authority finds that they are vulnerable. The following groups are always in priority need:
- Pregnant women or people with whom a pregnant woman resides or might reasonably be expected to reside
- People with whom dependent children reside or might reasonably be expected to reside
- 16 and 17 year olds (if they are not the responsibility of social services)
- 18 to 20 year olds (other than relevant students) who at any time after reaching the age of sixteen, but while still under eighteen were, but are no longer, looked after, accommodated or fostered
- People who lost their accommodation as a result of an emergency (a flood, fire or other disaster).
An individual will also be in priority need if the local authority decides that they are ‘vulnerable’ as a result of:
- Old age, mental illness or handicap or physical disability or other special reason
- Having been looked after, accommodated or fostered, and who reached the age of twenty-one and is not a relevant student
- Having been a member of Her Majesty’s regular naval, military or air forces
- Having served a custodial sentence, been committed for contempt of court or any other kindred offence, or been remanded in custody
- Ceasing to occupy accommodation by reason of violence from another person or threats of violence from another person which are likely to be carried out.
The test for vulnerability is whether the applicant is significantly more vulnerable than an ordinary person would be if they became homeless. It can safely be assumed that an ‘ordinary person’ has not been trafficked. As such, many vulnerable victims will satisfy this test. Many victims will have significant interlocking vulnerabilities including mental illness, being at risk of re-trafficking (which would come under ‘other special reason’), and, if they have recently escaped exploitation, having fled violence or threats of violence which are likely to be carried out. As much evidence as possible demonstrating the victim’s vulnerabilities should be obtained and submitted to the local authority, including written evidence from their NRM support worker, medical evidence, witness statements, supporting evidence from their asylum claim if relevant, and NRM decisions.
A decision that an applicant is not in priority need can be challenged by requesting an internal review within 21 days of being notified of the decision (see ‘Challenging decisions’, below).
An applicant has a local connection to the area of a local authority if:
- The applicant is, or was in the past, normally resident there, and that residence is or was of their own choice (it is unclear how this applies to somebody held in exploitation).
- The applicant is employed there.
- The applicant has family association in the area.
- There are other special circumstances which give the applicant a connection to the area. Local authorities are advised to use their discretion in determining a local connection based on special circumstances.
- The applicant was at any time provided with section 95 asylum support accommodation in the area (unless the applicant was subsequently provided with section 95 asylum support accommodation in the area of a different local authority).
- The applicant is a care leaver and the local authority owes them duties as a former relevant child, or the care leaver was normally resident in the area for a continuous period of two years, at least some of which was before their 16th birthday. The local connection will last until the care leaver turns 21 (or, in the case of former relevant children, until the termination of a course of education).
A local authority cannot refuse to accept a homelessness application from an individual on the basis that the individual has no local connection. However, a local authority can refer the application to another local authority at the relief duty stage or at the main duty stage if the applicant has no local connection to the local authority’s area, the applicant has a local connection to the other local authority’s area, and the applicant will not be at risk of violence in the other area. There are other less commonly encountered reasons for referral, which are laid out on the Shelter website.
The main homelessness duty will only be owed to applicants who are unintentionally homeless. The policy reason, when intentionality was introduced in the 1970s, was to stop people from ‘jumping the queue’ to Council accommodation by making themselves homeless. The times have changed in the sense that the incentive to do this is not really there anymore, as the main housing duty does not mean that the applicant is likely to be allocated a social housing property any time soon. However, a local authority’s duty to investigate intentionality still applies.
Please note that the approach to intentionality differs between the UK nations: in Scotland, the local authority has discretion not to investigate intentional homelessness, while in Wales losing one’s home as a result of being sent to prison is disregarded when determining intentional homelessness.
An applicant is homeless intentionally if they, being aware of all the relevant facts, deliberately do or fail to do anything, which results in them ceasing to occupy accommodation which was available for their occupation, and which it would have been reasonable for them to continue to occupy.
An applicant is also homeless intentionally if they enter into an arrangement under which they are required to cease to occupy accommodation which it would have been reasonable for them to continue to occupy, and the purpose of the arrangement is to enable them to become entitled to assistance under Part 7, and there is no other good reason why they are homeless.
An applicant cannot be intentionally homeless if their last settled accommodation was not reasonable for them to continue to occupy. This may be because of serious disrepair in the property, the property was unaffordable, there was nuisance or annoyance caused by neighbours or their traffickers knew where they were.
An applicant also cannot be intentionally homeless, if at the relevant time, they were incapable of managing their affairs because of disability, age, or mental illness. Further, intentionality cannot apply if the act or omission was because of limited mental capacity, aberration or temporary aberration caused by mental illness, frailty or assessed substance misuse problem. Additionally, they cannot be held intentionally homeless if they acted under duress or the act was in good faith.
Even if the applicant’s act or omission made them intentionally homeless, if there is no longer a link between the act which made the person intentionally homeless and their current homelessness, then they cannot be found intentionally homeless. This may be if, for example, a then able-bodied woman was evicted from a first floor flat with no lift for rent arrears in 2014, but by 2020 was a wheelchair-user and the property would no longer be reasonable for her to occupy. The link may also be broken if the applicant has subsequently acquired accommodation which can be considered as ‘settled accommodation’.
Local authorities will continue to have duties to applicants who are eligible, in priority need and intentionally homeless. These duties are:
- To secure that accommodation is available for the applicant’s occupation for such period as the local authority considers will give the applicant a reasonable opportunity of securing accommodation for occupation
- Provide the applicant with, or secure that he is provided with, advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.
Following a finding of intentional homelessness, legal advice should be sought from a housing solicitor. A request for an internal review can be made within 21 days of being notified of the decision (see ‘Challenging decisions’, below).
Case study: Intentional homelessness
Mary is a Boswanan refugee with a positive conclusive grounds decision. She was living for a number of years in asylum support accommodation in Sheffield. She had a strong support network in Sheffield and in Doncaster. Following her grant of refugee status, her asylum support accommodation was terminated. She went to the Sheffield Council to request accommodation. Sheffield offered her private-rented accommodation in Chesterfield in discharge of the main housing duty, which she accepted.
It was immediately very difficult for Mary to be in Chesterfield, away from her support network in Sheffield. She began to have a mental health crisis as a result of the isolation. Fearing what would happen if she stayed, Mary fled the accommodation with her children, handing the keys back to the landlord, who accepted that she had surrendered the tenancy. The flat was re-let shortly after.
Mary went to stay with a friend temporarily in Doncaster. After a few days, she applied to Doncaster Council as homeless. Doncaster secured interim accommodation for her, which she accepted.
Two weeks later, Doncaster sent a letter to Mary informing her that they had found her to be intentionally homeless as she had intentionally left the accommodation in Chesterfield. At this point, Mary instructed a housing solicitor. The housing solicitor commissioned a medico-legal report from a psychologist which found that the isolation had likely precipitated a mental health crisis and that the steps Mary took to surrender the tenancy were, for Mary, necessary to preserve her mental health.
Detailed representations explaining why the Chesterfield accommodation was not reasonable to continue to occupy were submitted along with the medico-legal report. An internal review of the intentional homelessness decision was requested. Following this, the local authority found on review that Mary was not intentionally homeless. Suitable accommodation was then offered in the Sheffield area.
The main housing duty
Where applicants are eligible, in priority and unintentionally homeless, the main housing duty will be owed when the relief duty comes to an end (see above).
The main duty will not arise, however, if the applicant has either turned down an offer of suitable final accommodation made under the relief duty, or been served with a notice of a ‘deliberate and unreasonable refusal to cooperate’ in relation to a step in the PHP. In these cases, legal advice should be sought as soon as possible.
The main duty is usually discharged with an offer of suitable accommodation, or by providing advice and assistance such that suitable accommodation becomes available. The local authority can either provide the accommodation from its own stock or, more commonly in London, via a landlord in the private sector.
The duty will come to an end when the applicant accepts a private rented sector offer, or a final offer under the local authority’s allocation scheme. In the offer letter, the applicant must be informed of the consequences of refusing the offer and their right to request a review of the suitability of the offer.
The duty will also come to an end if the applicant refuses a suitable private rented sector offer or an offer under the allocation scheme. If the applicant refuses an offer of temporary accommodation (the acceptance of which would not end the main duty), the duty can be ended by giving notice. Legal advice should always be sought before refusing an offer.
Again, all offers of accommodation must be suitable in relation to the individual needs of the applicant and those who can reasonably be expected to live with them. In the case of victims, this means appropriate and safe accommodation which assists them in their recovery. It is common for Local authorities in London to offer accommodation outside of London, sometimes very far away. Although an applicant is likely to feel very strongly that an ‘out-of-Borough placement’ is not suitable, legal advice should always be sought before refusing an offer.
The suitability of accommodation offered in discharge of the main duty can be challenged by requesting an internal review within 21 days (see ‘Challenging decisions’, below).
How a decision is challenged depends on the type of decision it is. Again, we advise that legal advice is sought if a challenge is contemplated, due to the complexity of both the trafficking legal framework and the law relating to homelessness.
Most decisions can be challenged by way of requesting an internal review within 21 days of the notification of the decision. These include decisions relating to suitability of accommodation (except interim accommodation), eligibility, homelessness, priority need, intentional homelessness or local connection.
It is important to remember that all the homeless applicant or support-worker has to do at this stage is request an internal review within 21 days of the notification of the decision which they are challenging. They can give brief reasons why they are challenging the decision, request their housing file and state that they will make final representations on receipt of the housing file. Sometimes, homeless applicants and their support-workers think that they have to make full representations within 21 days and they do not, it is just to request the review within this timeframe.
Any new evidence supporting the applicant’s case can, and should, be submitted for the purposes of the internal review. If necessary, a short request, simply stating that the applicant requests a review of the decision, may be submitted by the deadline, stating that detailed representations and evidence will follow.
If the applicant is dissatisfied with the outcome of the internal review, an appeal against the review decision may be brought to the County Court on a point of law.
The decisions which cannot be challenged by way of requesting an internal review include refusals to accept an application, the suitability of interim accommodation, decisions not to provide accommodation pending review, assessments of need, and refusals to conduct an out-of-time review. These decisions can only be challenged by way of judicial review in the Administrative Court of the High Court.
In urgent situations, even where an internal review is available, the internal review may not be an appropriate remedy. In these cases, the only appropriate remedy may be an urgent application for judicial review with an application for interim relief.
Local authority support for non-eligible persons
There are three statutory ‘channels’ through which local authorities can perform their duties to provide appropriate and safe accommodation to victims who are not eligible for Part 7 homelessness assistance. The relevant statutes are the Care Act 2014, the Localism Act 2011, and the Children Act 1989. Additionally, there is a duty on local authorities, in collaboration with the NHS Clinical Commissioning Group, to provide ‘after care’ to individuals sectioned under the Mental Health Act 1984 (section 117 Mental Health Act 1984).
Importantly, Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (Schedule 3) prohibits local authorities from providing support and assistance (including accommodation) under these provisions, with the exception of aftercare under the Mental Health Act 1984, to the following groups:
- Individuals with refugee status granted by an EEA state (other than the UK)
- Citizens of EEA states (other than the UK)
- Failed asylum seekers who have failed to comply with removal directions
- Individuals in the UK unlawfully (this does not include asylum seekers, but it does include failed asylum seekers even if they have not been issued with removal directions)
- Failed asylum seekers with dependent children if they are not taking reasonable steps to leave the UK voluntarily or to place themselves in a position to do so
Note that this does not include individuals who have leave to enter or remain in the UK with a ‘no recourse to public funds’ condition.
However, where the local authority has assessed that it is necessary to prevent a breach of human rights, support and assistance must be provided to individuals in the groups excluded by Schedule 3. A refusal to provide support and assistance where it is necessary to prevent destitution or harm in cases where there is a barrier to the individual’s removal from the UK would constitute a breach of human rights.
Moreover, local authorities have safeguarding duties under section 42 of the Care Act 2014 to make enquiries if it believes an adult is experiencing, or is at risk of, abuse or neglect (which includes modern slavery). An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect, and a safeguarding plan should be drawn up. Schedule 3 has no effect on a local authority’s safeguarding duties.
There is often uncertainty about whether the state’s duties to provide accommodation to victims who are ineligible for homelessness assistance falls on the Home Office (via MSVCC accommodation or other Home Office accommodation) or on the local authority. This is because the state as a whole (which includes local authorities and central government) has a duty to provide appropriate and safe accommodation, and the trafficking legal framework does not detail the specific channel through which it must be provided.
In respect of asylum support accommodation specifically, the Home Office has stated that a local authority is responsible for providing accommodation to an asylum seeker with care and support needs in circumstances where residential care is required.
Whether it is preferable to request accommodation from the Home Office or from a local authority, or both, will turn on the specific facts of each case, and on the particular needs of individual victims.
For example, some victims may have very complex needs which may be better provided for via the social services department of a local authority rather than in a trafficking safe house. A victim may already be settled in appropriate accommodation provided by social services but they may have received an eviction notice, and the victim’s mental health is such that moving to alternative accommodation would likely disrupt their recovery. In such a case, it would be preferable to request (ideally with supporting evidence) that the local authority allow the victim to remain in the accommodation, and/or request the Home Office and the local authority to come to an arrangement to allow the victim to stay where they are.
In cases where the victim is facing imminent street homelessness, it is usually advisable to request accommodation from both the Home Office and the local authority. It is possible to challenge two parties in a single judicial review in the event both parties refuse to provide accommodation. It is always advisable to seek legal advice from a public law solicitor in these cases.
In most cases, it is more difficult to successfully request local authority accommodation where there is a clear entitlement to MSVCC accommodation.
The Care Act 2014
An individual who is not eligible for Part 7 homelessness assistance may be eligible for accommodation (and financial support) under the Care Act 2014 (CA 2014), if the individual has been assessed as having eligible care and support needs. However, it is important to note that the purpose of Care Act provision is to provide care and support, not accommodation. Accommodation can be provided, as the venue for the provision of care and support needs is often a residential care home or supported housing complex. The Administrative Court has also held that accommodation may be provided to people who have eligible care and support needs if failure to provide the accommodation would render the provision of the care and support to be useless.
To be eligible, their care and support needs cannot arise solely from their destitution, and they must arise from or be related to a physical or mental impairment or illness.
Following a referral to the social services department of a local authority in whose area the individual is ordinarily resident, a needs assessment must be conducted, if it appears to the local authority that the individual may have care and support needs. The threshold for an assessment is relatively low. A letter requesting an assessment with some evidence of the individual’s care needs will likely be sufficient to trigger the duty to conduct a needs assessment. The assessment must be carried out in accordance with the statutory guidance. Local authorities have powers under section 19(3) CA 2014 to provide emergency support pending the completion of the assessment.
A local authority can provide assistance under the CA 2014 if the individual is unable to achieve two or more of the outcomes specified in paragraph 2 of the Care and Support (Eligibility Criteria) Regulations 2015 and as a result there is a significant impact on their well-being. The individual must be unable to achieve the outcomes without assistance (or with assistance if assistance causes significant pain, distress or anxiety, or if assistance is likely to endanger the health and safety of the individual or of others, or with assistance but it takes significantly longer than would normally be expected). The outcomes are:
- Managing and maintaining nutrition;
- Maintaining personal hygiene;
- Managing toilet needs;
- Being appropriately clothed;
- Being able to make use of the adult’s home safely;
- Maintaining a habitable home environment;
- Developing and maintaining family or other personal relationships;
- Accessing and engaging in work, training, education or volunteering;
- Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
- Carrying out any caring responsibilities the adult has for a child.
It is important to bear in mind that victims are disproportionately likely to have mental health conditions which may have a negative impact on the ability to achieve the above outcomes. See the case study below for an example.
If the eligibility criteria are met, the local authority will determine what assistance is necessary to meet the individual’s needs.
In cases where the local authority concludes that the individual is not eligible for assistance due to not meeting the criteria, but the individual remains at risk of harm or exploitation (which is likely to be the case with victims), then the local authority must consider whether it should use its discretionary power to provide support and assistance. In the case of victims specifically, if accommodation under the CA 2014 is necessary to reduce the risk of harm or exploitation, then the local authority has a duty to provide it. If the local authority decides not to use its discretionary powers under the CA 2014 to provide support and assistance, it must consider using its general power of competence under the Localism Act 2011 (see below) to provide support and assistance.
Accommodation provided under the CA 2014 must be appropriate and safe in relation to the particular recovery needs of individual victims.
All challenges relating to the above duties (for example, a challenge to a failure to carry out an assessment, or a failure to take into account relevant information, or a failure to provide accommodation pending the completion of an assessment, or a challenge to the appropriateness of accommodation, or a decision not to provide assistance) are by way of judicial review. The advice of a community care, public law, or housing solicitor should be sought.
Case study: Challenging Home Office accommodation
Kofi is a Ghanaian failed asylum seeker with outstanding further submissions which have not been recognised by the Home Office as amounting to a fresh claim, and a positive reasonable grounds decision. He suffers from severe PTSD. He was detailed for four months a year ago, which was extremely traumatising for him, and as a result is now terrified of any accommodation that is connected to the Home Office, including NRM accommodation.
He was living with a family in South East London, who asked him to leave. His MSVCC support worker referred him to a housing solicitor. On taking instructions, it became clear that, although he was entitled to Section 4 accommodation and to NRM accommodation, Home Office accommodation would not be suitable accommodation due to his overwhelming fear of the Home Office stemming from his detention.
The housing solicitor requested accommodation from a local authority in South London under the CA 2014, on the basis that a failure to provide it would result in a breach of Kofi’s rights under the ECHR, including Article 4 ECHR. Reference was made to the local authority’s obligations under ECAT. It was argued that no Home Office accommodation would be appropriate in relation to his recovery needs. A letter from Kofi’s psychotherapist was submitted which testified to this. It was also submitted that Kofi had care needs, resulting from the severity of his PTSD. Accommodation was requested pending the assessment.
Accommodation was provided pending the assessment. Following the assessment, the local authority concluded that Kofi was not unable to achieve two or more of the relevant outcomes. However, the local authority decided to use their discretionary powers under the CA 2014 to provide accommodation, to prevent a breach of Kofi’s rights under ECAT and the ECHR.
The Localism Act 2011
Local authorities have a general power of competence under section 1 of the Localism Act 2011 (LA 2011).
In cases where local authorities have decided not to use their discretion under the CA 2014 to provide accommodation, they must consider whether to use their powers to do so under the LA 2011 to avoid a breach of the victim’s human rights, including Article 4 ECHR. Furthermore, there may be cases where an individual has not triggered the duty to conduct a CA 2014 assessment due to not presenting with an appearance of a care need, but failing to provide accommodation would nevertheless result in a human rights breach.
Note that these powers are not a way for local authorities to provide assistance to people whom they otherwise would be prohibited from assisting, unless a failure to provide assistance would breach convention rights.
In situations where a victim cannot be returned to their country of origin and refusing support would result in a breach of human rights (and the local authority has not accepted a duty to provide accommodation under the CA 2014), then the local authority may have a duty to provide accommodation under the LA 2011.
Accommodation provided under the LA 2011 must be appropriate and safe in relation to the particular recovery needs of individual victims.
Challenges to failures to exercise discretionary powers under the LA 2011 are by way of judicial review. The advice of a community care, public law, or housing solicitor should be sought.
The Children Act 1989
Local authorities have a duty to safeguard and promote the welfare of children in need present in their area, and to promote the upbringing of such children by their families (where it is consistent with this duty) under section 17(1) of the Children Act 1989 (CA 1989). It is well established that a homeless child is a child in need. This may also be the case if a child is in unsafe and unsuitable accommodation. Section 17 (10 c) of the CA 1989 also details that disabled children will always be ‘children in need’.
Under section 17, local authorities have a power to provide accommodation and support to homeless children in need together with their families. Social services must first assess the needs of the child to determine the level of need of the family.
The statutory guidance details that if the family needs services in the interim, the services should be provided to safeguard and promote the wellbeing of the child in need. Therefore, if a family is ‘street homeless,’ it would be unlawful for the local authority to wait until the full section 17 assessment had been completed, and interim services should be provided.
The power to provide accommodation and support must be exercised according to public law principles and in accordance with human rights. A failure to provide accommodation and support to a homeless, destitute mother who is a victim and her child, where the family cannot be removed to a country of origin, would likely be unlawful.
Local authorities are not prohibited by Schedule 3 from providing section 17 support directly to children. They are prohibited by Schedule 3 from providing section 17 support to adults in the excluded categories above, unless a failure to do so would be a human rights breach. A failure to provide support to a destitute family with a child in need with a barrier to removal would most likely constitute a human rights breach.
Challenges to failures to provide support under section 17 CA 1989 are by way of judicial review. The advice of a community care, public law, or housing solicitor should be sought.
Local authority accommodation powers during an emergency:
During the Covid-19 pandemic, there was initially a direction from central government to local authorities stating that they needed to accommodate every rough sleeper for public health reasons during the emergency. A study published in The Lancet in September 2020 detailed how local authorities enacting this policy saved lives during the early stages of the pandemic. Subsequently, the government sent conflicting messages, which some local authorities interpreted to mean that they did not have to accommodate people subject to immigration control and that they would be accommodated by the Home Office and their contractors.
A recent case in the High Court, (R) Ncube v Brighton and Hove City Council,(2021) EWHC 578 (Admin) decided in March 2021, stated that the local authority had the power under s.138 of Local Government Act 1972 to accommodate people during an emergency. As long as the following four conditions are met:
- There has been an emergency or disaster, or it is imminent, or there are reasonable grounds for apprehending an emergency or disaster;
- The type of disaster is one involving danger to life or property;
- If so, the Council is of the opinion that the emergency or disaster is likely to affect its area or some of its inhabitants;
- If so, the Council may incur such expenditure as they may consider necessary to avert, alleviate or eradicate some of its effects or potential effects.
In Ncube, it was held that the four conditions for exercise of the emergency power had been met because of the pandemic and that the legislation was wide enough that the eligibility criteria of s.185 HA 1996 did not apply.
The judgment also held that the local authority may use their power under s.2b of NHS Act 2006 to act to improve the health of those in their area and that this may be used to accommodate during an emergency, such as the pandemic.
While the judgment did state that the ultimate responsibility for accommodating people with NRPF status is the Home Office through their contractors either by asylum support or the victim care contract, a local authority will have to consider exercising their emergency powers to prevent ‘street homelessness’ while the accommodation from the Home Office is being put in place.
Unhelpfully, the judge didn’t decide on whether the Localism Act 2011 was engaged or not.
The practical importance of this case for victims of trafficking subject to immigration control during the present pandemic or other emergencies in the future, is that the local authority have to consider using their discretionary powers to ensure that people are not ‘street homeless’ during an emergency for public health reasons, as a safety net while appropriate accommodation is provided through the victim care contract.
If the local authority fails to consider exercising their powers during a public health emergency, this would be subject to a judicial review challenge. The advice of a community care, public law, or housing solicitor should be sought.