COVID-19: Rough sleepers and priority need

The particular challenges faced by this group are obvious. They are at heightened risk of infection as a result of an inability to stay safe indoors and to follow public health advice in regards to hygiene, particularly once the closure of public conveniences and shops limited access to toilet and washing facilities.

Housing Executive’s duty to provide temporary accommodation

Article 8 of the Housing (Northern Ireland) Order 1988 imposes a duty on the Housing Executive to provide accommodation to persons, pending a full investigation into their circumstances, where NIHE has reason to believe that the person may be homeless and may be in priority need. This duty does not arise if it is immediately apparent that a person is an ineligible person from abroad. This means that there are 2 groups of people who have no statutory right to temporary accommodation, despite having no accommodation, during this pandemic

• people who have no recourse to public funds or who immediately be determined as being ineligible for assistance by virtue of their immigration status
• people who have no obvious priority need, (likely to include people without children who are in reasonable health and have no specific vulnerabilities)

Approach to rough sleeping in Northern Ireland during COVID-19 pandemic

While there has been no change to legislation setting out the Housing Executive’s duties to prevent homelessness and to assist those who are homeless or threatened with homelessness, the Housing Executive has agreed a memorandum of understanding with the Department of Communities and the Public Health Agency that commits to ensuring that rough sleepers are provided with accommodation. This memorandum was agreed for a 12-week period from the end of March, at which point it will be reviewed.  

Who does the Memorandum of Understanding assist?

The Housing Executive does not have a legal duty to provide accommodation to a person who is homeless

• if that person does not appear to have priority need or
• if it is immediately apparent that the person is an ineligible person from abroad.

Ineligible people from abroad includes people who have overstayed in the UK, who are in the UK with conditions imposed on their residency limiting their access to public assistance and EEA nationals who are not exercising treaty rights. 

The Housing Executive's legal duty to provide a homeless person with temporary accommodation only arises if the Housing Executive has reason to believe that the person is homeless and may have priority need. This will most typically be people without children, or people who have shared access to children but are not recognised as the primary carer, who are in reasonably good health. 

A legal duty to accommodate persons who are homeless but not owed a duty by the Housing Executive may fall on the Health and Social Care Trust, but only if the person is categorised as an adult with needs for care and support as provided by The Health and Personal Social Services (Northern Ireland) Order 1972.

We have not seen a copy of the Memorandum of Understanding (MOU), but have been advised that it only applies to those people who are ineligible for assistance by virtue of their immigration status. This leaves other groups at a risk of rough sleeping and a heightened risk of infection during the pandemic. Our advisers have been able to secure temporary accommodation for people who are eligible, but who do not have any obvious priority need, by citing this MOU although it is not clear if this group is strictly covered by the MOU. 

The priority need test

Article 5 of the 1988 Order sets out the categories of person considered to have a priority need for accommodation.  These are

• a pregnant person
• a person whose household includes dependent children
• a person who is vulnerable as a result of old age, mental illness or handicap or physical disability, or other special reason
• a person who is homeless or threatened with homelessness as a result of an emergency, such as flood, fire or other disaster
• a person without dependent children who satisfied the Executive that he has been subject to violence and is at risk of violent pursuit or further violence
• a young person who satisfied the Executive that he is at risk of sexual or financial exploitation.

As the Minister for Communities has previously declared COVID-19 pandemic as a disaster, in order to allow students to access discretionary financial support, it is certainly arguable that any person who has had to leave their accommodation as a result of COVID-19 could be regarded as having priority need for accommodation, even if they do not have any other indicators. This may be applicable if, for example, a person asks a key worker to move out of the accommodation they share as a result of concerns about spreading the virus.

The legislation allows that a person be treated as having a priority need for accommodation if they are vulnerable for a special reason. Significant case law has developed over time to guide decision makers in understanding when a person is vulnerable. The approach that a decision maker must take is to consider whether a person is more vulnerable than an average person would be if made homeless.

Welsh Guidance suggests all rough sleepers should have priority need

On 28 April 2020 Welsh Minister for Housing and Local Government issued specific guidance to assist decision makers in assessing rough sleepers under the homelessness legislation during the pandemic. As in Northern Ireland, housing authorities in Wales will only have a duty to provide accommodation if a person passes certain tests, with one of these being a priority need test.

The Welsh categories of priority need include a provision that a person be regarded as having priority need if they are vulnerable as a result of some special reason. The Welsh legislation also further defines “vulnerable” as meaning that a person would be less able to fend for him or herself on becoming street homeless than an ordinary homeless person would.  The guidance states:

The Covid-19 pandemic presents a grave and exceptional risk to those persons who are homeless. Such persons may be unable to adhere to health advice, to self-isolate or socially distance, or to maintain the necessary hygiene requirements. This is not the level of risk to which an ‘ordinary homeless person’ is exposed.

The new statutory guidance from Wales makes it clear that if a local authority decides that a rough sleeper does is not vulnerable for these purposes during the COVID-19 pandemic, they would need to have “…a documented and robust evidential basis for its determination, which will withstand rigorous scrutiny and legal challenge.“

Effectively, the Welsh Government has accepted that the COVID-19 pandemic renders a rough sleeper is considerably more vulnerable than an ordinary homeless person, unless there is robust evidence to contest this position.

Relevance to Northern Ireland

While the legislation governing homelessness in Wales and Northern Ireland is not identical, it is similar. The 1988 Order does not include the same definition of vulnerability that is included in the Welsh legislation. The Welsh guidance applies only to authorities in Wales and is in no way binding on decisions of the Housing Executive.