ADVISER: Reviewing a decision that someone is intentionally homeless

Our adviser Faith recently helped a client who had presented as homeless to the Northern Ireland Housing Executive (NIHE) after losing his tenancy.  

Mark had been a tenant in supported accommodation. He has complex mental health conditions and has been under the care of a psychiatrist for some time. Mark’s tenancy broke down when he experienced a decline in his mental health. His behavior became unpredictable. After a serious incident with a member of staff, he was asked to leave his accommodation. 

His care team felt that he would cope better in accommodation in the community with a care package and they asked NIHE to assess him under homeless legislation and place him on the waiting list for an allocation of social housing. In their referral, his care team asked NIHE to take his poor mental health into account when considering the actions that led to the end of the tenancy. 

However, NIHE decided that Mark’s behaviour was a deliberate act. This decision meant that Mark was intentionally homeless and NIHE was not required to provide him with accommodation.  

The intentionality test for homelessness

Article 6 of The Housing (NI) Order 1988 deals with the intentionality test.  Paragraph 6 (1) states  “A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation, whether in Northern Ireland or elsewhere, which is available for his occupation and which it would have been reasonable for him to continue to occupy,” 

This means a homeless applicant is intentionally homeless if they:- 

• deliberately; 
• do something or fail to do something; 
• which directly leads to the loss of their home and 
• the home was suitable for them 

Were the applicant’s actions deliberate? 

Faith requested a review of NIHE’s decision that Mark was intentionally homeless. Her submissions argued that Mark’s actions were not deliberate, but were caused by his mental health issues.  Mark’s psychiatrist and social worker both provided compelling supporting evidence of his mental health difficulties and how these had impacted on his behaviour at the time he lost his tenancy. Mark’s behaviour and reactions were outside of his control. The incident with the member of staff should not be considered as deliberate. 

Was the client discriminated against because of a disability? 

Faith also argued that NIHE had not acted in accordance with The Disability Discrimination Act 1995 (DDA). The DDA defines a disability as “a physical or mental impairment which has substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.  Mark’s diagnoses mean that he is a person with a disability. The DDA protects Mark from being discriminated against because of his disability. Service providers, such as NIHE, must make reasonable adjustments to policies and procedures to remove barriers that could make it unreasonably difficult or impossible for a disabled person to access a service such as housing. It appeared that NIHE had failed to consider Mark’s multiple mental health diagnoses when assessing his actions and to make appropriate reasonable adjustments in their decision making. 

As a public body, NIHE is also required to comply with Section 75 of the Northern Ireland Act 1998. NIHE must ensure equality of opportunity between people with disabilities and people without disabilities. Mark’s ability to access accommodation was being hindered by the way in which NIHE had assessed his actions, which were directly related to his disability. 

The review was successful and NIHE overturned its original decision. Mark is now on the waiting list with full duty applicant status. Mark is living in temporary housing arranged by NIHE, where he will stay until he finds a new permanent home.