Council ordered to stop gatekeeping practices

Carmel Ferguson, Solicitor with Housing Rights, discusses a recent important Judicial Review taken against the London Borough of Southwark.  The JR, which was settled on the basis of a consent order, challenged the practices used by Southwark when approached by an applicant requesting housing assistance, claiming that these practices were unlawful.

Background to the case

The claimant, who has a wife and two children and lived temporarily with a friend, approached LB Southwark for assistance in January, but was turned away.  He approached the council again several days later with a letter from his GP,  The council provided the claimant with a single room for two weeks, explaining that they expected the applicant to find his own privately rented housing in that timeframe.

The family was unable to find accommodation and continued to request assistance from the council.  The family was consistently prevented from making an application for assistance until the claimant instructed solicitors.   

The firm representing the claimant, Hansen Palomares Solicitors, believed that the council was regularly using unlawful practices to prevent people from making an application for assistance and using this practice to keep the waiting lists artificially low, as Southwark had only agreed to accept an application for homelessness assistance once solicitors had gotten involved.  Although the applicants in this case were assessed and eventually awarded housing, the court agreed that it was in the public interest for the claim to proceed to a final hearing in order to establish whether the practice of “gatekeeping” or refusing applications unlawfully was widespread. 

Rather than going to a full hearing, the matter was resolved and a consent order set out the changes, which the Council agreed to implement.

This case was heard in the UK Administrative Court and applies the relevant UK legislation.  However,the general legislative requirements are the same in Northern Ireland.  

Unlawful practices

The concessions made by the Council in the terms of the Consent Order illustrate the extent to which it accepted that its policies and practices were unlawful.

The council agreed to cease immediately the following practices and policies:

• use of its "Housing Options" scheme, under which homeless applicants were treated as "housing options clients" for 14 days and expected to find their own privately rented accommodation, before being seen by a homeless caseworker
• use of its "Housing Options Service" leaflet, which made no mention of homeless assistance
• the requirement that applicants must have lived in the borough for 6 months before allowing them to make a homeless application
• the requirement that applicants prove, (rather than investigating if this is the case), that they are unintentionally homeless and in priority need
• the requirement that applicants be unemployed in order to make an application under the Housing Act 1996
• the omission of information on the applicant’s right to make a homeless application from the council’s “action plan”
• the requirement that applicants be homeless on the day or within 5 days of presenting in order to make an application for assistance

The consent order, which is available online from Hansen Palomares Solicitors, also required that the defendant take the following actions

• To use a new "Housing Options and Homelessness Services " leaflet to advise applicants fully of their rights
• To amend their online information to inform applicants of their right to make a homeless application
• To make the necessary enquiries in relation to anyone whom it has reason to believe may be homeless or threatened with homelessness
• To secure suitable accommodation is available for anyone who it believes may be homeless, eligible for assistance and have a priority need, pending a homeless decision
• To retrain its housing caseworkers in the Defendants obligations {to homeless applicants] and the changes in its policies and practices set out above.

That so many changes were needed to bring the defendant’s homelessness services back to the standard legally required shows the extent to which poor or illegal practices had developed and been accepted as normal.

Housing options and homelessness services in Northern Ireland

The Housing (NI) Order 1988, as amended, explains that the Northern Ireland Housing Executive (NIHE) must carry out an assessment when someone asks for assistance and appears to be homeless or likely to become homeless within 28 days to establish whether this person is entitled to assistance with housing.

If an applicant applies to the Housing Executive for accommodation or for help finding accommodation and NIHE has reason to believe that this person may be homeless or threatened with homelessness, the Housing Executive "shall make such inquiries as are necessary to satisfy itself as to whether he is homeless or threatened with homelessness".  If the Executive believes that the applicant is homeless or threatened with homelessness it must then investigate whether the applicant has a priority need and whether the applicant is intentionally homeless.  Where it seems as though the person is homeless and in priority need, NIHE must secure temporary accommodation for the applicant, and his/her family, until a decision has been made on the homeless application. 

Housing options led services can be a very effective way of finding suitable homes for people in need.  However, people who are facing homelessness still have a legal right to a homeless assessment and to temporary housing if they satisfy the conditions outlined in the Order. 

With pressure on public housing authorities likely to increase, the case is a timely reminder that the legal right to housing and homelessness services must not be wrongly circumvented by the authorities.  It is important that advisers ensure that the legal duties are not ignored or neglected in the authority’s guidance and procedures.