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Left Outside in the Cold: The Scandal of Gatekeeping

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

[T]he shocking truth is that even in the 21st century, in one of the richest countries in the world, homeless people who ask their local authorities for help are being turned away to sleep on the streets cold, desperate and forgotten. This is nothing short of a scandal.

That statement comes from a recent report by the charity, Crisis: Turned Away: The Treatment of Single Homeless People by Local Authority Homeless Services in England which found that many local authorities are providing inadequate or insufficienthelp to those that present themselves as homeless. These findings seem to show that local authorities are continuing to breach their statutory duties by employing tactics that deliberately reduce the number of homeless applications made, known as gatekeeping.

Some argue this phenomenon is the inevitable result of political and financial pressure from central government, but can there ever be an excuse for such failings?

The Main Homelessness Duty

The legislation governing duties around homelessness can be found in the Housing Act 1996 as amended by the Homelessness Act 2002 and the Homelessness (Priority Need for Accommodation) Order 2002. The 2002 amendments placed a greater emphasis on the role of prevention of homelessness (the housing optionsroute). Local authorities must also follow the Homelessness Code of Guidance (the Code) published by the Department for Communities and Local Government.

Under this legislative framework, English local authorities who have a reason to believethat a person is homeless or threatened with homelessness in the next 28 days (s.183(1) of the 1996 Act), must make enquiries as to whether that person is eligible for assistance (s.184(1) of the 1996 Act) and in priority need (as defined by the 2002 order). Priority needis defined in s.189(1) of the 1996 Act and the 2002 order to include: pregnant women; those with dependent children; those vulnerable due to old age, mental illness or physical disability; those aged 16 or 17 and owed a duty under s.20 of the Children Act 1989; former members of the armed forces; former prisoners; those fleeing violence or threats of violence; those homeless due to disaster such as fire or flood. These groups are all considered to be more vulnerable when compared to the general homeless population.

Whilst such enquiries are made there is a requirement under s. 188(1) of the 1996 Act that temporary accommodation should be provided. To qualify for the main homelessness duty, enquiries must also be made to establish whether the person is not intentionally homeless (s.191 of the 1996 Act) and whether they have a local connection (s.199 of the 1996 Act, with the exception of those fleeing violence). A person will be considered intentionally homelessif he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy’, for instance if they were evicted from rented accommodation for committing anti-social behaviour or other tenancy breach. For those that do qualify for the main duty, there is a requirement for the local authority to provide a settled home.

It is worth noting that in Scotland, where the law was amended in 2012 to provide all homeless households with an entitlement to temporary accommodation, the situation is quite different. In particular, the Homelessness (Abolition of Priority Need) (Scotland) Order 2012 abolished the concept of priority need. Wales too has also taken a slightly different approach in widening the categories of priority need in The Homeless Persons (Priority Need) (Order) 2001. These changes remove some of the avenues by which gatekeeping occur, and significantly widen the scope of those homeless people who become eligible for help.

However, with or without the concept of priority need, the definition of statutory homelessness appears to be a very narrow and questions may be raised as to why homelessness in itself is not priority enough to deserve help. As David Cowan explains in his book Housing Law and Policy the legislation represents a complex method of rationing access to a limited supply of accommodation.

Gatekeeping and The ‘Turned Away’ Report

Figures from the Department for Community and Local Government (DCLG) show that out of the over 110,000 homeless applications made in the period 2013-2014, less than half were accepted as meeting the necessary criteria. Other statistics show a 5% drop in applications from 2012 to 2013. In its report, Crisis argues that a significant partof this fall can be attributed to gatekeeping rather than a fall in need.

Gatekeeping is defined by Crisis in ‘Turned Awayas the process by which homeless people are prevented or deterred from making a homeless application so that the local authority avoids any duty to provide temporary permanent accommodation. Often the purpose is to reduce burden on local authority time and resources, or mistakes can arise through lack of staff training or awareness. 

It can also occur when people are prevented from making a homelessness application and are instead passed down the housing optionsroute. According to R (Aweys & Others) v Birmingham City Council, prevention measures cannot lawfully be used to defer an application being made, so when this occurs it is a form of gatekeeping.

The Turned Away research involved a mystery shoppingexercise across 16 local authorities both in and outside London. Actors, who had formerly been homeless, played a variety of characters including those in typical priority needcategories such as a person fleeing domestic violence. They found 29 out of 87 of the mystery shopsresulted in no assessment of the persons needs and no opportunity to make a homelessness application at all. Practices that prevented the making of an application included:

  • Applicants being told that they could not see a Housing Officer because they were not priority need or only receiving a superficial assessment, despite the fact that priorityis not a pre-condition of making an application (the application itself assesses priority!)
  • Applicants being told that the assessment could not take place unless ID or other paperwork proving residence was provided, despite the deliberately low threshold set that authorities only need to have a reason to believea person is homeless
  • Authorities not offering support in filling in application forms, despite the high prevalence of learning difficulties, low literacy rates and poor computer skills among homeless people
  • Applicants being made to wait for up to three hours before being seen for an appointment, acting as a disincentive to making an application
  • Applicants fleeing violence being told that they could not make an application in a local authority they did not have a connection to, despite being exempted from the local connection requirement in this circumstance 

The report concludes that there were numerous exampleswhere local authorities did not follow the legislation or Code. Contrary to the aims of the legislation, the research found that the law is being used by some local authorities as a way of gatekeeping with staff trying to prove people are not in priority need and not eligible for the main homelessness duty. 

Crisis are not alone in highlighting the problem of gatekeeping. The Local Government Ombudsman (LGO) has been critical of the practice, calling it a serious injusticein its 2011 reportHomelessness: How councils can ensure justice for homeless people.

In October this year, the LGO ordered Southwark Council to make an apology and award compensation of £1000 following a finding that it failed to accept a homelessness application from a pregnant woman who should have been assessed as having priority need. The woman, known as woman B, was seen by a filtering officerwho declined to progress her homelessness application. In an earlier decision in 2010 the LGO made a finding of maladministration causing injustice against the London Borough of Hammersmith and Fulham for similarly failing to place an eight-month pregnant woman fleeing domestic violence in temporary housing, even though she had been sleeping rough.

The courts too have typically taken a dim view. In Robinson v Hammersmith and Fulham LBC it was found that the local authority had delayed an application due to mediation (a preventative service) with the result that the applicant turned from 17 (a priority need) to 18 (non-priority need). In R (Kelly and Mehari) v Birmingham CC [unreported] the local authority was found to be gatekeeping its temporary housing by refusing to provide accommodation without investigations into the application taking place first. Finally, in R (Khazai) v Birmingham CC, the local authority had found to have policies and procedures resulting in gatekeeping, including an email circulated to staff which read with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application.

Financial and Political Pressures

So why are local authorities breaching their duty to house those in need? The answer seems to lie in the political and financial pressures such organisations are facing.

Firstly, there is simply less money to spend. Spending by local authorities on housing related services is calculated to have fallen in real terms by a third from 2010/2011 to 2014/2015 compared to an increase in rough sleeping in England (just one type of homelessness) of 37% from 2010 to 2013. Given the context of austerity and hostility to increased welfare spending, there is little political will to increase budgets in order to help local authorities cope with demand.

Secondly, there are scarce places to stay available for those who are accepted for help as statutorily homeless. The chronic and worsening shortage of all types of housing is particularly marked in London and the South East, so it is noticeable that the area where gatekeeping occurred most consistently was here. Many of those who are accommodated in temporary housing become stuckfor extended periods of time due to the lack of availability (and affordability) of permanent social housing: as at the end of June 2014, there were 59,710 households in temporary housing. Even where the number of people accepted as statutorily homeless is reduced by gatekeeping there are still too few homes to house them in. 

No Excuses

Given these pressures, it is perhaps understandable that the practice of gatekeeping endures. It cannot be denied that there are huge practical problems being faced by local authorities, and these demands are not likely to reduce in the near future. However, this consistent failure to deal appropriately with homeless people is not excusable.

The statutory duties for homelessness are exactly that: statutory. It is fundamental to the rule of law that legislation passed by Parliament is upheld and enacted. Inconvenience is not a justification for breach. Local authorities exist precisely for the purpose of providing necessary services in the local area; it is both illegal and immoral to attempt to evade this, for whatever reason. As argued by Andrew Arden QC and Clare Cullan from Arden Chambers, it is not merely a question of illegality but one of failing to recognise [local authoritys] own raison d’être: they are there to provide the services Parliament deems to be needed, for the people Parliament identifies, not for those they choose.

In its report, Crisis recommends the introduction of national statistics on outcomes of assessments and an inspection regime, as well as a comprehensivereview of the law. In the 6th largest economy in the world, which is growing at a rate of over 3%, such comparatively modest suggestions are far from impossible. Difficulties in enacting the legislation should lead to a call for change, either in statute or in budget, and not result in vulnerable individuals being denied the help they have a right to.

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Tagged: Housing Law

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