Faced with growing demand and dwindling supply, councils have become experienced in using the law to keep homeless people off their waiting lists
As a solicitor-advocate who practises in housing law, I have done this work long enough, and seen the same outcomes in dozens of cases, not to notice that while homeless applicants struggle for a roof over their heads, housing officers will, without fail, use every tool at their disposal to refuse a homeless application.
This is not to suggest that housing officers have any ill-will towards homeless people or that they deliberately take a malevolent approach. But many local authorities have developed techniques that are actually quite clever to uphold their assumed roles as gatekeepers.
While few countries do as much as the UK to assist homeless people, there is still a substantial weakness in our system, which is the approach taken by the judiciary in England and Wales. Back in February 2009, Lord Neuberger stated that a “benevolent approach” should be adopted when courts looked at review decisions. Many people probably believe that while local authority housing officers may not be perfect, they are at least benevolent when considering applications by homeless applicants. But those of us who fight on behalf of clients in need of housing know the reality on the ground is far more stark.
Most homelessness appeals do not turn on minor, technical errors of law. Far more common are appeals based on the persuasiveness of medical evidence, or questions as to whether someone can reasonably be expected to continue living in their own home. These type of cases hinge on the court’s discretion, usually to the effect of assessing whether a vulnerable person is significantly more vulnerable than an “ordinary person”.
In isolation, this can look like an honest effort at reaching a difficult but fair decision, by a person whose job it is to make judgments. But over time, it is impossible not to notice that the so-called “benevolent approach” too often leads to support for questionable decisions, especially for county court judges, who may be unfamiliar with challenges under the 1996 Housing Act, and who are perhaps more naturally inclined to prefer the arguments posited on behalf of an overworked housing officer.
Take, for instance, the case of a single homeless woman who has been living on the streets for four years, who approaches her local housing authority with a letter from her GP that makes clear her severe mental health issues, her high risk of suicide and the risk of relapse into drug-taking and reoffending if she is not re-housed. Even though her GP describes her as extremely vulnerable, the council says she is not significantly more vulnerable than an “ordinary person”, because she doesn’t need any overnight care, she can use public transport, and she can continue to visit her GP even while homeless.
She appeals. An independent reviewer upholds the initial finding that she does not have priority need. She appeals to the county court. The county court judge appears quite critical of the council, questioning its interpretation of the medical evidence and some confusing wording in the review decision. But in his judgment, he finds for the council. He says that although some parts of the review decision are contradictory, when viewed as a whole and when applying a “benevolent approach”, the council is entitled to make its decision.
That hardly seems benevolent for this particular woman, nor for the 4,134 rough sleepers in the UK.
Of course, the real answer is to expand the supply of social housing. But a more attainable solution might be for the judiciary to have a more realistic understanding of how the Housing Act is being applied, and to appreciate the need for a more truly benevolent approach towards homeless people.