House of Lords - Explanatory Note
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Part 2 - Homelessness and Allocation of social housing


67.     With the exception of clauses 16 to 19, which are new provisions, all clauses in Part 2 of the Bill and Schedules 2 and 3 amend or repeal existing provisions on homelessness and the allocation of housing accommodation contained in Parts 6 and 7 of the Housing Act 1996 (and, in one case, section 106 of the Housing Act 1985).

68.     Clause 16 imposes a duty on local housing authorities ("authorities") to carry out a homelessness review and formulate and publish a homelessness strategy based on the result of the review.

69.     A homelessness strategy must be published at least every five years. The first strategy must be published within one year of commencement of clause 16. Before publication, the authority must consult the social services authority and other appropriate organisations. The social services authority must give such assistance as the authority may reasonably require in relation both to the carrying out of the reviews and the formulating and publishing of the strategy. Housing and social services authorities must take into account the homelessness strategies in carrying out their functions.

70.     Clause 17 defines "homelessness review" as a review by local authorities of:

  • the levels, and likely future levels, of homelessness in their district;

  • the actions being taken to prevent homelessness, to secure that accommodation is or will be available and to provide information or assistance to those who are or may become homeless; and

  • the resources available to the authority and other bodies for carrying out the above actions.

71.     It also sets out the places where the results of the review must be made available for public inspection and provides for members of the public to have a copy of those results (on payment of a reasonable fee if the authority requires).

72.     Clause 18 defines "homelessness strategy" by setting out the matters it must cover, namely:

  • the prevention of homelessness;

  • securing that sufficient accommodation is available for those who are, or may become, homeless; and

  • the provision of satisfactory services to such people.

73.     A strategy may include specific objectives and activities expected to be carried out by:

  • the local housing and social services authorities;

  • other appropriate public authorities; or

  • appropriate voluntary organisations including registered social landlords and homelessness charities.

74.     In formulating its strategy, an authority must consider the ways in which the objectives of the strategy can be achieved by the various authorities and other bodies and organisations working together. It must also keep its strategy under review and may modify it. However before publishing a strategy, or any modification to it, an authority must consult, as it considers appropriate, the authorities and organisations mentioned in paragraph 71 above. Again an authority must make available for inspection, and provide - on request and on payment of a reasonable fee - copies of documents published under this clause.

75.     Clause 20 provides authorities with a power to secure accommodation for applicants who are not in priority need and are not homeless intentionally, where previously they had no power to do so.

76.     Equally where an applicant is in similar circumstances, but only threatened with homelessness, an authority may take reasonable steps to secure that he continues to be housed in his current accommodation.

77.     Clause 21 amends the provisions of Part 7 of the 1996 Act which govern the period for which local housing authorities are under a duty to secure accommodation for applicants who are unintentionally homeless and in priority need.

78.     At present, section 193(3) of the 1996 Act provides that the duty is owed for a two year period and section 194 enables (but does not oblige) authorities to continue to secure accommodation after the end of that period.

79.     Clause 21(1) removes the two year time limit by substituting a new duty to secure accommodation until any of the circumstances specified in section 193 of the 1996 Act cause the duty to cease. In consequence of the abolition of the two year period, the power in section 194 is repealed at clause 21(3). Transitional provisions provide that people accommodated under either section 193 or 194 immediately prior to commencement of this clause are owed the new duty.

80.     Clause 22(1) amends section 193(6) of the 1996 Act which sets out circumstances under which the main duty to secure accommodation ceases. It provides additional circumstances at clause 22(2), namely where an applicant accepts an offer of an assured tenancy, which is not an assured shorthold tenancy, from a private landlord.

81.     Clause 22(3) replaces section 193(7) of the 1996 Act and clarifies the ending of the main homelessness duty where the applicant refuses an offer of suitable accommodation allocated under Part 6. The authority has to notify the applicant in writing that the offer is a final offer and that the duty will end if it is refused.

82.     Clause 22(4) also inserts new subsections before section 193(8) of the 1996 Act. These provide that where accommodation is made available to an applicant by a private landlord as a result of an arrangement between the authority and the landlord, the authority's homelessness duty under section 193 can be brought to an end if the applicant accepts an offer of an assured shorthold tenancy. The provisions make clear that an applicant is free to reject such an offer without this affecting the duty owed to him by the authority under section 193. They also provide that the acceptance of such a shorthold tenancy is not effective unless the tenancy is for a fixed term and the applicant confirms in writing that he understands the effect of accepting the offer (ie that it will bring to an end the section 193 homelessness duty owed to him by the authority).

83.     In both the case of a final offer of accommodation under Part 6 and the offer of an assured shorthold tenancy secured by the authority, the offer is not effective unless the authority can be satisfied that the accommodation is suitable for the applicant and it would be reasonable for him to accept it.

84.     Clause 23 repeals section 197 of the 1996 Act which, in cases where other suitable accommodation is available for occupation by an applicant, replaces any duty for the housing authority to secure accommodation by a duty simply to provide advice and assistance in obtaining accommodation. In consequence, applicants for whom authorities are required to secure accommodation will be owed the stronger duties in section 193 (homelessness) or section 195 (threatened with homelessness). It also provides that a person owed the section 197 duty immediately before commencement, is owed the section 193 duty or the section 195 duty, as the case may be, on commencement.

85.     Clause 24 deals with persons claiming to be homeless who are at risk of violence. It amends section 177 of the 1996 Act to provide that, for the purposes of determining homelessness, it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to violence or threats of violence against him or someone with whom he usually resides or might reasonably be expected to reside. At present the provision only applies to cases of domestic violence. A consequential amendment is made to the conditions in section 198 of the 1996 Act for the referral of an applicant from one housing authority to another.

Allocations under Part 6 of the Housing Act 1996

86.     Clause 25 amends section 159 of the 1996 Act (allocation of housing accommodation) to provide that an allocation of accommodation to an existing tenant falls within Part 6 of the 1996 Act where the allocation involves a transfer of accommodation made in response to an application by the transferee.

87.     All other allocations made to existing tenants (e.g. those made at the instigation of the local authority to facilitate the refurbishment of a building by re-housing the tenants) remain outside Part 6.

88.     Clause 26 provides that authorities are no longer required to maintain a housing register (and, in consequence, sections 161 to 165 of the 1996 Act are repealed).

89.     Clause 26 also inserts a new section 160A into the 1996 Act. Section 160A concerns eligibility for an allocation of accommodation (and replaces section 161). Any person is eligible unless they are subject to immigration control or they are prescribed by the Secretary of State as ineligible. If they are subject to immigration control they are eligible if they are prescribed by the Secretary of State as such. Authorities must notify the applicant in writing where they decide that he is ineligible.

90.     Clause 26 also provides that those who, immediately prior to commencement, were either on the housing register, or had made an application to be put on the housing register which had not been determined, must be treated on commencement as having applied to the authority for housing accommodation.

91.     Clause 27 substitutes new section 166 (applications for housing accommodation) for that relating to information about the housing register in consequence of the abolition of the requirement to maintain a register.

92.     New section 166(1) concerns the provision of advisory services. Authorities must ensure that advice and information is available free to everyone in its district about the right to make applications for housing accommodation. Authorities must also ensure that any necessary assistance is available free of charge to those within its district who fall within the reasonable preference categories (introduced by clause 28 below) and who are likely to have difficulty in making an application.

93.     In addition under new section 166(2) applicants are entitled to be given general information to enable them to assess when they might be allocated accommodation, but under section 166(4) authorities are prohibited from divulging to the public that a person has applied for housing.

94.     Clause 28 amends section 167 of the 1996 Act (allocation in accordance with allocation scheme). Section 167(2) is substituted by new provisions that set out revised categories of applicants who must be given reasonable preference in allocations. These are:

  • people who are homeless;

  • people owed certain homelessness duties;

  • people living in unsatisfactory housing conditions (including insanitary or overcrowded housing);

  • people with a particular need to move on medical or welfare grounds; and

  • people with a particular need to move to avoid hardship to themselves or others.

95.     New section 167(2) also provides that allocations may be framed so as to give additional preference to particular descriptions of people who fall within the reasonable preference categories and have urgent housing needs.

96.     Clause 28(3) also inserts new subsections (2A) to (2E) in section 167 of the 1996 Act to supplement the provisions on the giving of reasonable preference in an allocation scheme.

97.     New subsection (2A) provides that allocation schemes may include provision for determining priorities as between applicants who fall within the reasonable and additional preference categories. The factors which can be taken into account in determining priorities may include:

  • the financial resources available to an applicant to meet his housing costs;

  • any behaviour of a person which affects his suitability to be a tenant; or

  • any links which a person has with the local authority district.

98.     New subsections (2B) to (2D) provide that nothing on the new section 167(2) requires a scheme to provide for any preference to be given to any person if the housing authority is satisfied that he is unsuitable to be a tenant owing to his own unacceptable behaviour or that of a member of his household. Behaviour is unacceptable if it would entitle the authority to a possession order against a secure tenant on one of the grounds in Part 1 of Schedule 2 to the Housing Act 1985.

99.     New subsection (2E) requires an allocation scheme to secure that an applicant for housing accommodation has the right to request a review of any decisions about the facts of his case (including his suitability) which have been, or are likely to be, taken into account in considering whether to allocate to him.

100.     Finally, clause 28(3) also inserts new section 167(2F) which provides that, subject to the new section 167(2), allocation schemes may contain provisions about allocating particular accommodation to:

  • persons who make a specific application for that accommodation; or

  • persons of a particular description (whether or not they fall within the reasonable preference categories).

101.     Clause 30(1) gives effect to Schedule 2 which contains minor and consequential amendments. In particular, there are amendments to sections 193 and 195 which require housing authorities to provide applicants owed duties under those sections with a copy of a statement of its policies on offering choice to applicants for an allocation of accommodation under Part 6. The Schedule also amends section 209 of the 1996 Act (which limits the type of tenancies that can be offered to homeless households by a private landlord). It removes the restrictions in that section relating to the granting of assured tenancies where a registered social landlord assists a local housing authority discharge its homelessness functions.

102.     Clause 30 (3) also provides that the provisions of Part 2 do not affect section 216(2) of the 1996 Act (transitional provisions which apply in relation to applications for accommodation or assistance made before commencement of Part 7 of the 1996 Act).

Part 3 - Final Provisions

103.     Clause 32 provides the Secretary of State with power to make transitional provisions by statutory instrument. In respect of any such provisions relating to homelessness and allocation of accommodation in Wales, this power is exercisable by the National Assembly for Wales.

104.     Clause 34 provides that the Bill extends to England and Wales only (save for paragraph 13 of Schedule 1). It also applies the legislation to the Isles of Scilly with a power for the Secretary of State to modify the application by order.


Home Buying and Selling

105.     There will be little effect on public expenditure, although the Secretary of State will incur expenditure as a result of making grants under clause 12. Sellers and/or private companies, such as Estate Agents, will meet any additional costs relating to the home buying and selling proposals. Both sellers and buyers, as well as others involved in the process, stand to benefit from efficiency savings and reductions in abortive costs which result from an improved process.

Homelessness and Allocation of social housing

106.     The proposals will entail some additional costs to enable local authorities to meet their strengthened homelessness duties. In recognition of this, increased provision of £8 million has been made as part of the Revenue Support Grant settlement.


Home Buying and Selling

107.     There will be little effect on public service manpower. The proposed new regulations will be enforced by local authority trading standards officers who will operate a fixed penalty scheme. The Courts will act as a backstop in the most serious cases and others where the fixed penalty is contested or not paid. The average cost to individual local authorities is estimated at £5,000 (or about a quarter of one post). The cost of any additional workload for the Courts and Tribunals is likely to be negligible.

Homelessness and Allocation of social housing

108.     While the provisions will require local housing authorities to reappraise their approaches to homelessness, they are expected to have a largely neutral impact on public service manpower numbers.


Home Buying and Selling

109.     A regulatory impact assessment has been carried out and is available from the Department of the Environment, Transport and the Regions at HPRO5, Zone 2/J9, Eland House, Bressenden Place, London, SW1E 5DU.

110.     The proposals will put a new burden on those marketing residential property for sale. The main business sectors affected by this requirement would be estate agents, solicitors acting as estate agents and house builders. There would also be consequential effects on mortgage lenders, conveyancers and the surveying profession. The proposal to include a home condition report in the seller's information pack will result in more business for the surveying profession.

Homelessness and Allocation of social housing

111.     The proposals have not been the subject of a regulatory impact assessment since they will have no impact on businesses or charities. The proposals are intended to encourage local authorities to work more closely with voluntary organisations that have a focus on homelessness.


Home Buying and Selling

112.     The home buying and selling provisions (clauses 1-11 and 13-15) will be brought into force by statutory instrument and are intended to commence in 2003. Clause 12 (power to make grants) will come into force on Royal Assent.

Homelessness and Allocation of social housing

113.     The homelessness provisions (clauses 16-24) will be brought into force by statutory instrument and are intended to commence in 2001. The provisions on allocations (clauses 25-28) will similarly be brought into force by statutory instrument and are intended to commence in 2002.

Human Rights Act 1998

114.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Whitty, the Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions, has made the following statement:

In my view the provisions of the Homes Bill are compatible with the Convention rights.

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Prepared: 9 February 2001