Section: Homelessness & Asylum Seekers
New Regulations
Source: Office of Public Sector Information
The Persons Subject to Immigration Control (Housing Authority Accommodation and Homelessness) (Amendment) Order 2006 SI 2521
This Order amends the Persons subject to Immigration Control (Housing Authority Accommodation and Homelessness) Order 2000. It replaces one of the limbs of Class B, to reflect changes to the process of and language used in the granting of leave outside the immigration rules. What was formerly known as "exceptional leave" has been replaced with "leave outside the immigration rules."
This Order also inserts a new class (Class BA) that covers persons who have humanitarian protection granted under the immigration rules. Before 9 October 2006, persons qualifying for humanitarian protection were granted leave outside the immigration rules. From 9 October 2006 the status of humanitarian protection will be included within the immigration rules.
The Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006 SI 2527
These Regulations make provision in relation to the allocation of housing accommodation under Part 6 of the Housing Act 1996 and to housing assistance under Part 7 of the 1996 Act. These provisions apply in England only.
Regulation 2 amends the provisions of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, which prescribe the classes of persons from abroad who are subject to immigration control who are eligible for an allocation or for housing assistance. The Regulations substitute for old Class D of the Eligibility Regulations a new class of persons who are eligible for an allocation and for housing assistance. The effect of this is two-fold:
The amendments remove from the Eligibility Regulations the class of eligibility relating to persons who left Montserrat after 1 November 1995 because of the effect on that territory of a volcanic eruption.
They substitute a new class of eligible persons who have humanitarian protection. Humanitarian protection is a form of leave granted to persons who do not qualify for refugee status but who would face a real risk of suffering serious harm if returned to their state of origin (see paragraphs 339C-344C of the Immigration Rules (HC 395)).
Regulation 3 makes provision in relation to the conditions which must be met under section 198(4) of the 1996 Act in order for a local housing authority to refer an application for housing assistance to another authority. Under section 198(4), one of the conditions for referral of a homelessness case to another authority is that the applicant was placed in accommodation in the district of the authority to which his application is now made, following a previous application made within a prescribed period to that other authority. Regulation 3 prescribes the period of time in which the previous application must have been made.
The amendments made by these Regulations do not affect applications for an allocation or for housing assistance made before 9 October 2006.
The Allocation of Housing (Wales) (Amendment) Regulations 2006 SI 2645 (W.226)
These Regulations amend the provisions of the Allocation of Housing (Wales) Regulations 2003, which prescribe the classes of persons who are subject to immigration control who are eligible for an allocation of housing accommodation.
Homelessness (Wales) Regulations 2006 SI 2646 (W.227)
A person who is subject to immigration control is not eligible for housing assistance under Part VII of the Housing Act 1996 (homelessness) unless that person is of a class prescribed in relation to Wales by the National Assembly for Wales (section 185(2)). The National Assembly for Wales may make provision as to other descriptions of persons who are to be treated for the purposes of Part VII as persons from abroad who are ineligible for housing assistance (section 185(3)).
The Regulations insert a new class of persons who are subject to immigration control, who are eligible for housing assistance and who have humanitarian protection.
Serious Consequences of 'Gatekeeping Approach'
The important focus on prevention of homelessness should not lead councils to adopt a 'gatekeeping approach,' meaning they should not refuse to take homelessness applications from people who may be eligible for help, says Local Government Ombudsman, Tony Redmond.
In his report, he finds serious failings by Thurrock Council in repeatedly failing to take homelessness applications from a woman fleeing domestic violence from her husband in Nigeria.
The Ombudsman recommended the Council:
- apologise to the complainant;
- pay her £2,250 compensation; and
- review its training for front-line staff, to ensure they have a sound grasp and understanding of homelessness law and practice.
The Ombudsman also suggested that this report could be used in training, to illustrate poor practice.
Miss W, a British citizen, fled to the UK following domestic violence from her husband in Nigeria. She was pregnant at the time. As she had very few friends or contacts in the UK, it was important to her to live within a reasonable proximity of those she knew.
Miss W experienced complications during the birth of her baby and was required to undergo medical treatment for some time. She also suffers from depression.
Shelter complained on behalf of Miss W that Thurrock Council failed to investigate whether it owed her a duty as a homeless person when she requested assistance with housing on three occasions following her arrival in the UK. These were in May 2004, August 2004, and February 2005.
Miss W was pregnant and staying temporarily with a friend in Thurrock when she first approached the Council for assistance with housing, in May 2004. Her friend had asked her to leave and so she was threatened with homelessness. Miss W was interviewed, but no homelessness application was taken and the Council has no records of her visit, or of the advice she was given.
Miss W approached the Council again, in August 2004. By then her baby had been born and she was living temporarily in a women's refuge in Essex. On this occasion, the Council took a homelessness application, but this was later cancelled by the case officer. Miss W was neither consulted about nor informed of this decision.
Miss W returned to the Council for a third time in February 2005 to seek assistance. By then she had left the women's refuge because her baby had been ill and she had returned to live with the friend who had previously accommodated her. She was sleeping on a sofa in the living room, or sometimes sharing a bed with the friend's disabled elderly aunt. Her baby daughter was sleeping in a car seat, or sharing the bed with her mother and the friend's aunt. Again, no written decision was issued, which meant Miss W could not challenge it through the review procedure.
The Ombudsman upheld the complaint, finding serious failings in the way the Council dealt with Miss W's requests for assistance with housing. The Ombudsman criticised the Council's failure to recognise Miss W was seeking assistance as a person who was homeless or threatened with homelessness, take homelessness applications, make adequate enquiries, and issue decisions in writing.
He also found the Council's record keeping inadequate and it was only by obtaining documents from Shelter that he could establish some of the facts.
He further concluded that some of the officers who interviewed Miss W appeared to misunderstand some of the fundamental concepts in homelessness law and jumped to conclusions without first making adequate enquiries to establish all the relevant facts.
He decided that the failures denied Miss W the right to challenge decisions by using the statutory review procedure.
Ombudsman Tony Redmond said: "I am aware of the intense pressures councils face in dealing with homelessness applications and the need to meet challenging government targets to reduce the number of families in temporary accommodation. But councils must not forget that they operate within the legal framework of Part VII of the Housing Act 1996 and that homeless applicants and potential applicants have rights and legitimate expectations about the service councils should provide when they are homeless."
Local Government Ombudsman Report No. 05/A/09461
Vulnerable Children Leaving Custody failed by Local Authorities
A new report by the Howard League for Penal Reform reveals that local authorities are breaching their statutory duties by systematically failing to provide suitable accommodation and support for vulnerable children leaving custody, which also puts the public in danger of further crime.
Lawyers at the Howard League for Penal Reform have represented over 100 children in custody. Almost all the children had suffered abuse and neglect; many had a history of being in care or had been homeless.
The Howard League for Penal Reform legal team found that local authorities across the country are flouting a whole range of legislation designed to ensure that children do not leave custody bereft of support. Many children are returning to precisely the same situation that led to their imprisonment in the first place.
Test Case of Child Released from Custody Homeless
The Howard League for Penal Reform was granted leave to appeal to the House of Lords on the case of a young girl released from custody with no safe home. It is believed the case will affect the provision of services to all vulnerable children released from custody.
The Court of Appeal dismissed the case in July but confirmed that it is not for children to identify themselves as being in need and that any failure by a child to co-operate with authorities does not absolve local authorities of their duties under the Children Act.
The case is important, as the Howard League for Penal Reform has gathered evidence of more than 100 vulnerable children leaving custody (see the above report), who are being neglected by authorities. Authorities either fail to identify their needs, or give up on children who find it difficult to engage with authorities.
The Howard League for Penal Reform argued that, even before she went to prison, the girl should have been identified as a child in need and given help from Social Services instead of being placed in various forms of temporary accommodation by Hammersmith and Fulham Housing Department.
The girl in question had been ejected from the family home by her terminally ill mother, who was unable to cope with her, and sought help from Social Services, but was referred by them to the Housing Department. The Howard League for Penal Reform argued that had she been picked up by Social Services, she would have been entitled to additional help from them on release from prison, to help her re-build a life for herself and her unborn child.
The Court of Appeal considered the narrow point of whether the Housing Department had acted unlawfully by providing her with temporary accommodation when she should have had help from Social Services, and decided that in this particular case they could see no evidence that it had. However, the Howard League for Penal Reform is challenging this decision and arguing that the girl was clearly vulnerable and that it was the duty of the local authority as a whole to ensure she received the appropriate on-going support and care from Social Services.
Case Law Update
The claimant, a Jamaican national, had remained in the UK without leave. Four of her five children were born in the UK. One was with his father and the other four were subject to care proceedings.
The claimant was homeless and applied to Haringey Council for assistance with housing. The Council decided she was neither eligible for social housing or homelessness assistance.
The Council also decided that, although she might suffer hardship if she was street homeless, any suffering would arise solely from destitution and therefore not entitle her to assistance under NAA 1948 s21. The Council concluded that any care and attention the claimant needed could be met by her returning to Jamaica.
The Court found that the Council had failed to properly address the following:
- Whether destitution would be the sole cause of her need for care if street homeless, especially as there was suggested pre-existing mental illness.
- Whether her right to respect for family life would be impaired if she were forced to leave the UK without her children.
PB v Haringey LBC [2006] EWHC 2255 (Admin), 18 September 2006, Admin
Mr Danesh was accommodated as an asylum seeker in Swansea, but, having been granted leave to remain, travelled to London and applied to Kensington & Chelsea Council as homeless. The Council accepted he was owed the main housing duty but referred that duty back to Swansea Council.
Mr Danesh asked for a review on the basis that he would experience racially motivated aggression and gestures if he had to go back to Swansea.
A reviewing officer confirmed the original decision and was upheld by the Court of Appeal. The Court held that "violence" in the Housing Act 1996 s198 only referred to actual or threatened physical violence.
Kensington & Chelsea RLBC v Danesh [2006] EWCA Civ, [2006] All ER (D), 5 October 2006
The claimant applied to her landlord, Lambeth Council, for assistance as a homeless person, claiming her home was no longer reasonable for her to continue to occupy on medical and disability-related grounds.
The Council decided the claimant was not homeless, as her tenancy was continuing and she was not wheelchair-bound.
The claimant sought Judicial Review on grounds the decision notice did not give sufficient reasons addressing her application. Before the review could be heard, the Council accepted that the decision was irregular and reviewed it, but reached the same decision. A County Court appeal against the review decision was pending.
The judge dismissed the Judicial Review claim and held that any irregularity in the original decision could be addressed by the alternative remedy, being the County Court appeal.
R (Lynch) v Lambeth LBC [2006] All ER (D) 177 (Oct), 16 October 2006
© Copyright 1996 - 2008 UK Housing Ltd. Housing Monthly Diary
Issue: November 2006 Reporting on Sept.-October 2006
- Allocations & Transfers
- Antisocial Behaviour & Nuisance
- Homelessness & Asylum Seekers
- Housing & Estate Management
- Housing Benefit & Council Tax
- Housing Grants
- Private Sector
- Racial Equality
- Repairs & Improvements
- Right to Buy
- Security of Tenure
- Travellers and Gypsies
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