An Ombudsman report released today is making the rounds in the housing and local government media today and being presented as an overcrowding issue. It is an overcrowding issue BUT it contains much more important issues that will impact on homelessness duties.
Councils will have to regulate PRS landlords before discharging main homeless duty
The Ombudsman report deserves wider reading and especially its Conclusions which state:
28. When Mr Green and his family moved into their property their household was 3.5 people in terms of sections 324 -326 Housing Act 1985. But, given the size of the second bedroom, the house was overcrowded by .5 of a person from the moment they moved in.
29. Regardless of whether Mr Green received the letter of 7 May 2010 which told him of his right of review, it was maladministration for the Council to have offered Mr Green the property at all as it was not big enough for his needs. I expect the Council to be aware of the law in this respect and carry out basic checks on the properties it lets to ensure it complies with its statutory obligations. I find it unlikely that the Council was not aware there was a gas fire in the living room, and even if it was not clear, this detail should have been checked before the offer was made.
30. While the family remain in the property, the Council was in breach of the law and could be prosecuted for the offence. This is further maladministration.
The two emphasised points in section 29 and section 30 above are hugely important with regard to the coalition’s homelessness policy changes that housing minister Mark Prisk signed off last week and come into effect on 9 November 2012. I have copied and pasted the Statutory Instrument at the end of this but in simple terms it allow councils to discharge homeless families into the private rented sector providing the accommodation is suitable for a number of reasons.
Yet the LGO statement above clearly makes the case that the council attempting to discharge the main homeless duty into any accommodation must KNOW what that accommodation comprises in terms of size of rooms and whether it has gas fires or back boilers in any rooms. In short the council has to have visited that accommodation BEFORE it can discharge the main homeless duty.
This is a huge and very significant issue…
- Who in the council visits?
- Does this need an environmental health officer (EHO) to do this or will a cursory 5 minute look around by a homeless officer do?
- What and where is the official council policy on such visits?
- Will PRS landlords want to be regulated in this way as this is what it amounts to?
….and a whole host of other questions arise which will see councils having to become much more risk conscious if they attempt to use PRS accommodation to discharge the main homeless duty.
I posted last week that the Overall Benefit Cap that starts from April 2013 will see a huge rise in homeless families in London caused directly by the OBC and its £500pw cap. So London boroughs having to check physically all PRS homeless provision BEFORE referring or discharging people there is a huge workload and cost increase.
Moreover, given that a 2 parent 2 child family such as the one in the Ombudsman case above will receive about £256 pw in welfare benefit and the average two-bed PRS rent in London is £321.48, this would see a council making a determination that it is suitable for a family to find £77.48 pw out of their welfare benefit (30% of it) to pay the rent as housing benefit will be capped at £244pw. Any such decision or determination by a council that this is ‘suitable’ I would expect huge legal challenge to.
[Figures above from official VOA study into PRS rent levels and referenced here]
In summary while the Ombudsman issue does concern overcrowding and an important issue is raised in that area; the REAL issue is the homelessness impact issues discussed above.
The Homelessness (Suitability of Accommodation) (England) Order 2012
Made 11th October 2012: Laid before Parliament: 17th October 2012
Coming into force: 9th November 2012
1.—(1) This Order may be cited as the Homelessness (Suitability of Accommodation) (England) Order 2012 and comes into force on 9th November 2012.
(2) This Order applies in relation to England only.
Matters to be taken into account in determining whether accommodation is suitable for a person
2. In determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including—
(a)where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority;
(b)the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household;
(c)the proximity and accessibility of the accommodation to medical facilities and other support which—
(i)are currently used by or provided to the person or members of the person’s household; and
(ii)are essential to the well-being of the person or members of the person’s household; and
(d)the proximity and accessibility of the accommodation to local services, amenities and transport.
Circumstances in which accommodation is not to be regarded as suitable for a person
3. For the purposes of a private rented sector offer under section 193(7F) of the Housing Act 1996, accommodation shall not be regarded as suitable where one or more of the following apply–
(a)the local housing authority are of the view that the accommodation is not in a reasonable physical condition;
(b)the local housing authority are of the view that any electrical equipment supplied with the accommodation does not meet the requirements of regulations 5 and 7 of the Electrical Equipment (Safety) Regulations 1994(2);
(c)the local housing authority are of the view that the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;
(d)the local housing authority are of the view that the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation;
(e)the local housing authority are of the view that the landlord is not a fit and proper person to act in the capacity of landlord, having considered if the person has:
(i)committed any offence involving fraud or other dishonesty, or violence or illegal drugs, or any offence listed in Schedule 3 to the Sexual Offences Act 2003(3) (offences attracting notification requirements);
(ii)practised unlawful discrimination on grounds of sex, race, age, disability, marriage or civil partnership, pregnancy or maternity, religion or belief, sexual orientation, gender identity or gender reassignment in, or in connection with, the carrying on of any business;
(iii)contravened any provision of the law relating to housing (including landlord or tenant law); or
(iv)acted otherwise than in accordance with any applicable code of practice for the management of a house in multiple occupation, approved under section 233 of the Housing Act 2004(4);
(f)the accommodation is a house in multiple occupation subject to licensing under section 55 of the Housing Act 2004 and is not licensed;
(g)the accommodation is a house in multiple occupation subject to additional licensing under section 56 of the Housing Act 2004 and is not licensed;
(h)the accommodation is or forms part of residential property which does not have a valid energy performance certificate as required by the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007(5);
(i)the accommodation is or forms part of relevant premises which do not have a current gas safety record in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(6); or
(j)the landlord has not provided to the local housing authority a written tenancy agreement, which the landlord proposes to use for the purposes of a private rented sector offer, and which the local housing authority considers to be adequate.
Signed by the authority of the Secretary of State for Communities and Local Government
Minister of State
Department for Communities and Local Government