Shining a light on Intentional Homelessness

Intentional Homelessness

I notice from reading a variety of posts on Landlord Law Blog that the subject of Intentional Homelessness, or ‘IH’ as it is known in the trade, crops up occasionally.

A phrase unique to homelessness applications it seems that it has also permeated landlord world to a certain extent.

So I thought I would take the opportunity to shine a very small and flickering light on the subject, not just for landlords but also for a lot of people who work in homelessness units who occasionally short-cut the concept themselves.

Legal definition

As you would expect, IH has a legal definition:- Section 191 Housing Act 1996

“(1 ) A person becomes homeless intentionally if 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.

(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.”

In homelessness units, you often hear the cries of:-

“Rent arrears? IH”!….”Mortgage arrears? IH”!……”Gave up the tenancy? IH”!

and so on but this is a massive oversimplification of a complex nexus of circumstances and why people in my line of work genuinely can’t comment when a person says “I had a mate once and….…..” because all circumstances are varied and IH decisions are dependant on lots of minute legal details.

Deliberate or in good faith?

First up is the concept of whether the act or failure to act was deliberate or in good faith.

In Regina v. Wandsworth LBC ex parte Hawthorne [1994] Ms Hawthorne’s husband left her in a position where she had to choose between feeding her child and paying the rent. Following eviction, for rent arrears, the council decided she was IH because she had deliberately chosen not to pay her rent.

The court said that a considered decision not to pay did not address the reasons for the decision having to be made.  The true question being:-

“What caused the decision”?

So straight away we see that rent arrears aren’t automatically a cause for an IH decision.  It depends on the background story.

Some case law on Deliberate v. Good faith

In R v LB Hammersmith & Fulham ex parte Lusi [1991] Mr Lusi gave up his accommodation to start a business in Turkey that failed, the judge deciding that Mr Lusi had acted in good faith in giving up his accommodation in London.

The authority should have distinguished between “honest blundering” on the one hand and dishonesty on the other.

But then there is F v. Birmingham CC [2006]. F was 18 with a small baby. She moved into a council flat but after 2 months gave it up and moved into more expensive and larger private rented accommodation, which she could not afford.

She argued that she had been told and had believed that housing benefit would cover the full rent.

The judge held “(The applicant) thus at best proceeded on a wing and a prayer, adding:-

“Wilful ignorance, or shutting one’s eyes to the obvious, could not amount to acting in good faith”

What about the exceptions?

And what about when the deliberate act or failure is down to someone else, not the homelessness applicant?

In R v. Northamptonshire DC ex parte Spruce [1988] the husband frittered away the rent money and Mrs Spruce was found IH but the courts reversed the decision saying the evidence suggested she was not a party to her husband’s actions and was therefore not IH.

But in Regina v L.B. Tower Hamlets ex parte Khatun (Asma) [1993] where Mr Khatun decided to move to a property that was unsustainable and his wife went along with it judge Gibson said:-

”If a wife was content in a marriage to leave decisions to her husband, then she may properly be treated as having ‘Joined’ in the decision”.

There is no clear line

As you can see it’s not a simple test, even on this single element of a deliberate act or failure to act and who was responsible.

On top of this, we also have to consider paragraph 11.17 of the Homelessness Code of Guidance which states:-

“Generally, an act or omission should not be considered deliberate where:-

• The act or omission was non-payment of rent which was the result of housing benefit delays, or financial difficulties which were beyond the applicant’s control;
• The housing authority has reason to believe the applicant is incapable of managing his or her affairs, for example, by reason of age, mental illness or disability;
• The act or omission was the result of limited mental capacity; or a temporary aberration or aberrations caused by mental illness, frailty, or an assessed substance abuse problem;
• The act or omission was made when the applicant was under duress;
• Imprudence or lack of foresight on the part of an applicant led to homelessness but the act or omission was in good faith.”

As you can see, the knee-jerk reaction to rent or mortgage arrears or even giving up accommodation is not as black and white as many, including homelessness officers sometimes think.

There are several circumstances which dig a homelessness applicant out of the clarts, in fact, you could say that there are more reasons for positive decisions than negative ones.

Speaking from hands-on experience, as a trainer of homelessness case-workers and conducting the odd homelessness review now and then I see that very often IH decisions are made without really digging into the topic very deeply.

Reasonableness

The full IH test also requires the council to examine whether or not the property was available and reasonable to occupy at the time it was lost.

A key case relating to risk of domestic violence is Bond v. Leicester [2002] that every homelessness officer should know inside out.  Here the court made the point that it would not be reasonable to remain in a property where it was probable that continued occupation would result in further violence.  Although bear in mind the test isn’t whether further violence is ‘Likely’ but whether it would be ‘Probable’.

Once again its all in the words.

It is not black and white

Cases on IH are many and numerous, with some really interesting and complex back-stories and some very subtle, yet incisive distinctions made by the higher courts. It is a truly big subject which I have merely given a flavour of here.

A person losing their home because of rent arrears might well be IH but it just as easily might not be.

Same when a person gives up accommodation. IH is a highly probable decision but there could also be innumerable reasons why it wouldn’t be, especially when it comes to examining whether or not it would have been reasonable to remain.