It’s a thin line between housing suitability and legal homelessness in the scope of Legal Aid

Homelessness and Housing Suitability are closely related concepts. Of course, homelessness in the common parlance means just that – a person without a home – but legal homelessness also includes those who have a home but one it is unreasonable for them to continue to occupy. Section 175(3) of the Housing Act 1996 states that “a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”. Homelessness is within scope for housing contracts with the Legal Aid Agency pursuant to Section 9(1)(a) and Paragraph 34 of Part 1 of Schedule 1 of the Legal Aid, Sentencing, and Punishment of Offenders (LASPO) Act 2012. Housing suitability is not included as within scope by that Act, but clearly if accommodation is manifestly unsuitable then we enter the territory of legal homelessness, and Arden QC, Bates and Vanhegan in “Homelessness and Allocations” note that the House of Lords “came close to eliding the two concepts” in the joined appeals of Birmingham City Council v Ali and Moran v Manchester City Council (Secretary of State for Communities and Local Government) 2009.

The question of at which point out-of-scope-suitability becomes in-scope-legal-homelessness is one which has been subject to much commentary, debate, and decisions in the courts, and it is too wide a topic for me to address here. I will confine myself to one particular aspect which arose with a new enquiry the other day, and which does not form part of the debate about manifest unsuitability and legal homelessness per se, but about a normal homelessness application (which we may be satisfied met the criteria for homelessness or legal homelessness and for which a council has accepted a duty to house or rehouse).

Paragraph 34 of Schedule 1 of LASPO 2012 describes as within scope:

(1)Civil legal services provided to an individual who is homeless, or threatened with homelessness, in relation to the provision of accommodation and assistance for the individual under—

(a)Part 6 of the Housing Act 1996 (allocation of housing accommodation);

(b)Part 7 of that Act (homelessness).

I shall consider the possible implications of the inclusion of Part VI as within scope in a later post, but for now I wish to address the inclusion of Part VII, and the implications of Sections 202 and 204 of the Housing Act 1996 (both sections of Part VII) on the line between suitability, homelessness, and matters in scope for Legal Aid contracts. Section 202(1)(f, g, h) permits a review of the suitability of accommodation offered by a Local Authority as a discharge of its various duties under Part VII (excluding the interim duty to house under Section 188), and Section 204 allows an appeal to the county court of a Section 202 review decision on a point of law.

What if the unsuitability of the accommodation provided under an accepted Part VII duty to house does not meet the threshold for legal homelessness? Clearly, no new head of action for homelessness can be pursued under Legal Aid, but it is also clear that we may we pursue a Section 202 review or Section 204 appeal under the original homelessness file. The deadline for requesting a Section 202 review is 21 days pursuant to Section 202(3) of the Act. Within the statutory window of time for requesting such a review (and subsequently a 204 appeal) the range of de facto suitability cases that may be funded under Legal Aid is therefore vastly expanded from the types of suitability cases that would ordinarily be in scope as cases of legal homelessness. The exact differences between these types of suitability cases (and the likelihood of success of any cases brought) is something I would like to discuss in a later post. For now, however, I would like to end with the point that suitability in a broad sense may be – where raised as a Section 202 review or within a Section 204 appeal – within scope for Legal Aid funding. To me, as somebody new to this line of work, this has been a fascinating discovery.


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