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National Homeless Advice Service

Overview of homelessness law and guidance

Information about the law and the statutory guidance on homelessness.



Legislation

The main legislative provisions on homelessness are contained in Part 7 of the Housing Act 1996 which came into force on 20 January 1997. The Homelessness Act 2002 amended the 1996 Act, mainly with effect from 31 July 2002. It introduced:

  • changes to appeals against the suitability of accommodation [1]
  • exclusion from eligibility for assistance of anyone refused housing benefit on immigration grounds [2]
  • provisions relating to allocations
  • the right to appeal against the refusal by the local authority to provide accommodation pending an appeal to the county court on the homelessness case [3]
  • cooperation between a local housing authority and a social services authority [4]
  • late appeals to the county court. [5]

Part 7 of the 1996 Act was further amended by the Localism Act 2011, with effect from 9 November 2012. [6] It introduced powers for local authorities to end their main housing duty towards homeless applicants by arranging an offer of suitable accommodation in the private rented sector.

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Regulations

The Secretary of State has the power to amend primary legislation (Acts of Parliament) by way of regulations. These are issued in the form of statutory instruments (SIs) and are referred to as secondary (or delegated) legislation. Examples of secondary legislation on homelessness are regulations relating to:

  • changes in the categories of people in priority need [7]
  • persons from abroad (defining people who are eligible for assistance or qualifying persons for allocations under Part 6 of the 1996 Act) [8]
  • affordability of accommodation (covering matters that a local authority must consider when deciding whether accommodation is suitable for a person) [9]
  • arrangements for dealing with disputes over local connection referrals. [10]

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Case law

Case law is built up from precedents. A precedent is a rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. Two facts are crucial in determining whether a precedent is binding or not:

  • the position in the court hierarchy of the court which decided the precedent in respect to the position of the court trying the case at hand
  • whether the facts of the case at hand come within in the scope of the principle of law established in previous decisions.

Binding precedents

In common law legal systems like that of England and Wales, lower courts are bound to follow precedents established in higher courts when deciding analogous cases. The rule of binding precedent relies on the legal principle of stare decisis which means ‘to stand by things decided’ and ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy. Unless they have been superseded by subsequent case law, decisions made under the Housing Act 1985 are still valid.

Persuasive precedents

A persuasive precedent is a decision related to the case at hand but which is not binding on the court. Such precedent may only guide the judge in making their decision in the case at hand. However the judge is not obliged to follow it.

Persuasive precedents include decisions by lower courts, peer or higher courts from other jurisdictions, made in other parallel systems (for example, tribunals, military courts, administrative courts), and in some exceptional circumstances, cases decided in other countries or by world judicial bodies. Especially in a case of first impression, courts often rely on persuasive precedents from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court.

In England and Wales, county court decisions are not binding on other courts and serious points of law need to be affirmed by the Court of Appeal before they can be relied on as authoritative. However county court decisions may be useful to refer to in court to illustrate how the matter at hand was decided in another county court. They may also be useful to quote in negotiating with local authorities.

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Code of Guidance

The Homelessness Code of Guidance for Local Authorities gives statutory guidance on how the 1996 Act should be interpreted and details what is expected from local authorities in terms of good practice (in the way in which homelessness applications are dealt with). The Code is not binding law but local authorities are required to have regard to it. [11]

Failure to have regard to the Code has in a number of cases been sufficient to lead the courts to quash a decision as unlawful. Advisers should therefore always check what the Code has to say on any particular issue and quote it to support a case. A local authority should be able to justify any departures from the Code and must also make sure that it refers to the most recent edition. [12]

The current Code of Guidance was issued by the Department for Communities and Local Government (DCLG) in July 2006.

On 8 November 2012, DCLG issued supplementary statutory guidance to explain the changes to homelessness legislation introduced by the Localism Act 2011 and by the Homelessness (Suitability of Accommodation) (England) Order 2012.

In November 2014, DCLG issued supplementary guidance on domestic abuse and homelessness. This provides specific guidance to local authorities where an applicant is experiencing any form of domestic abuse, including violence, controlling, coercive or threatening behaviour.

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[1] s.193 and s.202 Housing Act 1996, as amended by s.8 Homelessness Act 2002.

[2] s.161 and s.185 Housing Act 1996, as amended by paras 3 and 7, Sch.1 Homelessness Act 2002.

[3] s.204A of the Housing Act 1996 as inserted by s.11 Homelessness Act 2002.

[4] s.213A of the Housing Act 1996 as inserted by s.12 Homelessness Act 2002.

[5] s.204 Housing Act 1996, as amended by para 17, Sch.1 Homelessness Act 2002.

[6] The Localism Act 2011 (Commencement No. 2 and Transitional Provisions) (England) Order 2012 SI 2012/2599.

[7] Homelessness (Priority Need for Accommodation)(England) Order 2002 SI 2002/2051.

[8] Allocation of Housing and Homelessness (Amendment) Regulations 2004 SI 2004/1235.

[9] Homelessness (Suitability of Accommodation) Order 1996 SI 1996/3204.

[10] Homelessness (Decisions on Referrals) Order 1998 SI 1998/1578.

[11] s.182 Housing Act 1996; R v Tower Hamlets LBC ex p Mahmood [1993] Legal Action 12, QBD.

[12] R v Newham LBC ex p Bones (1992) 25 HLR 357, QBD; R v Newham LBC ex p Ugbo (1994) 26 HLR 263, QBD.