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Suitability of homeless accommodation for migrants

Posted on 06/06/22 in Housing Matters

Suitability of homeless accommodation for migrants

Changes to the rules on suitability of accommodation for people who apply as homeless within two years of arriving in the UK.

New rules for new arrivals

From 1 June 2022 lower suitability requirements for homeless accommodation apply to people who make a homeless application within two years of their arrival in the UK.

Local authorities are not automatically required to consider the effect of the location of the accommodation on the applicant. The usual rule limiting use of bed and breakfast to six weeks for people with family commitments also does not apply.

The new rules are likely to affect people who have fled war in Ukraine and Afghanistan and have resettled in the UK.

The changes are time limited and expire on 1 June 2023.

This article covers the changes to the regulations and other factors local authorities need to consider.

Local authority duties to provide accommodation

When someone applies as homeless, the local authority has a duty to secure accommodation for them if there is a reason to believe they might be:

  • homeless
  • eligible based on immigration and residence status
  • in priority need

The local authority might have a long term accommodation duty if the person is not homeless intentionally.

Suitability: the existing rules

Any accommodation provided under a homeless application must be suitable.

This includes interim accommodation secured while the local authority carries out inquiries, as well as temporary and final offers of accommodation if the authority owes the person the main housing duty.

Factors the local authority should consider include physical condition and whether it is affordable to the applicant. There are also specific considerations relating to:

  • location
  • use of bed and breakfast

Location

Emergency or temporary accommodation might be outside the local authority area, and sometimes far away from the applicant’s family and friends. The local authority must consider the distance from its own area when deciding if an out of area offer is suitable.

The local authority must also consider:

  • disruption to employment, education or support networks
  • access to health facilities
  • access to local services and transport

Bed and breakfast

If the applicant has children or someone in the household is pregnant, bed and breakfast should only be used:

  • if no other accommodation is available
  • for a maximum of six weeks

Bed and breakfast accommodation is defined as accommodation which is not separate self-contained premises and where a toilet, personal washing facilities or cooking facilities are shared between more than one household.

It does not include accommodation owned or managed by a local authority, a social landlord, or a voluntary organisation.

Changes to the rules on location and bed and breakfast

The Homelessness (Suitability of Accommodation)(Amendment)(England) Order 2022 SI 2022 No 521 amends the Suitability Regulations 2003 and 2012, which relate to use of bed and breakfast and location.

The changes apply to a person who:

  • makes a homeless application on or after 1 June 2022
  • applies within two years of the date when they arrived in the UK.

The order removes the six week limit on use of bed and breakfast for people with children or where someone in the household is pregnant.

It also removes the requirement to consider the location of the accommodation, including distance from the area and disruption to work, education or caring responsibilities.

It inserts a new requirement that when assessing suitability of accommodation which is outside its own area, the authority must consider possible disruption to any caring responsibilities of the applicant or their household for someone with whom there are family associations. For example, an elderly parent who lives separately in the authority’s area.

Exception for people resuming previous residence

The changes do not apply to someone who has a right to occupy accommodation in the UK for an uninterrupted period of six months or more in the three years before they most recently arrived here. This benefits British Citizens and others who can show they have returned to the UK after a period of previous residence.

Impact of changes

The changes affect people who have been resettled in the UK and acquired status in a relatively short period of time. This is likely to include people who have fled war in Ukraine and Afghanistan and who have been granted leave through a resettlement scheme.

The result is that refugees and other people who have not been in the UK for two years might be placed in bed and breakfast for a longer period regardless of their family situation. They might be offered accommodation anywhere in the country, even if they have close family ties or receive support from someone in the area.

Change to the definition of bed and breakfast

From 1 June 2022 the definition of bed and breakfast does not include accommodation provided in a private dwelling.

This would allow a local authority to secure accommodation for a person under a homelessness duty in someone’s private home. The accommodation would not be subject to the restrictions on use of bed and breakfast.

This amendment is not time limited. It applies to all homeless applicants.

Factors for local authorities to consider

Applicants with children or where someone in the household is pregnant should still only be placed in bed and breakfast if no other suitable accommodation is available.

A local authority can still take the approach of limiting time in bed and breakfast for people with family commitments, even where the law allows them to do otherwise. The longer a family is in bed and breakfast, the more likely it is that the accommodation will become unsuitable. The rules on suitability set minimum standards for local authorities to follow.

Bed and breakfast might be unsuitable for a range of reasons. For example, if the applicant has a disability and the size, layout or condition of the accommodation makes it unsuitable. If there are inadequate cooking facilities, the accommodation might be unaffordable.

People should only be accommodated out of area where no other suitable accommodation is available. In Nzolameso v Westminster [2015] the Supreme Court recommended that local authorities should have a policy for allocating accommodation to homeless households. That policy should explain what factors the local authority considers when deciding to accommodate a household close to the authority’s area or further away.

Section 11 of the Children Act 2004 requires local authorities have regard for need to safeguard and promote the welfare of children in the applicant's household when making its decisions. In the case of an out of area placement, this could include demonstrating how the local authority has evaluated the likely impact on the child’s education. When accommodating families in bed and breakfast, the authority should consider the impact on children, for example if there is a lack of space to do homework or develop physical skills such as learning to walk.

Local authorities should consider how children who have experienced trauma as refugees might be affected by a move away from family and friends. The nature of the resettlement scheme might mean that someone has ties to a particular area. For example, where a family has come to the UK through the Ukraine Family Scheme and are compelled to move away from the family member who sponsored them.

How to challenge an unsuitable offer

A person can request an internal review of an offer of temporary or permanent accommodation made after the authority has accepted the main housing duty.

The applicant has 21 days to ask for a review from when the authority notifies them of its decision. In some cases, accommodation could become unsuitable after 21 days has passed, and challenges to the suitability of accommodation can still be raised with the authority. In Zaher v Westminster [2003], the County Court decided that authorities must consider any changes in circumstances that occur while they are carrying out their homelessness duties as a property may become unsuitable over time.

The applicant should usually accept the offer and request a review, as suitability reviews are often unsuccessful.

There is no right to an internal review of the suitability of interim accommodation provided by the local authority while carrying out inquiries. The applicant can challenge suitability by issuing a claim for judicial review.

Where a person is offered long term bed and breakfast or out of area accommodation, the local authority should be able to show that there are no other suitable options available. The applicant should ask the authority to provide evidence to explain and support their decision. The applicant can ask for copies of any relevant policies, for example on out of area placements.

Challenges to the suitability of accommodation are in scope for legal aid. This includes advice and assistance, and the reasonable costs of obtaining evidence, for example medical or survey reports.

Further resources

Legislation

Homelessness (Suitability of Accommodation) (Amendment) (England) Order 2022

Shelter Legal

Suitability of homeless accommodation

Location and suitability of accommodation for homeless applicants

Challenges to accommodation suitability

Procedure for internal reviews of homelessness decisions

Homeless application process

Department for Levelling Up, Housing and Communities

Homelessness code of guidance for local authorities

Housing Matters

Suitability of homelessness accommodation