No Surprises – Gatekeeping

Andrew Arden QC and Clare Cullen consider gatekeeping and the recent Crisis “mystery shopper” report.

 

Gatekeeping remains prevalent amongst many local authorities finds the Crisis report, Turned Away, The treatment of single homeless people by local authority homeless services in England, October 2014. It is unsurprising; anecdotally, reports of local authorities sending homeless applicants away without taking an application or providing interim accommodation are commonplace. Nevertheless, the report is still depressing to read.

 

Threshold

Local authorities are under a duty to make inquiries where they have “reason to believe” that a person “may be” homeless or threatened with homelessness (ss.183(1) and 184(1), Housing Act 1996) and to provide interim accommodation where they have “reason to believe” that a person “may be” homeless, eligible for assistance and in priority need (s.188(1), 1996 Act). For both these duties, it is universally accepted that the threshold is designedly low.

The report

The report sets out the experiences of “mystery shoppers” who presented as homeless to sixteen local authorities across the country. The participants presented as single applicants, i.e. without any dependent children conferring an automatic priority need, and were given characteristics intended to give rise to a potential priority need so as to meet the threshold for further inquiries to be made and interim accommodation. The characteristic included:

  • A person with learning difficulties and mental health issues who claimed to have been unlawfully evicted;
  • A person who claimed to have suffered domestic violence from their ex-partner or step-father, approaching a local authority outside of the area where they had previously resided and were attacked;
  • A person claiming to be a rough sleeper in his or her 30s;
  • A 19-year old who claimed to have been forced to leave the parental home because of overcrowding.

 

In all, there were 87 visits spread across the different authorities. In each case, the process was found to be confusing and participants often left without knowing whether or not a homeless application had in fact been made! The report says that one participant described the process as “Kafkaesque”. Only on eight out of 87 visits was there any mention of the opportunity to make a homeless application.
Gatekeeping was a particular problem in London: in 29 visits, participants were not assessed at all, and the process taken no further, either on the ground that they were not in priority need or that they had provided insufficient proof of identity or other paperwork. The first of these is entirely unsound: by s.183, Part 7 applies whenever an applicant applies whom the authority have reason to believe is homeless – priority need is not a pre-condition; not only is the applicant who is not in priority need entitled to appropriate advice and assistance – preceded by an assessment (see 1.192(4)) with information about the likelihood of accommodation being available in the area appropriate to the applicant’s assessed needs (with details about location and sources of accommodation) – see s.192(5)) but there is also a power to house notwithstanding the absence of priority need (se.192(3)) which, as a matter of law, the authority must consider exercising (even if most will rarely decide to do so)..

 

In only 37 out of the 87 national visits was assistance actually provided: in 27 visits, temporary accommodation was offered pending inquiries; in 20 visits, a priority need was accepted; and in 10 visits, assistance was afforded to help the participant to return to a previous address until temporary accommodation could be offered. In the majority of visits, however, participants received limited or no support.

 

It follows that in a majority of cases there was an unlawful failure properly to apply the1996 Act.

 

Approach of the courts

Gatekeeping is not new (see, for example, Audit Commission, Homelessness: Responding to the new agenda, 2003) and it has occasionally come to the attention of the courts.

 

In R (on the application of Colin Raw) v London Borough of Lambeth [2010] EWHC 507 (Admin), Mr Raw presented as homeless and the local authority offered him an opportunity to participate in a private rented deposit scheme rather than make or continue with his homeless application. Although permission for judicial review was refused on the basis that the claim was academic as the authority had accepted an application and subsequently a s.193(2) duty, Stadlen J at [77], pointed out that the benefits of the deposit scheme were:

“not equivalent to and may not be an adequate substitute for….the benefits to a Part VII applicant of the duty to provide interim accommodation under section 188.”

 

In R (Kelly, Mehari & JI) v Birmingham City Council [2009] EWHC 3240 (Admin), Hickinbottom J, at [40]-[41], found that the local authority’s practice and procedures meant that officers were failing to apply s.188 when considering whether to provide interim accommodation:

“The approach of the Council to their obligations under Section 188 at the very least lacks legal coherence and a proper consideration of the relevant Section 188 criteria. So far as the Council are concerned that failure had and, insofar as that practice continues, continues to have, the effect of avoiding their obligations under Section 188 of the 1996 Act.”

 

More recently, in R (on the application of IA) v City of Westminster Council [2013] EWHC 1273 (Admin Court), a case concerning a homeless applicant who had been subjected to mental and physical torture in Iran who presented to the authority with a letter from his GP detailing, amongst other matters, that he suffered from depression, panic attacks and insomnia but who was issued with a negative s.184 decision on the same day, avoiding the duty to provide interim accommodation, HHJ Anthony Thornton QC stated at [25] that:

“Where, as in this case, it appears that the applicant is depressed, alone, unable readily to cope with day-to-day living tasks, unemployed and possibly unemployable, has no settled links with England or the English way of life and has minimal support mechanisms at his disposal, the inquiries would be expected to extend to a detailed inquiry into the applicant’s way of life prior to his homelessness……it would have been impossible for any of these inquiries to be undertaken in this case during the initial screening interview.”

 

As these cases demonstrate, when the issue of gatekeeping comes before the courts, judges are not supportive of local authorities. There will, however, be many cases of gatekeeping which never reach the courts: more often than not, it can be assumed that applicants won’t have access to legal advice or know their rights, and gatekeeping practices can take place without any repercussions for the local authority. If a challenge is issued or threatened in respect of gatekeeping, an application is usually then accepted or interim accommodation provided by the local authority so that the claim becomes academic and is no longer pursued.

 

What is the solution?

As highlighted in Crisis’ report, in England, there is no compulsory and audited quality framework or inspection of housing options and homelessness services. This is in contrast to Scotland where the Scottish Regulator has responsibility for undertaking inspections of homelessness services. Whilst in April 2013, the Government introduced a new Gold Standard for homelessness support initiatives and, in 2011, the Local Government Ombudsman was critical of local authority gatekeeping practices, offering guidance in Homelessness: How councils can ensure justice for homeless people, Focus Report: learning lessons from complaint, these measures appear to have done little to address gatekeeping practices.

 

At present, therefore, it is left to organisations such as Crisis to highlight gatekeeping. Not only is this type of report likely to be costly and time-consuming, there are also potential risks: under s.214, 1996 Act, it is an offence knowingly or recklessly to make a statement which is false in a material particular with intent to induce an authority, in connection with the exercise of their functions under Pt 7, to believe that he is entitled to accommodation or assistance under Part 7. To avoid this, all local authorities were contacted prior to the visits and informed that they would take place and notified after the visits so as to remove the details of the “mystery shopper.”

 

It is perhaps only fair to acknowledge that the prevalence of gatekeeping is likely to be part of the much wider problem of lack of resources both in terms of staffing and available properties. If properties are not available or front line officers are inadequately trained or understaffed, gatekeeping will inevitably continue to take place. Whilst these underlying issues need to be addressed (see May 15 – the Home Stretch<https://laghousinglaw.com/2014/10/14/may-2015-the-home-stretch/>), there can be no excuse for these practices: however they want to dress it up, they comprise the refusal by authorities to do the job that Parliament has imposed on them – put like that, it is not merely a question of illegality but one of failing to recognise their own raison d’être: they are there to provide the services Parliament deems to be needed, for the people Parliament identifies, not for those they choose.

There may be an argument for greater regulation – as in Scotland and as recommended in the report – but it is, for those who admire local government – a very great shame if regulation is needed for authorities to be compelled to perform their functions (as opposed to how they perform them): no more than authorities themselves should homelessness officers have any part of it.

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2 Comments

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2 responses to “No Surprises – Gatekeeping

  1. Chris

    I have long argued that homelessness law should be arbitrated by the Independent Tribunals Service which gives much better access to a hearing. It could be used both for Homelessness Reviews and emergency hearings about failure to undertake s188 and s184 duties. The upper tribunals could also hear s204 appeals. The expertise would be developed by the Judges in Tribunals at a much better level of aggregation than the Appeals Courts and it would not take many successful appeals via this route to alter Local Authorities’ practices. Of course it would not hurt them financially but would give a much better access for homeless applicants.

  2. Ben

    Whilst I have no argument with the notion that gatekeeping is unlawful I would point out the position of local authorities particularly in inner London where numbers of applicants v. available temporary accommodation are way out of proportion and the real ‘under the counter’ views of government on the matter.

    I used to be the head of homelessness for a local authority in the West Country and had the pleasure of meeting with the government’s then man with the stick for this.

    He said to me once in an unguarded moment, “You know the name of the game Ben, get your homelessness figures down. We don’t care how you do it, just don’t get caught”. Bear in mind that this was the government’s own man telling me this.

    This two faced attitude is even enshrined in the Homelessness Code of Guidance where it says of the matter in paragraph 6.4:

    “Authorities must not avoid their obligations under Part 7 (especially the duty to make inquiries under s.184), but it is open to them to suggest alternative solutions in cases of potential homelessness where these would be appropriate and acceptable to the applicant.”

    It’s the second half there that gives you the nod and the wink.

    These days I am a trainer and consultant for local authorities and I often find that far from deliberate gatekeeping most frontline staff aren’t very clear on the difference, which is shrouded in ‘canteen-talk myth’ and confusion.

    When done deliberately Gatekeeping is aimed solely at satisfying the needs of politicians who want to make it look as though the homelessness situation is under control, lest the local authority be pilloried by the CLG and the press for being inefficient and irresponsible.

    It is my sincere wish that every council in the land stop gatekeeping and open a homelessness case every time it is appropriate, then let those figures be argued over at the Ballot box.

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