Homelessness and supported housing

For the first time ever, the Act introduces a statutory framework for supported housing. Supported accommodation is defined by the Act and only those schemes that fall within the definition will be classed as supported accommodation for the purposes of the Act. It is important that landlords familiarise themselves with the new terminology and applies the definition to all schemes currently designated supported accommodation in order to ascertain what contracts will be required on implementation and beyond.

If a scheme is properly within the definition of “supported accommodation”, that affects the type of occupation agreement which may be used (in effect, the landlord has more options open to it to select the right level of security of tenure depending on the scheme). If the landlord uses a supported standard contract, then the terms of the contract may be slightly different, and the Act provides an ability to move the contract holder to a different flat or room within the building and it provides an option to temporarily exclude the contract holder for up to 48 hours.

What is Supported Housing?

S143 defines supported accommodation as follows:

“Supported Accommodation” is accommodation which:

• Is provided by a community landlord or registered charity
• The landlord or charity (or someone acting on their behalf) provides support services to a person entitled to occupy the accommodation, and
• There is a connection between the provision of the accommodation and the provision of support services.

N.B. Care institutions (eg hospitals, care homes and children’s homes) are excluded.

“Support Services” include:

• Support in controlling or overcoming addiction
• Support in finding employment or alternative accommodation
• Supporting someone who finds it difficult to live independently because of age, illness, disability or any other reason.

“Support” includes advice, training, guidance and counselling.

A “Supported Standard Contract” is a standard contract which relates to supported accommodation.

Importantly, we are not looking at floating support provided via general needs accommodation. There needs to be a specialist scheme, and a connection between this accommodation and the specific support to be provided.

Is it an occupation contract?

If it is indeed “supported accommodation”, then the landlord has three options:

Option 1

For an initial period at the outset (six months but subject to extension) it may not be an occupation contract at all (at the landlord’s option).

Option 2

It may be a “supported standard contract” (either from the outset if the landlord so chooses, or at the point the initial period ends although the landlord needs to be aware of the need to serve a notice of standard contract – RHW1).

Option 3

The landlord may anyway opt to give the contract holder a secure contract, if it is intended that the property is a permanent home even though the accommodation is supported accommodation (although the mobility and temporary exclusion provisions will not apply).

Of course for supported housing on conversion, if the occupier has been in occupation for more than six months the first option is not available.

What are the implications of each?

If the landlord chooses that it should not be an occupation contract at the outset it may instead give a licence or a common law tenancy. The Renting Homes (Wales) Act 2016 will not apply to it. The law remains as it is now for licensees and those whose tenancy is not protected by the Housing Acts 1985 or 88.

In a nutshell that means the right to occupy may be protected by The Protection From Eviction Act 1977 (unless the property is a hostel, or the property is provided to the occupier on the basis of the interim duty owed to homelessness applicants).

If the 1977 Act applies then 28 days’ notice and a court order is required to evict. If not, the licensor or landlord need only give reasonable notice. Some limited protection may also be provided by the Human Rights Act and Equality Act to the extent that they apply.

If the agreement is an occupation contract, then termination will be in accordance with the Act. If the contract is a standard one, 2 months’ notice will need to be given using prescribed form RHW17 and a court order will need to be obtained in the event the occupier does not vacate when the notice expires. A secure contract can only be brought to an end if the occupier is in breach of a term of the contract or on one of the estate management grounds (see further below).

As such, the effect of the 2016 Act not applying is that there is a greater degree of flexibility around terminating the contract than if the Act applies, although if the 1977 Act applies there is still the considerable protection of the requirement to obtain a court order.

Once it becomes an occupation contract other obligations apply such as the requirement to serve a written statement of terms and so it is crucial to know (and to ensure your systems are able to flag) when the occupier will become an occupation contract holder.

What is the “Relevant period” during which the licence or tenancy may not be an occupation contract?

Para 13 of Schedule 2 confirms that a tenancy or licence which relates to supported accommodation is not an occupation contract “if the landlord intends that the accommodation provided… is not to be subject to an occupation contract”.

• So it won’t be an occupation contract unless the landlord serves notice on the tenant that it is.
• This will last for a period of six months from when the occupant was first entitled to occupy the dwelling (subject to extension – see below) (this is referred to as the “relevant period” in the Act).
• If there is/are previous contract(s) of the same dwelling (or a dwelling in the same building), the time begins to run from the first contract (if the current contract immediately followed the previous one).

Hence in the short term, during the first 6 months of occupation it will not be an occupation contract if the landlord does not want it to be. After 6 months, subject to any extension, it will become an occupation contract which will be a standard contract (schedule 3, paragraph 2) unless the landlord opts to use a secure contract if it so wishes.

The Act provides for a specific type of standard contract for supported housing – a supported accommodation standard contract. That contract includes as a fundamental term the right to temporarily exclude the contract holder for up to 48 hours and the Act allows the landlord to include a clause that permits the landlord to move the contract holder to another room in the building.

Whatever the occupier is given at the outset will automatically convert – and so to ensure the written statement given at conversion is complete and correct it is best to ensure the licence or tenancy is ready to be converted.

Extending periods before the contract becomes an Occupation Contract

The landlord may extend the period before which the contract becomes an occupation contract for a period of up to three months. It is possible to extend on more than one occasion.

The landlord may do this on the basis of the conduct of the tenant or licensee, and of anyone who appears to the landlord to be living in the dwelling (whether or not they are there continuously and whatever capacity they are there in).

Constraints

The constraints are:

• The landlord must first consult with the tenant or licensee.
• And must get consent from the local authority (LA) (if Landlord is not itself an LA).
• And then serve not less than four weeks’ notice (expiring before the end of the relevant period – i.e. before the day on which it would otherwise become an occupation contract).
• The notice must set out that the decision has been taken to extend the relevant period, and give reasons. It must specify that the local housing authority has consented. It must also specify when the relevant period will now end.
• Lastly, the notice must advise the tenant/licensee of the right to a court review of the decision to extend.

There is no prescribed form for the notice but it must comply with requirements in schedule 2 of the Act.

So if the landlord wishes to do this, it must be ready to serve notice at the end of the fifth month, and that means having completed the consultation with the tenant or licensee and (if not a local authority) having obtained consent.

There was a consultation on a non-statutory guidance on obtaining the local authority consent in 2017; a summary of the responses and comments was published in 2018. As yet the final non statutory guidance has not been issued. Hence the following is taken from the consultation exercise and the comments may be subject to change.

Guidance

The guidance provided that:

• Generally, extending the relevant period may be appropriate if the tenant or licensee has behaved in a way which indicates that he or she would not be able to maintain an occupation contract successfully – for example if there is repeated Anti Social Behaviour (or prohibited conduct). It is for the landlord to determine whether the “conduct” fits this criteria. Reasons may also include non-payment of rent, but not lack of or delays with move on accommodation.
• In most instances it is expected that the tenancy or licence will convert automatically.
• Consideration of the possibility of extensions should be built into regular assessments of the tenant/licensee and they should be advised orally and in writing (so being consulted about a notice to extend should not come as a surprise).
• Proof of the discussions which have been had and engagement with the tenant/licensee should be provided to the local authority when seeking consent, as well as evidence of action taken to address the conduct.
• The landlord should apply to the local authority at least six weeks before the period is due to expire so that they have two weeks to consider (it is up to the local authority to determine whether to deal with an application where they have been given less than two weeks, on the basis of exceptional circumstances).
• The local authority must act reasonably, considering each application on own merits and having regard for the tenant’s/licensee’s personal circumstances.
• It is for the local authority to determine the level of seniority of the officer who can determine the application. There should however be a separation of the roles of the person who placed the individual into the accommodation and the person who decision on the extension.

The guidance also indicated an expectation that during the extended period, the landlord should work with the tenant or licensee to address the conduct (and if further extensions are sought it is expected that needs to be included in the information provided to the local authority).

If the landlord is a local authority, then our suggestion would be that the guidance is a useful place to start when deciding how to approach making a decision to serve notice to extend. Time is tight for the first extension and even tighter for second and subsequent extensions, particularly where the landlord is not an LA and so needs to seek consent.

Lastly, the guidance provided for equality data to be recorded and periodically reviewed, with an annual statistical return submitted to the Local Housing Authority so that local authorities can monitor the number of extensions and reasons, as well as equality information.

The Act also provides for the tenant or licensee to be able to challenge the decision to serve the notice (or if the landlord is not a local authority, the decision to give consent) to the County Court. There are 14 days to make the challenge (unless the court gives permission for a late challenge). Judicial review principles apply to any challenge made. There is no equivalent challenge for a landlord.

The Right to temporarily exclude

This right is applied to all supported standard contracts as a fundamental term (although it is a fundamental term which can be modified in favour of the contract holder so it could be removed). It does not apply to a secure contract if the landlord chooses to use secure rather than standard contracts. (Neither does it apply if the tenancy or licence is not an occupation contract at all).

The right enables a landlord to exclude the contract holder for a period up to 48 hours. This is done by issuing a direction to leave and not return for a specified period. As such, one can imagine some very practical reasons why it may not work without police support. The landlord can designate someone entitled to exercise the power on their behalf (eg an agent or support worker).

The right can be used if the landlord reasonably believes that contract holder has:

• used violence against any person in the dwelling.
• done something in the dwelling to create a risk of significant harm to any person.
• behaved in the dwelling in a way which seriously impedes the ability of another resident of supported accommodation provided by landlord to benefit from the support provided in connection with the accommodation.

The exclusion would relate to the common parts as well as the dwelling itself.

The landlord must give the contract holder written notice setting out reasons when requiring them to leave, or as soon as reasonably practicable afterwards. A prescribed form must be used (RHW15).

The right cannot be exercised more than three times in any period of six months. It can only be exercised on the basis of actions/behaviour in the dwelling.

The Welsh Government has issued guidance which covers the seniority of the person making the decision, the need to carry out a review of all temporary exclusions, and the steps the landlord needs to take to mitigate the potential for the excluded person to become street homeless.

Landlords will need a policy in place which covers the exercise of this power. The policy must cover the steps landlords will take to avoid the use of the exclusion power, and the arrangements put in place to avoid street homelessness – it is inevitable that will involve conversations with partner organisations whilst formulating the policy so that the mechanisms are ready for when an urgent situation occurs.

Use of the power

The guidance confirms that the power is not intended to be punitive – it is there as a measure to ensure the safety of residents and staff or prevent eviction, and to allow a contract holder time to reflect on their behaviour. Landlords need to be mindful of the likely vulnerability of the contract holder and risks to their health, safety and wellbeing.

The Decisionmaker

The decision must be made by a manager or someone suitably senior with responsibility for operational management of the accommodation. The policy needs to specify the job/grade which should be held by the decision maker. Remember that an independent and more senior member of staff needs to be available for the review process and so not involved at this stage.

If the decision maker is not on site when the decision needs to be taken, they must be available on call.

The decision maker must record the exclusion and the reason in the contract holder’s Support Plan and file an incident log at the time of the exclusion (this is then needed for the lessons learned review).

Preventing Homelessness

Before using the temporary exclusion power, the landlord must first consider whether a mobility clause can be used to move the contract holder within the accommodation rather than excluding them altogether. Whether or not this is possible will depend on whether the other residents are likely to be adversely affected by the contract holder being so moved.

Landlords need to develop reciprocal arrangements on a regional basis with each other in order to accommodate each other’s excluded contract holders to avoid street homelessness. These should be negotiated in advance and recorded in the landlord’s policy.

If a need to exclude arises, it will also be necessary for the contract holder to be able to access the homelessness advice service and to this end, it will be necessary to have good referral systems ready to be actioned – so there need to be named contacts within the homelessness advice service, and the service will need to be alerted when an exclusion takes place. Written information should be ready to be provided to the individual. The landlord also needs to alert social workers, support workers, next of kin and probation officers where appropriate if an exclusion has happened.

Lastly, landlords need to develop relationships with local hostels and similar organisations so that their services can be called on in an urgent situation.

All efforts made to avoid street homelessness will need to be provided in the Support Plan and Incident log.

Lastly, when the contract or occupation commences, the possibility of an exclusion should be part of the risk assessment and if there is a risk of exclusion then the identification of an appropriate safe place or places for the contract holder to go to should be part of that assessment.

Lessons Learned Review

The final part of the process is for the landlord to carry out a lessons learned review to consider the decision, to ensure it was appropriate and procedurally correct, inform future practice and identify any improvements which can be made to the policy. It is not an appeal and it is not the purpose of the review to remove the exclusion from the contract holder’s record.

The review must be carried out within 14 days of exclusion and it should be done with input from the excluded party. It should be done face to face, with the contract holder being given a week’s notice of the date of it. The contract holder should be signposted to relevant advocacy services.

The landlord’s policy should identify who will be on the panel although membership is not prescribed. It should include:

• someone senior to the person who took the decision, who has authority to change policy and was not involved in the decision.
• another independent person who was not involved.
• a representative from the LA where possible.

There is a standard form to be completed (annexed to guidance).

The guidance provides a whole list of issues for the panel to consider, in order to identify what lessons can be learned. The form must then be held for at least 12 months, a copy should be sent to the local authority’s supporting people team and the Homelessness Advice Team.

Lastly a quarterly statistical return should be submitted to the LA detailing the number of exclusions and reasons so that they can monitor trends and take appropriate action. The format is not prescribed and it is for the landlord to agree with the LA.

Q We work with a private landlord to supply supported housing. What sort of contracts can we use?

> If the private landlord is the individual’s landlord (i.e., they own the property and let it direct to the individual), then it can only be “supported accommodation” for the purposes of the Act if the private landlord is a charity. For these purposes, a charity is in the same position as a community landlord. (I.e. they can use the initial 6-month period before the occupation falls within the Act, and they can use a “supported standard contract”).

If the private landlord is not a charity, a supported standard contract cannot be used (and neither can a “non RH licence”) but a normal standard contract can.

The principal differences between a supported and any other standard contract are:

1. the periods of notice to end (two months at any time rather than six months and not within the first six months);
2. the ability to add a mobility clause meaning the landlord can require the contract holder to move rooms; and
3. the temporary exclusion right applies.

Q Can a licence be extended for any other reasons besides conduct?

> No, a licence which is such because it is of supported housing may only be extended on grounds of conduct, but “conduct” may have a wide meaning. The non-statutory guidance which was published for consultation some years ago indicates that it is conduct which makes them unsuitable to be a tenant and may even include non-payment of rent. What it will not include is delays in finding move-on accommodation. (Although we understand that the WG do not intend to issue this guidance in final form it is useful guidance about what could go into your policy).

Q Our understanding is someone residing in temporary accommodation (TA) with a S75 duty will be entitled to a standard contract until the duty is discharged.

What happens if someone is residing in TA beyond 12 months, would they then be entitled to a secure contract in that accommodation?

> In any accommodation owned or leased by a local authority and used for TA, an occupation contract will arise at the point the LA accepts the section 75 duty. It can be a standard one provided a s13 notice is served. It will remain standard for its lifespan unless the LA discharges duty into the accommodation in which case it ought to then grant a secure contract.

If the applicant is housed in TA owned by an RSL or any other landlord an occupation contract will not arise until 12 months after the homeless applicant is notified of the outcome of their application. HOWEVER, just before implementation was delayed, WG announced that a 12-month period of grace would apply so that no homelessness TA provided by non-LA landlord would be subject to the Act AT ALL for a period of 12 months post implementation (i.e. until July 2023). It seems likely that will be honoured so that non-LA TA will be exempt until at least July 2023 but what is not clear whether that has now moved back to December 2023.