The publication of Statutory Instruments is not, if I’m absolutely honest, the sort of thing to which I pay much attention. However, this week The Homelessness (Suitability of Accommodation) (England) Order 2012 was published. It comes into effect early next month. And it is going to be of considerable significance.
Following the Localism Act local authorities are now allowed, for the first time, to discharge their homelessness duty into the private rented sector without the applicant’s consent. This change brought the Government under pressure to lay down some conditions regarding the nature of the accommodation that can be used for this purpose. And that’s what the SI does.
Given that it is about physical standards and standards of management the SI says nothing about what may turn out to be the main issue: the affordability of the rent. It does lay down some fairly clear cut conditions such as that a property not being suitable if it doesn’t have a current gas safety record, is an unlicensed HMO, or doesn’t have a valid energy performance certificate.
But the bulk of the conditions have a rather different feel to them:
3. For the purposes of a private rented sector offer under section 193(7F) of the Housing Act 1996, accommodation shall not be regarded as suitable where one or more of the following apply–
(a) the local housing authority are of the view that the accommodation is not in a reasonable physical condition;
(b) the local housing authority are of the view that any electrical equipment supplied with the accommodation does not meet the requirements of regulations 5 and 7 of the Electrical Equipment (Safety) Regulations 1994(a);
(c) the local housing authority are of the view that the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;
(d) the local housing authority are of the view that the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation;
(e) the local housing authority are of the view that the landlord is not a fit and proper person to act in the capacity of landlord, having considered if the person has:
- committed any offence involving fraud or other dishonesty, or violence or illegal drugs, or any offence listed in Schedule 3 to the Sexual Offences Act 2003(b) (offences attracting notification requirements);
(j) the landlord has not provided to the local housing authority a written tenancy agreement, which the landlord proposes to use for the purposes of a private rented sector offer, and which the local housing authority considers to be adequate.
I’m no lawyer, but it strikes me that all these conditions are rather subjective: the local authority are “of the view that” “considers to be adequate” “not in a reasonable physical condition”. This suggests that there is going to be ample scope for dispute over whether specific private landlords and specific properties are appropriate and acceptable for the purpose. And there is going to be huge scope for variation across authorities in the nature of the assistance that homeless households receive, although that isn’t really anything new.
There is every reason to think that homelessness and the demand for low-income rented housing is going to increase over the coming months as fiscal retrenchment and welfare reform start to be implemented in earnest. There isn’t a lot of social housing being built. It is inevitable that rehousing into private renting is going to be an important part of the picture. So how local authorities work with this SI is going to be crucial to the English housing system for the near future.