Carmel Ferguson, solicitor with Housing Rights Service looks in more detail at the forthcoming changes to the system for challenging homelessness decisions
A new system for challenging homelessness decisions comes into effect on 1 December 2010, following the commencement of section 5 of the Housing (Amendment) Act (Northern Ireland) 2010. In the most significant change to the homelessness legislation for several years the means for challenging a decision on homelessness will move away from an internal two-staged appeal system, operated by the Housing Executive, to an independent statutory appeals system in the county court.
Background to homelessness in Northern Ireland
In Northern Ireland, the Housing Executive has statutory responsibility for accepting and assessing homeless applications, making homelessness decisions and, until 1 December 2010, determining the outcome of appeals against homeless decisions. The main piece of homelessness legislation is the Housing (NI) Order 1988 which sets out the various ‘tests’ or ‘hurdles’ which a homeless person must pass in order to be considered as a Full Duty Applicant (FDA) and be owed a range of statutory duties including temporary accommodation, furniture storage, emergency grants and an allocation of housing.
In determining whether an applicant has FDA status, the Housing Executive must consider the following four hurdles:
- Homelessness/Threatened with homelessness - Under Article 3 of the 1988 Order a person can be regarded as homeless if they are actually homeless, threatened with homelessness; or deemed homeless because of their living conditions.
- Eligibility for assistance - Article 7A of the 1988 Order sets out that certain persons from abroad e.g. subject to immigration control and persons guilty of unacceptable behaviour will be ineligible for assistance. The word ‘guilty’ in this sense does not mean that the person has been convicted of an offence.
- Priority Need – According to Article 5 of the 1988 Order an applicant will be in priority need if they are pregnant; have dependent children residing with them; are vulnerable; are threatened with homelessness because of a flood, fire or other disaster; there is a risk of violence; or they are a young person at risk of sexual or financial exploitation.
- Intentionality – The intentionality test in Article 6 of the 1988 Order is intended to investigate the reasons why a person has become homeless.
Reviewing a homeless decision
From 1 December 2010, the first step in challenging a homeless decision will be to request that the Housing Executive carry out a review in accordance with the new Articles 11A and 11B of the 1988 Order. An applicant who is dissatisfied with their homeless decision will have the statutory right to request a review if the decision relates to:
- The applicant’s eligibility for assistance;
- The duty owed to the applicant under Articles 10 and 11 of the 1988 Order. In order to determine if the decision regarding the duty owed under Articles 10 or 11 is correct it is essential to examine the Housing Executive’s decision on the applicant’s homelessness, priority need and intentionality. It is the assessment of the client under these tests which determine what duty, if any, is owed to the applicant. The duty referred to in Articles 10 and 11 include the provision of accommodation and advice and assistance.
- The suitability of accommodation offered to the applicant by the Housing Executive in discharge of its duty under Articles 10 or 11.
Under Article 11A (3) a review can be requested within 28 days of notification of the homeless decision; unless the time is extended by the Housing Executive. Regulations should clarify the circumstances under which the Housing Executive can extend this time limit.
Furthermore, regulations are to be made regarding:
- Who will carry out the review, i.e. someone of appropriate seniority and who was not involved in the original decision;
- When an applicant can have an oral hearing and questions regarding representation at such a hearing;
- Time limits for carrying out a review and for making a review decision.
Article 11B (4) goes on to say that where the review decision is against the interests of the applicant the Housing Executive shall notify the applicant of the reasons for their decision. The applicant will also be informed of their right to appeal to the county court on a point of law, (Article 11B (5)).
Appealing to the county court
Where the applicant is dissatisfied with the review decision or has not been notified of the decision within the prescribed time period then they may appeal to the county court on a point of law arising either from the review decision or the original decision, (Article 11C(1)). Upon appeal, the court may decide to confirm, quash or vary the decision, (Article 11C (4)).
The time limit for lodging an appeal is 28 days from notification of the review decision or of the date on which notification should have been given. An appeal can be brought outside that time limit only if the court is satisfied that there is a good reason for doing so.
Under Article 11C (5) the applicant may be able to get temporary accommodation pending the outcome of the appeal; if the Housing Executive was under a duty to secure accommodation for the applicant under Articles 8(1) or 10(3) of the 1988 Order, i.e. duty to provide temporary accommodation where the applicant may be homeless and in priority need or where there is a priority need but became homeless intentionally.
Where the applicant is dissatisfied with how the Housing Executive exercises its power under Article 11C(5) they may take a second appeal to the county court against that decision, (Article 11D(2)). In this instance, the court may confirm or quash the decision, (Article 11D (4)).
Housing Rights Service has devised a new training course, outlining the changes in the system for appealing homeless decisions, which will teach particpants the skills to prepare a first stage review for client and liaise with legal advisors on preparing a second stage appeal at County Court. Find out more about the course here. |
