Housing Training

Housing Training Presented by Shah Begum and Muzammel HusseinSolicitors at Legal Advice Centre (University House)

HOUSING ADVICE – RELATIONSHIP BREAKDOWN /DV • Today’s course aims are: • To provide an overview of the client’s housing options when their relationship breaks down due to domestic violence. • Today’s learning objectives are to: • Identify the information required when giving housing advice in relationship breakdown/DV situations. • Identify and explore housing options with clients facing relationship breakdown/DV. • Explain the existing housing rights of married/civil partners and cohabitees. • Give an overview of possible long term options to remain in the relationship home. • Explain the domestic violence immigration rule. • When legal aid is available in family law cases.

ESSENTIAL QUESTIONS • Relationship: • Is the client: • Heterosexual, lesbian, gay, a relative or member of the same household? • Legally married or in a civil partnership, co-habiting, engaged or divorced? • Still together, living separately, have any legal proceedings started? • Housing situation: • Is client an owner occupier or tenant? • Is client’s partner or ex-partner an owner occupier or tenant? • Is there accommodation of the relationship (i.e. that they are living in together or intended to live in together)? • Is client a joint owner/tenant or is their home in one name only? • Do they have any urgent housing needs e.g somewhere to stay tonight?

Children: • Are there any children, and if so, how many and what age are they? • Is the client biologically related to any children she or he is caring for? Is her/his partner? • Are the partners the legal guardians of any children? • Is there any agreement or court order concerning with whom the children live? • Finance: • Who pays the rent/ mortgage? • Are there any arrears? • What is the client’s financial position? • Is the client financially eligible for legal aid?

Violence or abuse: • Has client experienced any violence or threats? • Are there urgent issues which need addressing e.g. an application for a non-molestation order? • Immigration status: • What is the client’s immigration status? • What is the immigration status of their partner and any children they have? • What does the client want? • To stay in the home • To leave temporarily • To leave permanently

EMERGENCY ACCOMODATION Leaving home in an emergency If the DV survivor does not feel safe to stay in her own home and have nowhere safe to go to, she or he can: • approach any local council and ask to make a homelessness application, or • get a place in a refuge. Client will also need to consider their finances after they leave.

Refuges • Refuges provide temporary housing for people fleeing DV. The client won’t have to have left her partner permanently and don’t have to have children. • Can apply for a place in a refuge on their own, or the council, police, or a specialist organisation may be able to arrange a place for the survivor. • Refuge places are limited, and the survivor may have to go to another area. Some refuges are shared houses, while others offer self-contained apartments. • Client will usually have her own room, but if she has children she may have to share the room with them. Note that most refuges do not take in boys over the age of 12 – this may be a problem for mothers wanting to flee in an emergency and want to take their children with them. • Client will be liable for rent in a refuge but may be entitled to housing benefit (see slides on welfare benefits). • Refuge staff can give client advice about claiming benefits and finding a more permanent place to live. • There are very few refuges for men who have experienced domestic violence.

Homelessness (Part 7) Application Client can make a homeless application under Part 7 of the Housing Act 1996 - the council should consider the applicant to be homeless and may consider her to have a priority need for accommodation if she is not safe in her current home. Local authority should normally provide her with emergency housing while it makes further inquiries into the applicant’s situation, and may have a duty to rehouse her. Sometimes a council may give applicant the option of helping her to return to her former home, exclude her partner, and make her home safe. However, it cannot make the applicant do this if she is still at risk of violence there. Local authorities are under pressure from government to reduce the number of homeless applications and may refuse to take a homelessness application, refuse to provide emergency housing or try to make claimant go somewhere else.

Homelessness Code 2006 paragraph 2.3 says ‘Housing authorities are reminded that they must not avoid their obligations under Part 7 of the 1996 Act...but it is open to them to suggest alternative solutions in case of potential homelessness where these would be appropriate and acceptable to the applicant.’ LA may offer private rented accommodation instead of temporary housing – may need to consider whether this is reasonable if client is vulnerable following a family breakdown or domestic violence. Recent caselaw – R(Anon) v Southwark (Claim No CO/2035/2014 – settled by consent) This case in the High Court against Southwark Council has found that the council were unlawfully using extensive ‘gatekeeping’ practices (stopping people making homeless applications).

Five Different Stages of the Enquiry When someone makes an application, in determining the type of duty owed to a homeless applicant, a local authority has to consider: • Whether or not there is accommodation available to the applicant and members of her/his household. Section 175 • Whether the applicant is eligible for assistance under Part 7 of Housing Act 1996. Section 185 • Whether the applicant or any member of her/his household is in priority need. Section 189 • Whether or not the applicant is intentionally homeless. Section 191 • If the applicant is able to pass these tests then the authority can consider: • Whether the applicant and/or members of her/his household have a local connection or whether there is another authority it would be safe to refer them. Section 198/9

Whether or not accommodation is available (S175) Section 175 Housing Act 1996: “(1) no accommodation available for his occupation; or (2) he has accommodation but – (a) he cannot secure entry to it….; or; (3) it is accommodation which it would not be reasonable for him to continue to occupy.” • Is it reasonable for the Applicant to continue to occupy the accommodation? Section 177 (1A) Housing Act 1996: “It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence against him….” • What if the accommodation is a refuge? Case of Moran v Manchester City Council [2009] ‘Women will be homeless while in the refuge and remain homeless when they leave. A woman who losses her place there, even because of her own conduct, does not become homeless intentionally, because it would not have been reasonable for her to continue to occupy the refuge indefinitely.’ Note: important for the client to be accepted as homeless even if placed in a refuge (homeless applicants have priority need for permanent housing under the council’s allocation policy)

Homelessness Application – Eligibility (Section 185) • Eligibility for housing assistance from homeless persons unit (main categories): • British citizen • EU citizens exercising their Treaty Rights – workers, Jobseekers, students, self-employed or self-sufficient. (Family members of the EU national hold ‘mirror rights’ of the EU national). • Refugee status • Indefinite leave to remain • Grant of humanitarian protection; discretionary leave to remain • Spouse (where applied under DV concession) – see below 2. Non – eligible (no recourse to public funds): need to approach social services • Visitor, Student, Work permit Overstayers and those with illegal status need to first regularise their status by making an immigration application to the Home Office. Once pending decision, they can apply to Social Services for assistance.

Homelessness – Priority Need (Section 189) Section 189 Housing Act states that the following categories of applicant have a priority need for accommodation: • A pregnant woman or a person with whom she resides or might reasonably be expected to reside; • a person with whom dependent children reside or might reasonably be expected to reside; • a person who is ‘vulnerable’ as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside; • a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster. Regulations introduced in 2002 added further categories, the most relevant one is: • a person who is vulnerable as a result of ceasing to occupy accommodation because of violence from another person or threats of violence from another person, which are likely to be carried out.

Vulnerability If there are no dependent children, it will be necessary to show that an applicant is ‘vulnerable’ in some way in order to qualify as in priority need under the Act. The definition of vulnerability has been established through case law from the Supreme Court, in summary: • Vulnerability is a comparative concept • The correct comparator is not an ordinary homeless person but an ordinary person • The relevant test is whether the applicant would be ‘significantly more vulnerable if homeless than an ordinary person’.

Intentional Homelessness – Section 191 Section 191 Housing Act states: ‘A person will only be intentionally homeless if they: • Deliberately act or fail to act, and • That act or omission causes the loss of accommodation and • The accommodation was, before the act or omission, available to them, and • The accommodation is accommodation which it would have been reasonable for them to continue to occupy.’ Therefore, from the above, a victim of domestic violence is not Intentionally Homeless if it is not reasonable for her or him to continue to occupy the property.

Local Connection – Section 198 • Victims of DV can apply to any local authority. A local connection is not required. • A person suffering DV may not wish to apply as homeless in the borough in which she lives, as she may feel that she would remain at risk. Normally if an applicant applies to an authority with which she does not have local connection under s199 (1) (residence, employment, family associations, special circumstances), that authority can, after making enquiries, consider a referral to a borough with which the applicant is connected. • Section 198(2) and (2A) describes the conditions which must be satisfied before a referral may be made. A notifying authority may refer an applicant to whom s.193 applies to another housing authority if all of the following are met: i) neither the applicant nor any person who might reasonably be expected to live with her has a local connection with its district; and ii) at least one member of the applicant’s household has a local connection with the authority to be notified; and iii) none of them will be at risk of domestic or non-domestic violence, or threat of domestic or non-domestic violence which is likely to be carried out, in the district of the authority to be notified.

Key Points Relevant to Part 7 • Acceptance or refusal of a private rented sector offer (a fixed term assured shorthold of at least 12 months) will discharge the LA homeless duty; • There is, significantly, no requirement on a LA to use a private rented sector offer – it is simply an option alongside many others; • There will be a right to request a review of suitability (and a chance to view the accommodation); this right will arise whether or not the offer is accepted. • If duty is discharged by acceptance of a private rented sector offer and the tenant then becomes homeless again within 2 years, the homeless duty will revive provided that the household is still eligible and is not intentionally homeless (regardless of whether the applicant has a priority need).

Legal Remedies – Local Authority’s Refusal Where the application has given the LA reason to believe that she may be homeless, or threatened with homelessness in the next 28 days, but the LA has not responded by taking a homeless application, the remedy is to make an emergency ex parte Judicial Review application including a claim for: • An order requiring the Council to start investigating; and • An order requiring the Council to provide interim accommodation under Section 188; and • Damages for failure to provide interim accommodation, if appropriate.

PART 6 APPLICATIONS LA maintains the allocation scheme for settled social housing, either within its own stock or through a nomination to a housing association. Some claimants may choose to join the housing list whilst living in privately rented accommodation for many reasons i.e. homeless service may place then outside the local areas where they have no family support network, children being displaced from school due to distance from temporary accommodation, worries about fitting in a new area. Important to note that it may be difficult to find private landlords in TH who accept benefit claimants and also must check that the rent does not exceed the local housing allowance threshold (can be found online).

STAYING IN THEIR OWN HOME The survivor does not have to lose her home if she experiences domestic violence. The person may want to stay close to friends, family, a local job, or local services. She may probably also want to minimise upheaval, if they have children or want to remain in the relationship home. However, client should be advised to think carefully before making any decisions and should always put her and the children’s safety first. There are legal remedies to exclude a perpetrator of DV from the relationship home, and to make the home safer, but these cannot totally guarantee full safety. In case of violence, client may want to call the police, in the first instance, which would get the perpetrator away for a short time as police have a duty to make an arrest. This however will not provide long term security. Client will have to be mindful when changing door locks to exclude the perpetrator that she may be illegally evicting him if he has rights to live in the home. Client may be able to apply for an occupation order to regulate the short term occupancy of the house. If they are renting and she is a joint tenant, she could also consider giving notice and asking the landlord to give her sole tenancy.

Rights to stay in the home A person can only stay in the home if she has a legal right to do so. Their rights depend on: • The legal status of their relationship – there is difference between marriage and cohabitation. • whether she is a joint or sole tenant/owner; and/or • Whether she can enforce any rights she might have through the court.

Sole tenants/owners If only one person’s name is on the tenancy agreement or title deeds, only that person has the right to stay in the home, unless they have been excluded by an occupation order. If that person wants their ex-partner to stay in the home instead, they may be able to have the tenancy transferred or the title deeds and mortgage changed (known as a ‘voluntary arrangement’). ‘Home rights’ – Married couples/civil partners If the client is married or in a civil partnership with the sole tenant/ owner, she will have ‘home rights’, which give her similar rights as a joint tenant/owner and can help stop the person from selling the property without notice. ‘Home rights’ need to be registered with the Land registry office by completing an HR1 application. Where home rights exist, both partners will have rights to stay in the home unless one partner is excluded by an occupation order. Joint tenants/owners If client is a joint tenant or owner, both have equal rights to stay in the home unless one person has been excluded by an occupation border. An ‘occupation order’ can regulate the short term occupancy of the house and can be used to exclude the partner for a temporary period.

Application for Injunctions (Occupation Order and Non-Molestation Order) or other civil/criminal Injunctions are not covered at this session.

Non-owner cohabitees If client is cohabiting and is not the sole or joint tenant/ owner, they do not have ‘home rights’ and thus no legal rights to remain. However, non-owner cohabitees may still be able to stay in the relationship home, if they can prove a beneficial interest. This means they have made a contribution (usually financial) to the home. Two forms of land ownership • Legal ownership • Beneficial ownership How does beneficial ownership arise? • Cohabitation agreements • Contribution to purchase price • Intention to own jointly and act to detriment – important to remember that these cases are very difficult and expensive to run, usually with low success rate. How to claim the beneficial interest • Application to court under Trusts of Land and Appointment of Trustees Act 1996 • Application under the Children Act 1989

Legal Remedies – Long Term Options For long-term housing solution, an application can be made under: • Family Law Act 1996, schedule 7– Married partners/ civil partners/ cohabitees can apply to have the tenancy transferred to her or him from the other sole tenant or joint tenant. • Matrimonial Causes Act (1973) (for married partners) • Civil Partnership Act (2004) (for civil partners) Under these Acts, tenancy or ownership can be transferred as part of the divorce or dissolution proceedings. • Children Act (1989) (for those with parental responsibility, who don’t fit into the above categories) – Under this legislation, if it is in the interest of the child/children, it is possible to apply for a tenancy or property ownership transfer. This may include unmarried parents and married parents who do not wish to divorce. • Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 – Joint legal owners can apply to court under this Act for an order to prevent, postpone or force sale to establish what share each will be entitled to. The court cannot however order the transfer of ownership.

Divorcing/dissolving a civil partnership This is not a short-term answer to housing problems, as it is a long and complicated legal process. However, someone could apply for court orders to do with money and the home at the same time. In fact, orders made as part of divorce/dissolution proceedings will usually overrule any that have been made earlier. The courts can make orders such as: • regular maintenance payments • lump sum payments • property adjustment orders (if the home is owner-occupied) • tenancy transfers (if the home is rented) • pension adjustments. If the person does not legally end his or her relationship, living apart is enough to class as ‘separated’ for tax and benefit purposes. Even if they continue living together, can still be classed as separated but it is helpful to get a deed of separation to formalise what’s been agreed.

The Domestic Violence Immigration Rule Some people may have permission to be in the UK as a spouse, civil partner or unmarried/same-sex partner of a UK citizen or settled person, but are still subject to immigration control. They have no recourse to public funds, and must complete a probationary period in the UK before they can apply for “indefinite leave to remain”. This applies mainly to people from outside the European Union. The probationary period was extended to 5 years for those who applied to enter the UK on or after 9th July 2012. Before that date, the probationary period was two years. Where such a person is a victim of DV, and as a result their relationship breaks down during the probationary period, a concession in the Immigration Rules allows them to apply before the end of the probationary period for indefinite leave to remain in the UK.

Immigration: The DV Concession Under the concession, introduced in 1999, foreign spouses/unmarried partners who wanted to leave their partner due to domestic violence during their probationary period have been allowed to stay in the UK, even though they were no longer living with their sponsor. Such people must provide evidence of the DV consisting of one of the following: • An injunction, non-molestation order or other protection order made against the perpetrator/sponsor; • A relevant criminal court conviction against the perpetrator/sponsor; or • Full details of a relevant police caution issued against the perpetrator/sponsor.

Immigration: DV Concession – Recent Changes Under the changes allowed at present, if one of the above pieces of evidence is not available, more than one of the following is acceptable: • A letter showing that a multi-agency risk assessment conference (MARAC) has been convened on behalf of the victim; • A medical report from a hospital doctor or GP who has examined the victim confirming that the injuries are consistent with being a victim of DV; • An undertaking given to a court that the person who committed the violence will not approach the victim. • A police report confirming that, because of a domestic violence incident, they attended the address at which the incident took place; • A letter from a social services department confirming its involvement in connection with domestic violence committed against the victim. • A letter of support or a report from a domestic violence support organisation/refuge.

Immigration: Access to Public Funds Whilst an applicant is awaiting a decision in relation to the DV Concession, she is now entitled to apply for access to benefits for a 3 month period to the UKBA (UK Border Agency). This is the Destitution Domestic Violence (DDV) Concession. Who is eligible for the DDV concession? There are strict eligibility criteria for the concession, which applies to single adults and adults with children. To meet the UKBA’s criteria a person must: • Have entered the UK or been given leave to remain as a spouse, civil partner, unmarried or same sex partner of a British citizen or someone present and settled in the UK; and • Have had that relationship break down due to domestic violence; and • Be destitute and in need of financial help; and Intend to make a claim to stay permanently in the UK under the Domestic Violence Rule. Once granted DDV Concession, the applicant is eligible to access public funds, including housing benefit, seek support from domestic violence shelters or apply for a homelessness assessment at their local authority housing office. However, until the DDV concession notification is submitted, and until UKBA has responded (usually within 1-2 days), an applicant will not have access to public funds.

No Recourse to Public Funds: Legal Arguments Where no recourse to public funds restriction applies, or a person is in the process of submitting a DDV Concession notification or awaiting decision, Social services departments should assess a person or family fleeing domestic violence in these circumstances as the local authority has a general duty to protect victims of domestic violence. Children Act 1989 and Human Rights Act 1996 • Section 17: General Duty to safeguard and promote the welfare of children; • Section 20: Duty to provide accommodation for children in need; • Article 8 (Rights to respect for Private and Family Life) Human Rights Act 1998 Safeguarding and Vulnerable Adults • Care Act 2014 Extracts from Statutory Guidance on Definition of Safeguarding 14.2 The Safeguarding duties apply to an adult who: • has needs for care and support (whether or not the local authority is meeting any of those needs) and; • is experiencing, or at risk of, abuse or neglect; and • as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

LEGAL AID FOR FAMILY LAW AFTER 1ST APRIL 2013 Legal aid continue to be available for following family law cases: • Applications for non-molestation and occupation order • Applications for forced marriage protection orders • Applications for orders in relation to children abducted abroad • Proceedings brought by the LA for care orders Legal aid no longer routinely available in the following cases: • Divorce proceedings • Applications in relation to children about child arrangements orders, prohibited steps orders or specific issue orders.

The Domestic Violence Gateway Legal aid for these cases will, however, still be available in cases where there has been, or is a risk of, DV and where you can provide one of the following pieces of evidence: • That the perpetrator has been convicted of a DV offence and the conviction is unspent; • That the perpetrator accepted a caution for DV offence within past 2 yrs; • That a bind over order was made against the perpetrator in relation to a DV offence within the past 2 years. (A bind over is a court order the perpetrator promises to ‘keep the peace’ for a certain period); • That there are ongoing criminal proceedings in respect of a DV offence against the perpetrator; • That the perpetrator is on police bail for a DV offence (police bail is given before charge where the police are still investigating). • That the survivor has a protective injunction (such as a non-molestation, occupation order, an injunction under the Protection from Harassment Act 1997, a restraining order, a forced marriage protection order, a DV protection order, a DV protection notice) in force or one had been made within the past 2 years;

That the perpetrator has given an undertaking in respect of DV and the undertaking is still in force or had been made within the past 2 years and where no cross undertaking by the Survivor has been given; • That a court or tribunal has made a finding of fact that the survivor has experienced DV in the past 2 years; • A letter to confirm that the survivor has been referred to a Multi-Agency Risk Assessment Conference (MARAC) as a victim of DV and a plan is in place within the past 2 years; • That the survivor has a report from a doctor, nurse, midwife or licensed psychologist confirming that the survivor was examined, in person, in respect of any injury or condition consistent with DV within the past 2 years. The report does not have to be from the health professional that actually examined the survivor; it can be from another health professional that has access to the survivor’s medical records;

That the survivor has been assessed by social services as experiencing or at risk of experiencing DV within the past 2 years; • A letter from a refuge confirming that the survivor stayed there within the past 2 years because the survivor was a victim of DV. The 2 years starts from the date the survivor left the refuge; • A letter from a DV support organisation confirming that, within the last 2 years, the survivor has been refused accommodation at a refuge as there was insufficient accommodation. The letter must confirm that the refuge provides accommodation for victims of DV and the date when the survivor was refused accommodation; • A letter to confirm that, within the last 2 years, a health professional (a doctor, nurse, midwife or licensed psychologist) referred the survivor to a specialist support service for victims of DV. The letter must be from either a health professional or the specialist service where the survivor was referred to.

Housing Training