Established 2005 Registered Charity No. 1110656

Scottish Charity Register No. SC043760

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Worries over HB

June 27 2013
‘Confused’ councils cut housing benefit to night shelters


Night shelters operating on a ‘first come, first served’ basis are under threat following a new legal ruling, which has prompted a number of local authorities to withdraw or reassess their housing benefit payments. Widespread confusion over whether residents of UK night shelters are still legally eligible for housing benefit followed the publication of the February ruling, in which the judge ruled that Isle of Anglesey County Council was not liable to pay housing benefit to the claimant, ‘OR’, for nights spent at a Holyhead night shelter – on the grounds that he did not occupy the dwelling “as his home”. Kevin Spice, of Isle of Anglesey County Council, said “One of the main reasons the HB section had reservations about the proposal was, despite the extremely limited facilities available at the night shelter, the nightly charge for occupants was intended to be in excess of the rate that was being paid by the Council’s homeless section to B&B establishments housing homeless people. “The night shelter was only ever intended as a short-term measure over the winter months,” Spice added. “It was scheduled to close at the end of March 2008. However, the night shelter continued to operate until June 2008.”

Since the ruling, Salford City Council has stopped payments of housing benefit to Narrowgate Night Shelter, forcing the 28-bed unit to close.

The Guardian reported that the council “feared that the Department of Work and Pensions would refuse to recompense it for payments ruled illegal”.

Another shelter “in the south” has also been affected, said Homeless Link’s head of communication, Ben Knox. According to the homeless umbrella charity, “The council has decided it will only fund the four beds [each given to the same person for up to 28 days] until the remaining six are no longer allocated on a nightly basis.”

Blackpool Council also reviewed its housing benefit payments to local night shelters such as Streetlight, but decided not to change its policy after seeking legal advice. According to a statement on its website, the council was “assured that the case will not set a precedent and the DWP were not seeking to establish a wider principle of refusing to give housing benefit to night shelters”.

The judge did emphasise that the ruling was based on the facts of the individual case and were not intended to “prescribe how housing benefit claims from rough sleepers should be decided”. However, the judge made the decision based on the fact that the claimant had no guaranteed place for the night, no right to occupy the hostel for longer than his 12-hour overnight stay and was unable to stay or leave his belongings in the shelter during the day – all factors that are not unique to the Holyhead shelter.

According to Homeless Link, “it is not yet clear how far this will have an impact across the country as not all night shelters are reliant on housing benefit”. The organisation does not yet have statistics on this or on how much of the overall housing benefit budget goes to night shelters.

“It’s a bit of a difficult one - how do you define a night shelter?” said Knox. “I mean, there are many that are open for the winter – a lot of which are closing down now... It’s not that clear-cut.”

Legal action
Many homeless organisations and individuals are now demanding clarification before the situation escalates. Two campaigns have been launched: one by the manager of Narrowgate Night Shelter Phil Brown on the 38 Degrees website; the other by Emmaus companion John Gall on the Change website. The 38 Degrees petition has attracted 4,644 signatures and calls on Iain Duncan Smith, secretary of state for work and pensions, to “please make an allowance in the application of the definition of ‘dwelling’, in terms of housing benefit [..] so that a night shelter will automatically qualify as a dwelling”. The Change petition, meanwhile, has clocked up 10,983 signatures and asks Lord Freud, minister for welfare reform, and the DWP to “make sure night shelters aren’t forced to close their doors to homeless people”.

Homeless Link has called for the government to publish its own legal advice on the matter. “In the short-run, government has a responsibility to clear up confusion around this ruling and councils should ensure there is emergency accommodation for homeless people in place,” it said.

“What this highlights is the fundamental need for both secure long-term funding for effective emergency accommodation, as well as accommodation that provides individuals with a secure base they can call home”.

But will the government distribute legal advice help? “Guidance is advice and councils are statutorily obliged to pay attention to advice but it doesn’t trump [an upper tribunal decision],” solicitor and Nearly Legal blogger Giles Peaker told The Pavement. What will do the trick, he surmised, is passing secondary legislation or a new regulation to say “night shelters count as dwellings”.

However, Alan Murdie, barrister and former senior lawyer of legal charity Zacchaeus 2000 Trust, argued there was “too much legislation. It’s gone beyond what any human being now understands”. There are at least three ways of reading a regulation, he claimed. “This is an exercise in statutory interpretation... and you can’t guarantee just on one [judge’s] decision that the correct reading of the law has been made... I can see adverse judgements going on for an awfully long time, creating an awful lot of havoc”.

The cutbacks in legal aid make things even more difficult for individuals and even groups to take action. “There are pro bono lawyers who can be instructed,” explained Murdie. “But you’ve got to get solicitors together first and most of the ones that do legal aid work are now struggling under the new regime. People can do judicial reviews themselves but it is very hard.”

However, secondary legislation isn’t the only option. An alternative, Peaker suggests, “would be by an appeal either in that case [Isle of Anglesey vs OR] or another case up to the Court of Appeal”. The latter is perhaps more likely as the time frame for ‘OR’ to launch an appeal is increasingly shrinking: according to online guidance, claimants “must ask the Upper Tribunal judge for permission to appeal within one month of the decision (three months for social entitlement and war pensions or armed forces cases), stating why you are asking for permission to appeal”.

Another potential route outlined by Peaker is where “a decent QC finds a way to really distinguish that case on its facts so it wouldn’t apply to other similar night shelters”. In terms of action, Peaker concluded, “the most likely way of getting an outcome is if councils and the homeless and the charities and the night shelter charities link up and actually lobby the DWP”.

Lobbying government
Already the issue has provoked widespread media attention and is being pushed to the foreground in Parliament.

In a Commons debate on 20 May, the Labour MP for Bolton West Julie Hilling asked Duncan Smith the following: “Given that night shelters will not be able to continue without an income from their service users, what action is being taken to address this problem?”

He replied that the DWP was “looking at this issue with my noble friend Lord Freud”, adding that he would “definitely” write to Hilling regarding the outcome. So far, she has not received a response.

Narrowgate manager Brown is also pushing the issue as far as possible. “We’ve got a petition going, our local MP is on the case [and] we’ve actually got members of the House of Lords submitting written parliamentary questions,” he told The Pavement. “We’re quite ahead of the game on getting it discussed on Prime Minister’s Questions, things like that”.

However, he added: “getting legislation changed can be measured in months if not years, whereas we’ve got people on the street tonight, tomorrow night, next weekend”.

The charity is also focusing on fundraising. Already it has received a generous donation from a member of the public which will allow it to re-open three nights a week over the next four months – but it needs many more funding pledges if it is to continue beyond then.

Meanwhile, the DWP is continuing to highlight that any action councils take is a local decision. A press office spokesman Daniel Barnes told The Pavement, “The decision was very much about one [shelter],” adding: “I know other areas that have been taking legal advice about whether it’s supposed to cover them or not, or what is the correct funding stream for these places” – suggesting housing benefit is not viewed by the government as the ‘correct funding stream’ for night shelters.