Deliberate act or omission

'A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. In addition, an act or omission in good faith on the part of a person, who was unaware of any relevant fact, shall not be treated as deliberate.'

Local authorities should have regard to all the circumstances of an applicant before reaching a decision on intentionality, and each case should be decided on its merits. [1]

The intention to carry out an act must be established for an act to be deliberate. So, for example, losing tied accommodation as a result of being dismissed for incompetence would not be considered a deliberate act, whereas dismissal for theft normally would be. [2]

The Code of Guidance clarifies the legal position by advising that the act or omission must have been deliberate. [3] The alleged deliberate act or omission must be that of the applicant and not that of the person who might reasonably be expected to reside with them, which might include someone who has already been declared intentionally homeless or who may be seen as intentionally homeless. This is clear from the wording of the Housing (Scotland) Act 1987. Section 26 states 'A person becomes homeless intentionally...' and Section 28 refers to '...a person (an applicant)...' applying to a local authority for accommodation.

This would be relevant for a client who has been deemed intentionally homeless and has someone else in the household who is eligible to apply for housing. For example, if one partner could be construed as intentionally homeless, the other could legitimately apply and be accepted as not intentionally homeless if they did not acquiesce in the act or omission.

The local authority would then be obliged to rehouse that applicant and anyone who would normally reside with them, including an intentionally homeless partner. The Code of Guidance makes it clear that this legal obligation still remains. [4]

In a social housing allocation decision, the High Court in England has ruled that an applicant had no viable alternative to living in overcrowded accommodation, as he did not have the means to secure large enough accommodation due to the costs. Therefore, his living in overcrowded accommodation could not be seen to be a deliberate act. [5] When referring to this case, bear in mind that this is regarding a housing application and not a homeless application decision.

Caselaw has confirmed that each member of the family unit except children under 16 years old can apply in their own right and the burden of proof is on the applicant to show they did not acquiesce in the conduct which led to the homelessness [6] although the Code of Guidance seems to prescribe a more liberal approach when it states, 'for example, if an applicant's partner has failed to pay rent, or defaulted on loan or mortgage repayments, or given up a tenancy, without the knowledge of the applicant, the applicant cannot be held to be intentionally homeless'. The Code goes on to state, 'similarly, the applicant would not normally be intentionally homeless if he or she was aware of his or her partner's actions but took reasonable steps to prevent it'. [7]

The court has found that in a number of situations a partner has acquiesced. [8] The test appears to be not only whether the person knew of the action or omission, but also whether s/he was in a position to affect the outcome and whether s/he took the necessary steps to do so. For example, being aware of rent arrears does not necessarily mean acquiescence if the partner is unable to clear the arrears. [9]

The court has held that the wife of an alcoholic who had made it clear that she had tried to deter her husband from the drinking which ultimately led to eviction, should have been considered separately. [10] However, in another case where a wife allowed her husband to decide where they should live, she was regarded as having joined in the decision to move, even though there was no evidence that she had made an independent decision to leave or acquiesced in her husband's decision. [11]

Where acquiescence is a feature advisers should consider whether a person had only acquiesced in behaviour due to domestic and/or financial abuse.

Intentionality decisions often concern applicants who have lost accommodation because of rent or mortgage arrears. Some will have had their houses repossessed, others will have sold or left accommodation voluntarily to avoid further arrears. Where the arrears were due to real financial difficulties, the homelessness should not be treated as deliberate. [12]

As a general rule, a person cannot be found to be intentionally homeless from accommodation which was not reasonable to continue to occupy. [13]

However, a local authority can look to see if the person is intentionally homeless as a consequence of her/his entering into an unaffordable arrangement. As such, the deliberate act that caused the homelessness may not be the failure to make mortgage/rent payments but the taking out of an unaffordable loan or the entering into an unaffordable tenancy agreement. [14]

In such a case it will be the loss of the accommodation that was occupied prior to taking on the unaffordable property that is subject to the finding of intentional homelessness.

Case law has held that where a person has persistently failed to provide documentation necessary for the processing of a benefit claim and failed to make up the shortfall between rent and benefits, this may be held to be a deliberate act. [15]

Where there is more than one cause of homelessness, it is sufficient that at least one of them was a deliberate act or omission by the applicant: where a homeless applicant entered into a tenancy that he could not afford, his deliberate omission to inform the benefit department when his partner and child moved in with him constituted a deliberate act causing homelessness because that information would have resulted in increased benefit and prevented him losing the tenancy. [16]

In another case, where a homeless applicant had refused her landlord's offer of help finding a new joint tenant with whom to share the rent liability, this was a deliberate act/omission. [17]

If the applicant acted in good faith in taking out a mortgage that proved to be unaffordable s/he may not be found to be intentionally homeless [18] For more information see Good faith or unaware of relevant fact

Where someone has agreed to repay rent or mortgage arrears by entering into an unaffordable repayment plan which they then cannot keep and they are evicted as a result, this may not be a deliberate act. [19] Advisers should ensure they seek as much information as possible about the client's financial circumstances during the whole of the period in question.

The act or omission must be deliberate, which means that, according to the Code of Guidance, 'the person concerned should have acted or failed to act in a way that that person knew would result in homelessness: the test is not simply whether a reasonable person would have known'. [20] In other words those with mental health problems or learning disabilities should be given more latitude in the interpretation of their actions that led to their homelessness and if the act or omission is due, in whole or part, to their lack of worldliness they should not be deemed intentionally homeless. In circumstances where someone has been evicted for anti-social behaviour the code advises that, before reaching a decision on intentionality 'local authorities should take account of such reasons for antisocial behaviour as mental illness'. [21]

The Public Sector Equality Duty has been held to apply to the exercise of a local authority's function in individual homelessness cases. Where a person's disability could be of relevance, a local authority must have due regard to the need to take steps to take account of this.  The local authority has a duty to make further inquiries into whether an applicant has a disability (or other protected characteristic) and if so whether it is relevant to their decision. Where no such inquiry has been made this may call their decision making process into question.

This applies even where the applicant has not specifically relied upon their disability as an explanation. In Pieretti it was noted that '...a disabled person may not be adept at proclaiming his disability.' [22] For example, where someone has been evicted for rent arrears and the local authority is aware that they have a mental health condition or other medical issues the authority must consider whether this may be relevant, in particular as to whether their conduct has been 'deliberate.'