What to consider

From 1 November 2019 the local authority have discretion as to whether they decide to investigate whether an applicant is intentionally homeless. [1] Prior to this date the legislation placed a duty on them to do so.

The decision to investigate must reflect a real exercise of discretion and therefore the local authority must consider the individual merits of each case. [2]

When processing an application it is clear that the burden is on the local authority to 'satisfy itself' that the applicant is intentionally homeless. It is not expected that the applicant will have to prove that they are not intentionally homeless. [3]

The onus of proof is discharged on the balance of probabilities. [4] If there is any doubt in the matter then the applicant is entitled to the benefit of the doubt. [5]

When addressing intentionality the local authority may not only look at the incident which was the immediate cause of homelessness, it can also look back in appropriate cases to the applicant's reasons for leaving their last settled accommodation [6].

The public sector equality duty under section 149 of the Equality Act 2010 (to take account of a person's protected characteristics (ie age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) applies to the homelessness decision making process.

For example, in one case, failure to make adequate inquiries into an applicant's disability and to consider the relevance of that disability as to whether or not the applicant was 'intentionally homeless' was a breach of the above duty and the decision was quashed. [7] ] The duty will only apply where the authority has reason to believe such inquiries are relevant, so advisers should make the local authority aware of all the applicant's circumstances.