The use of mediation in preventing homelessness in England

AuthorPatricia Ng
PositionSchool of Oriental and African Studies, University of London, London, UK
1 Introduction

The government in the UK has advocated the use of homelessness prevention “tools” by local authorities to combat homelessness since the implementation of the Homelessness Act 2002. Mediation is used by many local authorities in their dealings with potentially homeless people, primarily in order to prevent homelessness in a crisis situation, essentially in circumstances where the host is a family member or friend (Communities and Local Government, CLG, 2006a, paras 8.9-8.12 ). In particular, unless the home was considered to be unsafe or unsuitable for them, the government expects 16 and 17 year olds to live in the family home – and mediation is considered to be appropriate for this age group in preventing homelessness ( CLG, 2006a, paras 12.7-12.9 ). Since one of the most common causes of homelessness is parents, relatives or friends not being able to provide accommodation, local authorities have shown interest in establishing mediation services aimed at reconciling young people with their parents or other host householder ( CLG, 2006a, Annex 6, 2007, para 5.1 ). However, for about 25 years, local authorities in England have had a reactive duty to assess any homeless or potentially homeless persons, and assist the “priority need” homeless, along with their family, by the provision of emergency accommodation (Housing Act 1996 Part VII, as amended by the Homelessness Act 2002). Moreover, the homelessness prevention work has been introduced within the context of a significant decrease in social rented housing stock in England.

The question that this paper explores is whether or not the mediatory assistance given by local authorities is an appropriate method to prevent immediate homelessness in the circumstances where a household dispute may result in one party becoming homeless.

In this paper, the use of mediation by local authorities is known as “homelessness mediation.” The person being asked to leave the accommodation will be referred to as the “evictee” while the person who has withdrawn permission is known as the “excluder.” After a brief discussion on methodology, the paper will focus on the homelessness reactive and preventative duties of the local authority. The homelessness prevention work – including mediation – is carried out within the statutory homelessness framework. In the main, local authorities carry out the prevention work with homeless people who would potentially be owed an emergency housing duty. Hence, the statutory duty of the local authority will be outlined in terms of the assessment and provision of emergency housing assistance to the vulnerable homeless. The homelessness mediation work of the authorities will then be discussed.

2 A note on methodology

The lack of data on homelessness mediation has been supplemented by in-depth interviews using a semi-structured questionnaire. Six mediators – five community mediators and one former local authority mediator were interviewed. The perspectives and experiences of three of the mediators in particular – MedLA, Med3 and Med4 – were invaluable in gaining an insight into homelessness mediation. MedLA was a former local authority officer who had carried out mediation with young homeless people, while Med3 and Med4 were community mediators who had taken the lead in setting up and delivering a homelessness mediation service to young people for a local authority. In addition, five housing law practitioners (HLPs) were also interviewed and their views sought on the homelessness prevention work authorities were carrying out. Four of the HLPs worked for three different national non-governmental organisations (NGO), while one HLP worked for an NGO based in one of the London boroughs. One HLP was a solicitor, three had a managerial role in addition to casework – one had specialist knowledge in assisting women fleeing from domestic violence – and one was a caseworker. Three of the practitioners who were quoted within the paper have been identified as follows: CW1, CW2, CW5. A young person who had experienced mediation, known as “Ada” in this paper was interviewed by her caseworker1. Finally, an internet survey was carried out in August 2008 to gather information on the homelessness mediation practices of local authorities in London. A survey of local authorities in 2005 found that 80 percent of them used mediation to prevent homelessness, and 91 percent of authorities in London boroughs were more likely to use mediation to prevent homelessness among people living with family and friends (Office of the Deputy Prime Minister, ODPM, 2005a, p. 14 ).

My 12 years' experience of working as a housing advisor and caseworker in the voluntary sector in London as well as the work that I had carried out with local authorities in relation to their homelessness reviews and strategies enabled me to acquire an understanding of the manner in which authorities processed – or not in many cases – requests for emergency housing assistance from homeless applicants. Being part of the phenomenon of working with the homeless in London has given me important insights into the issue of homelessness.

3 Local authority reactive duty and homelessness prevention work
Reactive duty

The current and main legislation that has been enacted specifically to assist the vulnerable homeless is Part VII of the Housing Act 1996, as amended by the Homelessness Act 2002 (hereafter “1996 Act”). In carrying out an assessment of a homeless person, authorities are required to refer to the Code of Guidance (hereafter the “Code”) – a manual with advisory status rather than having statutory force. The “Code” provides advice on how the homelessness law should be implemented, guidance on how authorities should discharge their functions and apply the various statutory criteria in practice ( Hughes and Lowe, 1995, p. 248 ; CLG, 2006a ). Authorities can depart from the guidance contained in the “Code” but must have regard to the guidance. Failure to do so may provide grounds for challenging the legality of a housing authority's decision2. The current “Code” in force is dated 2006.

Homeless people have never had an automatic entitlement to emergency housing assistance because authorities have discretion in the decision-making process throughout the different stages of the enquiry. The homelessness legislation allows for a narrow interpretation of the homelessness law by local authorities, assuming they take the law into account at all ( Loveland, 1995 ; Cowan and Halliday, 2003 ). In addition, authorities have discretion to decide, within their local area, the particular definition of “vulnerability” under the 1996 Act.

Once a homeless person makes a request for emergency housing assistance by making a homeless application, the authority would need to carry out a five-stage enquiry process. The assessment involves establishing whether an applicant is homeless3, in priority need4, eligible for assistance5, intentionally homeless6 and whether the applicant has a local connection7. In terms of demonstrating priority need, single people would need to be “vulnerable” in legal terms, and authorities are expected to accommodate family members along with the applicant who is in “priority need.” The interim or temporary housing duty is triggered when an authority has reason to believe (a lower threshold) that a person is homeless, in priority need and eligible for assistance8. The full housing duty is owed to an applicant only after a full five-stage enquiry has been carried out and the applicant has “passed every stage successfully”9. The concept of “intentionality” is complex and the Communities and Local Government department provided further guidance to local authorities in 2009 in the form of a supplement to the “Code” ( CLG, 2009a ). The question in relation to intentional homelessness that authorities need to ask applicants is whether he or she took action or failed to take action, and as a result became homeless. The point is that if the applicant could have taken action prior to homelessness but had failed to do so, and as a result became homeless then potentially the claimant could have caused his or her own homelessness. The same reasoning applies in the situation where the applicant took action when he or she should not have done so, and as a result became homeless, then the applicant has potentially made him or herself intentionally homeless. Once an authority has carried out full enquiries into the homeless application, it has a duty to issue a written decision10.

Homelessness prevention work

The Homelessness Act 2002 (hereafter “2002 Act”), which was implemented on 31 July 2002, imposes a new duty on local authorities to be pro-active and strategic in managing the local homelessness situation11. Local authorities have a duty to construct homelessness strategies on a five-yearly basis in order to deal with homelessness at a local level. The strategies are informed by a comprehensive review of the current homelessness situation and include an estimate of the likely future levels of homelessness. At the same time, the local level of available resources must be reviewed.

The policy direction for the homelessness prevention duties can be found in various documents, including the Homelessness Prevention – A Guide to Good Practice (hereafter Good Practice Guide) published in 2006, which provides authorities with information on homelessness prevention tools, along with examples of circumstances when authorities would be expected to focus on preventing homelessness...

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