Round #1119

Applicant is sofa-surfing at a friend's two-bed flat in Birmingham; the friend has told her in writing on 2 April 2025 she must leave by 30 April 2025. Applicant approached the council on 7 April 2025. The duty officer told her she is "not homeless or threatened with homelessness" because she "has accommodation tonight". Under section 175(4) Housing Act 1996 (as amended by the Homelessness Reduction Act 2017) and the Code of Guidance, when does the prevention duty under section 195 trigger?

# Threatened with Homelessness: Legal Analysis ## The Core Statutory Provision **Section 175(4) Housing Act 1996** (as amended by the Homelessness Reduction Act 2017) provides: > *"A person is threatened with homelessness if it is likely that he will become homeless within 56 days."* This is the operative test. The duty officer's reasoning is **legally wrong**. --- ## Application to the Facts ### The Timeline | Date | Event | |------|-------| | 2 April 2025 | Written notice received: vacate by 30 April 2025 | | 7 April 2025 | Applicant approaches council | | 30 April 2025 | Required to leave | | 2 June 2025 | 56 days from date of approach | On **7 April 2025**, the applicant is **23 days** from the date she must leave. This falls squarely within the 56-day window. She is **threatened with homelessness** as a matter of law. --- ## The Duty Officer's Error The statement that she is *"not homeless or threatened with homelessness because she has accommodation tonight"* misapplies the statute in two distinct ways. ### Error 1: Wrong test applied The officer applied an informal "roof over head tonight" test which has **no statutory basis**. Section 175(4) asks whether homelessness is **likely within 56 days**, not whether the applicant has somewhere to sleep on the day of application. ### Error 2: Ignoring the written notice The written notice from the friend constitutes **cogent evidence** that homelessness within 56 days is not merely possible but **likely**. Under **paragraph 6.3 of the Homelessness Code of Guidance for Local Authorities (MHCLG, 2018)**, authorities must treat an applicant as threatened with homelessness where they have received a **valid notice to leave** and there is no reasonable prospect of remaining beyond the expiry date. --- ## When Does the Prevention Duty Trigger? ### Section 195(1) HA 1996 > *"A local housing authority must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for his occupation"* — where the applicant is **eligible** and **threatened with homelessness**. The prevention duty **triggered on 7 April 2025**, the date of application, because at that point: 1. The applicant was threatened with homelessness within 56 days ✓ 2. The threat was likely, not merely theoretical (written notice existed) ✓ 3. The applicant was eligible (assumed on the facts) ✓ The duty does **not** require the applicant to wait until notice expires, be imminently street homeless, or exhaust their current accommodation. --- ## Additional Points of Legal Significance ### The "Reasonable to Occupy" Dimension Even while technically occupying the sofa, the applicant may already be **homeless** under **s.175(3)** if it is not reasonable to continue to occupy the accommodation. A sofa in a two-bed flat following a written notice to leave may fail the reasonableness test (see *Code of Guidance, paras 6.8–6.14*; *R v Brent LBC ex parte Awua* [1996] AC 55 on the broad construction of "available"). If so, the **relief duty under s.189B** would be triggered instead, which is a more demanding obligation on the authority. ### Duty to Conduct an Assessment Under **s.189A HA 1996**, upon an application the authority must assess: - the circumstances causing the applicant's actual or threatened homelessness - the housing needs of the applicant and their household - what support would be needed to obtain and retain accommodation This assessment duty arises **immediately on application** and cannot be deferred pending a finding of homelessness. ### Personal Housing Plan The authority must notify the applicant of the **steps they and the authority will take** under a Personal Housing Plan (s.189A(3)). This is a **mandatory procedural step**, not discretionary. --- ## Grounds for Challenge The duty officer's decision is susceptible to: | Route | Basis | |-------|-------| | **Internal review / escalation** | Immediate practical step; request written decision | | **Judicial Review** | Decision is arguably unlawful as applying wrong legal test; urgent claim given time pressure | | **Local Government Ombudsman** | Maladministration / failure to accept a valid application | | **Pre-Action Protocol letter** | Letter before claim citing s.175(4), s.195, Code of Guidance para 6.3 | Given that **30 April 2025** is imminent, an application for **urgent interim relief in the Administrative Court** (or referral to a specialist housing solicitor / Shelter) should be considered immediately. --- ## Summary > The prevention duty under **s.195 HA 1996** triggered on **7 April 2025**. The applicant was threatened with homelessness within 56 days by virtue of the written notice expiring 23 days hence. The duty officer's refusal was based on a legally incorrect test and should be challenged in writing without delay.

## When the Section 195 Prevention Duty Triggered ### The Legal Test: Section 175(4) HA 1996 A person is **threatened with homelessness** if it is likely they will become homeless within **56 days**. This replaced the old 28-day threshold introduced by the Homelessness Reduction Act 2017. --- ### Application to These Facts **Date of approach:** 7 April 2025 **Date she must leave:** 30 April 2025 **Days until homelessness:** **23 days** 23 days is well within the 56-day threshold. The applicant is therefore **threatened with homelessness as a matter of law** on 7 April 2025, regardless of whether she has a roof over her head that specific night. The duty officer's reasoning is **wrong in law**. Section 175(4) does not ask whether the applicant has accommodation *tonight*; it asks whether she is *likely to become homeless within 56 days*. She plainly is: she has a written notice to quit by 30 April, which is only 23 days away. The written notice from her friend is exactly the kind of evidence the Code of Guidance (Chapter 21, para. 21.9) identifies as capable of establishing the likelihood of homelessness within the statutory period. --- ### Sofa-Surfing: The Additional s.175(3) Point The duty officer's analysis is doubly flawed. Even ignoring the 56-day window, sofa-surfing in a two-bed flat that is not the applicant's home may independently mean she is **already homeless** under s.175(3) HA 1996 — if it is not reasonable to continue to occupy the accommodation, or if she has no legal right to occupy it. A friend's permission to sleep on a sofa, terminable informally, is unlikely to constitute settled accommodation. The council should consider this separately. --- ### What Triggers and What Must Happen | Step | Detail | |------|--------| | **Duty triggered** | Section 195 prevention duty arose on **7 April 2025** (date of approach) | | **Eligible threshold** | Threatened with homelessness within 56 days — satisfied (23 days remaining) | | **Duty on council** | Must take reasonable steps to help her secure accommodation that will be available for at least 6 months (s.195(2)) | | **Personal Housing Plan** | Must be agreed promptly (Code of Guidance para. 14.11); it must be tailored — a generic plan will not discharge the duty | | **Duration of prevention duty** | 56 days from when the duty is accepted (not from the date of approach if there is a delay in acceptance, but delay does not extinguish it) | --- ### Immediate Action Points 1. **Challenge the decision in writing immediately** — the refusal to accept a duty is itself a reviewable decision under s.202 HA 1996; request a review. 2. **Preserve the written notice** from the friend dated 2 April 2025 — this is primary evidence of the threatened homelessness date. 3. If the council refuses to reconsider, apply to the **County Court on appeal** under s.204 HA 1996 within 21 days of the s.202 review decision, or seek **judicial review** of an unlawful failure to make an s.184 inquiry at all. 4. The applicant may also wish to contact a local homelessness charity or **Shelter's Birmingham team** for same-day advocacy given the urgency. The duty officer's position is not a defensible interpretation of the statute. The prevention duty under s.195 should have been accepted on 7 April 2025.