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Duty to refer North East procedure

2. Referrals

2.1 Who, When, How:

Who

Referrals should be made when the public authority or organisation consider someone may be 'homeless' or 'threatened with homelessness'. The legal definitions of these terms are as follows:

  • ''Homeless'' - a person is homeless if they have no accommodation in the UK or elsewhere which is available for their occupation and which that person has a legal right to occupy. A person is also homeless if they have accommodation but cannot secure entry to it, or the accommodation is a moveable structure, vehicle or vessel designed or adapted for human habitation and there is nowhere it can lawfully be placed in order to provide accommodation. A person who has accommodation is to be treated as homeless where it would not be reasonable for them to continue to occupy that accommodation.
  • "Threatened with homelessness" - a person is 'threatened with homelessness' if they are likely to become homeless within 56 days. Under section 175(5), a person is also threatened with homelessness if a valid notice under section 21 of the Housing Act 1988 has been issued in respect of the only accommodation available for their occupation, and the notice will expire within 56 days.

The intention behind the legislation is not that other professionals become 'housing experts' and that training and guidance to support this procedure includes more information about identifying when someone may be homeless or at risk. Referrers are therefore advised that if they are in doubt on whether they should make a referral, in the first instance they should consult the accompanying training and guidance. If still in doubt, they should submit the referral and the housing authority can respond appropriately.

This procedure and process does not replace or affect any safeguarding concerns and referrals. Please report safeguarding concerns in the usual way.

When

If an organisation considers that a customer may be homeless or threatened with homelessness or if the customer made a positive disclosure to a member of staff that they were homeless or at risk of homelessness the organisation would be required to ask the individual if they would like to be a referred to a LHA. Although the legal definition is 56 days for someone 'threatened with homelessness' this procedure encourages identifying people at risk as early as possible to maximise the opportunities to prevent homelessness. Upon receiving a referral, the LHA will contact the individual and assess whether they meet the criteria to open an application. If contact with a person gives the housing authority reason to believe that s/he me be homeless or threatened with homelessness, this will trigger a homelessness application.

How

The basic legal requirements for a referral is:

  • referring agency details
  • applicant basic information
  • agreed reason for the referral
  • declaration and consent

There are a number of mandatory and non-mandatory questions when submitting a referral. Whilst it may be difficult to provide all the information requested, referrers are encouraged to complete as much information as possible. In particular, it is important to capture the applicant's preferred method of contact (or who should be contacted on their behalf). This will maximise the chance of the housing authority being able to contact and help them, with an initial understanding of their individual circumstances and needs.

Every Local Authority will have details of the Duty to Refer and a copy of the referral form available on each Local Authority website with a dedicated email address to send this to.

Consent for a referral to be made is a legal requirement. In no circumstances can a referral be submitted without the applicant's consent. If the applicant is judged to not have the capacity to do so, referrers are reminded that a homeless application can only be made by a person who has the mental capacity to do so. It is currently uncertain whether a deputy can be authorised by the Court of Protection to make a homeless application on behalf of a person who lacks capacity. Referrers are therefore advised in these cases to Social Services as they may qualify for services (potentially including accommodation) under the Care Act 2014.

2.2 Response Time

A referral made by a public authority under its duty to refer does not constitute a homeless application. However, a local authority should always respond to a referral by contacting the individual. If it does not get a response, it should provide information on how the individual can access advice and assistance via a phone call, email or a letter. For this procedure, an emergency case is when an individual or family require immediate assistance within 3 working days e.g. they are 'roofless' and have nowhere to stay. In these instances, please use the existing emergency protocols for the relevant housing authority. In all other cases, referrals will be dealt with within a standard 5 working days.

All Local Authorities should store information received from the referring authority to use in its assessment and personalised housing plans.

2.3 Referrals to other housing authorities in England

The regulations state the individual should identify which housing authority they would like to be referred to in England. The scope of this procedure is those that wish to be referred to a housing authority within the North East region. If they wish to be referred to another housing authority, referrers will need to follow the MHCLGs Code of Guidance, Chapter 10. This states:

  • When a housing authority makes inquiries to determine whether an applicant is eligible for assistance and owed a duty under Part 7, it may also make inquiries under section 184(2) to establish an applicant's local connection.
  • Section 199(1) provides that a person has a local connection with the district of a housing authority if they have a connection with it because:
    1. (a) they are, or were in the past, normally resident there, and that residence was of their own choice; or,
    2. (b) they are employed there; or,
    3. (c) they have family associations living there; or, 
    4. (d) of any special circumstances.
  • For the purposes of (a), above, 'normal residence' is to be understood as meaning 'the place where at the relevant time the person in fact resides.' Residence in temporary accommodation provided by a housing authority can constitute normal residence of choice and can contribute towards a local connection.
  • In the case of a person who is street homeless or insecurely accommodated ('sofa surfing') the housing authority will need to carry out a different type of inquiry to be satisfied as to their 'normal residence' than would be required for an applicant who has become homeless from more settled accommodation. If an applicant has no settled accommodation elsewhere, and from inquiries the authority is satisfied that they do in fact reside in the district, then there will be normal residence for the purposes of the 1996 Act.
  • The Local Authorities Agreement suggests that a working definition of normal residence sufficient to establish a local connection should be residence for at least 6 months in an area during the previous 12 months, or for 3 years during the previous 5 year period.

2.4 Does a referral trigger a homelessness application?

No - applicants must still make an application in the usual way following a referral. However, we have agreed that local authorities will always respond to referrals by making contact with the individual.

2.5 Single points of contact

Each Local Authority has a single point of contact for public authority referrals

Durham County Council

Redcar and Cleveland County Council

Thirteen Group and Middlesbrough

South Tyneside Council

Newcastle City Council

North Tyneside Council

Darlington Borough Council

Stockton-On-Tees Borough Council

Northumberland County Council

Sunderland City Council

Hartlepool Borough Council

The Gateshead Housing Company and Gateshead Council

2.6 Multiple referrals

When establishing local arrangements, housing authorities should consider the issues of multiple and repeat referrals and agree protocols with service partners to mitigate these.

There may be circumstances in which an individual's application has been closed by the housing authority and a new referral is received shortly after. The housing authority should respond to the referral and make contact with the individual to evaluate if there has been any change in relevant facts since the last application, which would warrant inquiries being made into any new application for assistance under Part 7.

2.7 Joint working arrangements

The Tyne and Wear Operational Group and Teesside Operational Group will meet quarterly to ensure effective joint working in each area. These groups consist of Local Authority representatives.

2.8 What happens if the duty to refer is not fulfilled?

There is no sanction specified in the Act however, breach of the duty could be subject to Judicial Review and a failure to comply with the duty could also be addressed through contractual means where a provider's contract requires a contract holder to comply with all their legal duties.

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