Homelessness - Section 21 Notices and Localism Act 2011

Sections 148 and 149 Localism Act 2011 make significant changes to private rented sector offers of accommodation via local authorities.

Changes to homeless duties

From 9 November 2012 [10], the local authority’s duty to secure accommodation will end if a person accepts or refuses a private rented sector offer [11]. 

For a refusal to be capable of ending a local authority’s duty, the authority must have informed the person in writing of the possible consequence of refusal (or acceptance) of the offer, that there is a right to request a review and the effect under section 195A (see later) of a further application to a local housing authority within two years of acceptance of the offer. 

A private rented sector offer is an assured shorthold tenancy offered by a private landlord with the local authority’s approval. It is a fixed-term tenancy for at least 12 months [12]. In addition, the authority must be satisfied that the accommodation is suitable for the applicant [13].

Suitability of private rented accommodation (for an offer)

The Homelessness (Suitability of Accommodation) (England) Order 2012 provides the matters and circumstances in which accommodation is regarded as suitable or not for a person. The order takes effect simultaneously (9 November 2012).

 In addition to the tenancy being offered by the private landlord having to be for at least 12 months, the following must also be considered:

Matters to be taken into account in determining whether accommodation is suitable for a person

Article 2 provides that the local authority must take into account the location of the accommodation, including

• where the accommodation is situated outside the district of the local authority,
• the distance of the housing from the district of the authority;
• the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household;
• the proximity and accessibility of the accommodation to medical facilities and other support which are currently used by or provided to the person or members of the person’s household; and are essential to the well-being of the person or members of the person’s household; and
• the proximity and accessibility of the accommodation to local services, amenities and transport.

Circumstances in which accommodation is not to be regarded as suitable for a person

Article 3 provides that housing cannot be suitable for a private rented sector offer if any one or more of the following apply:

• the local authority (“LA”) is of the view that the accommodation is not in a reasonable physical condition;
• the LA are of the view that any electrical equipment supplied with the accommodation does not meet the requirements of regulations 5 and 7 of the Electrical Equipment (Safety) Regulations 1994, namely, that the equipment must be safe, which includes being adequately protected against the danger of physical injury or other harm which might be caused by electrical contact directly or indirectly;
• the LA are of the view that the landlord has not taken reasonable fire safety precautions with the accommodation and any furnishings supplied with it;
• the LA believe that the landlord has not taken reasonable precautions to prevent the possibility of carbon monoxide poisoning in the accommodation;
• the LA believe that the landlord is not a fit and proper person to act in the capacity of a landlord, having considered if the person has committed any offence involving fraud, dishonesty, violence, illegal drugs, or any sexual offence. Nor must the landlord have practised unlawful discrimination or contravened any housing/landlord or tenant law.
• the LA accommodation is a house in multiple occupation subject to licensing and is not licensed;
• there is no energy performance certificate for the property;
• there is no gas safety record for the property; or
• the landlord has not provided the LA with a written tenancy agreement, which the landlord proposes to use for a private rented sector offer, which the LA considers adequate.

Re-application after private rented sector offer - Section 195A

Section 149 Localism Act 2011 introduces a new section 195A into the Housing Act 1996, which deals with the situation if, within two years of a private rented sector offer being accepted, the applicant re-applies for accommodation or assistance in obtaining housing. 

This new section takes effect from 9 November 2012. 

The first notable point is that if an applicant re-applies as homeless within two years of taking a privately rented offer, the duty of the LA to secure accommodation applies even if there is no priority need [14].

Section 21 notices homelessness.

Some local authorities refuse to treat a person as homeless until a court order has been obtained after serving a section 21 notice. 

Often, even after the expiry of the notice, the local authority will require the bailiff to be applied for before the tenant will be deemed homeless. 

The new section 195A changes this principle, and where a person re-applies as homeless within two years and has been served a section 21 notice by a landlord, the person is to be treated as homeless from the date on which that notice expires. [15] 

An applicant is to be treated as being threatened with homelessness from the date the notice was given. [16] 

This is excellent news for landlords because it should avoid the need for court proceedings after the expiry of a section 21 notice. 

This is further confirmed by Supplementary guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012, which provides in paragraph 39:

It is not necessary for a possession order to have been sought by the landlord for the applicant to be considered homeless.

There will, however, remain a couple of problems. 

Firstly, presumably, the tenant will only be regarded as homeless on the expiry of the section 21 notice if the notice is valid. That will likely include if any deposit has been protected and prescribed information is given. 

Secondly, this only applies if the tenant came through the local authority in the first place under a private rented sector offer. 

This means by default that the tenancy must have been for a minimum of 12 months, so if the tenant is a problem after month 2 or 3, for example, although a section 21 notice may be served, it may not expire until the 12-month fixed term ends. 

A landlord should nevertheless serve a section 21 notice, even if for 6 or 7 months in length, to ensure the tenant becomes threatened with homelessness by the provisions discussed above. 

It is precarious for landlords to give a 12-month tenancy unless there is a solid home-owning guarantor (even with a guarantor, I would be reluctant to provide such a long fixed term). 

Of course, a homeless applicant is still able to accept a tenancy of any length from a private landlord just as before the changes; it’s just that an acceptance of a tenancy for less than 12 months wouldn’t be a private rented sector offer, and the advantages to the applicant discussed above wouldn’t be available.

The local authority must mention the costs.

When a local authority tells a tenant to stay in possession and await a court order after the expiry of a section 21 notice, they must tell the tenant that they will be liable for the court costs.

Only once in a two-year cycle

The duty to secure accommodation within two years can only happen once. So, if a person applies as homeless, accepts a private rented sector offer, and re-applies after eight months, the local authority will be obliged to secure accommodation. However, if the person then re-applies again after another, say six months, the duty would no longer apply.

1. Localism Act 2011 (Commencement No.2 and Transitional Provisions) (England) Order 2012  ↩
2. Section 193(7AA) Housing Act 1996  ↩
3. Section 193(7AC) ibid  ↩
4. Section 193(7F) ibid  ↩
5. Section 195A(1) ibid  ↩
6. Section 195A(2) ibid  ↩
7. Section 195A(4) ibid  ↩