Andrew Arden KC and Justin Bates KC are the authors of Homelessness and Allocations.
This is included in our Property and Land Law Online Service.
Andrew: I started practising in 1974, at a time of great growth in the law centre movement, as well as major changes to security of tenure for private tenants, followed in 1977 by the first homelessness legislation. As a barrister, and during two years working full-time in a law centre (Small Heath Law Centre in Birmingham), it was clear to me that housing problems were (as they remain) a huge barrier to the wellbeing of a vast number of people. It was clear that as a subject it was complicated, if not downright opaque, and that very few lawyers were specialising in it. I started to do that work, and to write about it, initially in the pages of the Legal Action Group Bulletin, then in a book for Sweet & Maxwell, which was the first edition of what became the Manual of Housing Law. The 12th edition of Manual of Housing Law is scheduled for publication by Bloomsbury Professional soon. I then became General Editor of the Encyclopedia of Housing Law and Practice, as I remain to this day, along with the Housing Law Reports of which I was the founding editor. Local government was intricately involved in housing, and my work in housing led to my work in local government, both as a practising barrister and in the course of detailed inquiries into its operations, for the GLC and Bristol, Hackney and Camden boroughs. In due course, I established Arden Chambers as a centre for specialist housing and local government practice. I was joined by, among others, Andrew Dymond, my co-author of the Manual of Housing Law and deputy editor of the Housing Law Reports and, in time, Justin Bates, now KC, deputy editor of the Encyclopedia of Housing Law and Practice and, of course, co-author of Homelessness and Allocations. (Arden Chambers has subsequently ceased as a set).
Justin: My first exposure to homelessness law was in the early 2000s when I was living in Canada undertaking my Master’s degree. I volunteered for a homelessness charity which was bringing a challenge to newly introduced laws which had the effect of criminalising begging (in a very similar manner to that now proposed by our government). The interaction of law, public finance, public policy and human needs fascinated me. When I came back to the UK and did my pupillage with the late Bryan McGuire QC, I saw quite a lot of the early asylum seeker housing cases (when is the Secretary of State responsible? When is the local authority responsible? What role for the National Assistance Act 1948?). Bryan realised that housing law was what most interested me and, at the end of pupillage, he was kind enough to introduce me to Andrew and to Arden Chambers. Andrew offered me tenancy in his Chambers. That gave me access to a vast range of housing law cases and, over time, I was lucky enough to have the opportunity to work closely with Andrew, both as his junior and then as an assistant on his writing portfolio.
Brexit has required a complete overhaul of the ‘eligibility’ chapter. If readers thought that eligibility of EU nationals was complicated when we were members of the EU, the post-Brexit arrangements are even more so. Different rights arise depending on when someone came to the country and there are even different rights for different EU nationals (Irish nationals are, for example, largely unaffected by the Brexit changes). Looking at ‘pure’ homelessness/allocations law, however, the commencement of the Domestic Abuse Act 2021 has expanded both the circumstances in which someone is homeless and the priority need categories. England and Wales continue to diverge in important respects, particularly around priority need and intentional homelessness. We have also started to see a body of case law developing around the Homelessness Reduction Act 2018.
The present government have suggested introducing a ‘UK connection’ test for social housing. If this was to be introduced then most foreign nationals, even those lawfully present in the UK with refugee status or, potentially, under bespoke resettlement schemes (eg Afghans, Ukrainians), would likely cease to be able to access social housing and will be driven into the private sector. We fear many will find themselves in the worst kinds of private sector accommodation.
Beyond that, the key theme will be the lack of resources available to local authorities to meet the growing need for assistance. The Supreme Court in Imam opened the door to an argument that the Housing Act 1996, s 193(2) duty might be capable of being delayed for a short period of time. It would be naïve to think that some local authority somewhere won’t try to explore the limits of that suggestion, which is an issue which may well need to go back to the Supreme Court.
That no amount of legal practice, no amount of specialising, no amount of commitment to occupiers and social landlords, can substitute for a fully thought through and above all fully funded housing policy designed to ensure that everybody has what is essentially a basic need - an affordable, decent home. As lawyers, all we can do is to defend rights to the occupation and provision of housing and apply our experience to seek fairly marginal changes and to highlight problems. We hope that someday the penny will drop that what bad housing, homelessness, central government’s micro-management of matters local authorities are far better able to deal with, and an ever-increasing downward spiral in housing expectations cost society between them – in health, in education, in employment, in wellbeing and otherwise – far, far more than it would cost to address and discharge that basic need.
