When does a local authority have a duty to protect the belongings of a homelessness applicant?

Clients that present as homeless may be concerned about what happens to their belongings once they are evicted, especially if they are going into temporary accommodation that is a hostel, hotel or is smaller than the accommodation they have left.

This article will outline when the local authority has a duty to protect a homeless applicant’s belongings. This article applies to England and Wales. Please note the difference in homelessness duties and the different Acts that cover both jurisdictions. However the duty to protect belongings works in largely the same way.

The local authority will have a duty to protect the client’s belongings if the applicant meets the criteria in s.211 of the Housing Act 1996 in England and s.93 of the Housing (Wales) Act 2014 in Wales:

Section 211 of the Housing Act 1996 reads:-

(1) This section applies where a local housing authority have reason to believe that —

1. there is danger of loss of, or damage to, any personal property of an applicant by reason of his inability to protect it or deal with it, and
2. no other suitable arrangements have been or are being made.

(2) If the authority have become subject to a duty towards the applicant under —

• section 188 (interim duty to accommodate),
• section 189B (initial duty owed to all eligible persons who are homeless),]
• section 190, 193 or 195 (duties to persons found to be homeless or threatened with homelessness), or
• section 200 (duties to applicant whose case is considered for referral or referred),

then, whether or not they are still subject to such a duty, they shall take reasonable steps to prevent the loss of the property or prevent or mitigate damage to it.

(3) If they have not become subject to such a duty, they may take any steps they consider reasonable for that purpose.

(4) The authority may decline to take action under this section except upon such conditions as they consider appropriate in the particular case, which may include conditions as to —

(a)the making and recovery by the authority of reasonable charges for the action taken, or

(b)the disposal by the authority, in such circumstances as may be specified, of property in relation to which they have taken action.

(5)References in this section to personal property of the applicant include personal property of any person who might reasonably be expected to reside with him.

Section 93 of the Housing (Wales) Act 2014 reads:-

1. Where a local housing authority has become subject to a duty in respect of an applicant as described in subsection (2), it must take reasonable steps to prevent the loss of the personal property of the applicant or prevent or mitigate damage to it if the authority has reason to believe that —
2. there is danger of loss of, or damage to, the property by reason of the applicant’s inability to protect it or deal with it, and
3. no other suitable arrangements have been or are being made.

(2) The duties in respect of an applicant are —

• section 66 (duty to help to prevent an applicant from becoming homeless) in the case of an applicant in priority need;
• section 68 ( interim duty to secure accommodation for homeless applicants in priority need);
• section 75 (duty to secure accommodation for applicants in priority need when the duty in section 73 ends);
• section 82 (duties to applicant whose case is considered for referral or referred) in the case of an applicant in priority need.

(3) Where a local housing authority has become subject to the duty in subsection (1), it continues to be subject to that duty even if the duty in respect of the applicant as described in subsection (2) comes to an end.

(4) The duty of a local housing authority under subsection (1) is subject to any conditions it considers appropriate in the particular case, which may include conditions as to —

1. the making and recovery by the authority of reasonable charges for the action taken, or
2. the disposal by the authority, in such circumstances as may be specified, of property in relation to which it has taken action.

(5) A local housing authority may take any steps it considers reasonable for the purpose of protecting the personal property of an applicant who is eligible for help or prevent or mitigate damage to it if the authority has reason to believe that —

1. there is danger of loss of, or damage to, the property by reason of the applicant’s inability to protect it or deal with it, and
2. no other suitable arrangements have been or are being made.

Below is a practical step by step guide for Advisers to work out when a local authority has a duty to protect the belongings of a client who has presented as homeless.

Ascertain what homelessness duty is owed to the client

If the client (the homelessness applicant) is owed the duties set out in s.211(2) or s.93(2) (as set out above) then the local authority may have a duty to protect their belongings. This extends to the belongings of members of the applicant’s household (anyone reasonably expected to reside with the applicant).

Practical example: Lata has made a homelessness application to the local authority after an illegal eviction by a private landlord. She has a 12 year old son, but also cares for her disabled adult brother, Jhangir, who lived with her but was not a tenant. He additionally has a motorised wheelchair and accessories, plus adapted furniture. Her brother can reasonably be expected to live with her, so his belongings must also be protected under s.188 (England) or s.68 (Wales).

What homelessness duty the client is owed may not be easy to ascertain — especially if the client does not attend with any paperwork etc. An adviser is best placed to contact the local authority and find out what duty is owed to the client. If the client is not subject to the duties set out in s.211(2) or s.93(2), then the local authority will not have a duty to protect their belongings. It may still be worth asking if the local authority will exercise their discretion under s211(3) (England) or s93(5) (Wales) but if they refuse, there is no further challenge available.

An adviser may be able to assist with finding grant funding or find organisations in the local area that help with low cost storage. Alternatively, a client may have to rely on the goodwill of friends or family to temporarily store their belongings.

Consider will the client’s property be lost or damaged due to their inability to look after it or deal with it?

If the client is subject to the duties set out in s.211(2) or s.93(2) that does not automatically mean the local authority will have a duty to protect their belongings.

The next question is: “is there reason to believe that the client is unable to protect or deal with the belongings and as a result of this danger of or loss or damage to their personal property may occur and no other suitable arrangements can be made.”

A client’s mental or physical vulnerability could be why they are unable to deal with or protect their belongings. but the client may be unable to afford to move or store their belongings.

“Reason to believe’’ is purposely a lower threshold than “being satisfied.” This means the local authority could base their decision on the information provided by the applicant, rather than demanding medical reports, statements from friends and family or financial statements.

Practical example: Jim and Carlos make a homelessness application.They were evicted from their 2 bedroom private tenancy flat due to the landlord selling the property. The flat is full of their furniture and the landlord has given them 7 days to move their belongings. Jim suffers from osteoarthritis and Carlos suffers from anxiety and depression. They have been given interim accommodation under s.188 (England)/s.68 (Wales). They are both in receipt of Universal Credit. Jim cannot physically move his belongings and Carlos cannot deal with the stress of removals due to his mental health. They have no family and friends that can take any of their belongings. They also cannot afford a storage facility. They are being placed in hostel accommodation by the local authority so can only take one suitcase each.

There is sufficient information for a local authority to have a duty to protect their belongings under s.211/s.93 as the client is owed a homelessness s.188/s.68 duty. There is an inability to protect his and his partner’s belongings and there is reason to believe that this could lead to damage or loss of their belongings.

Charges for removals and storage

A local authority subject to the s.211/s.93 duty is able to:

• enter the property to recover goods;
• arrange for a removal service;
• arrange for storage facilities (own or third party)

The local authority is not obliged to offer removals and storage free of charge.

They may attach conditions to the duty, which can include applying a ‘reasonable charge’ for the action they take or disposal in some exceptional cases. Some pay upfront for storage and then enter into a repayment plan with the client once they have been re-housed and the belongings are out of storage. Some set up a weekly or monthly pay as you go agreement.

In both instances the charges need to be reasonable and that will depend on the income of the client.

The Local Government and Social Care Ombudsman (LGSCO) has released a factsheet on possessions in council storage for clients in England. Whilst not binding in Wales, given the similar legal position in a homelessness context, it may be persuasive to use for complaints in Wales.

The LGSCO awarded £300 and ordered an apology to a client where the local authority refused to pay beyond the first month’s storage fees despite knowing the client could not afford the fee. You can read the full case here: 22 006 444 — Local Government and Social Care Ombudsman

The LGSCO awarded £1860 in compensation after the local authority stated that due to budgetary constraints they could not offer removals assistance. The Ombudsman found that this was not a proper reason and the authority should have considered other options such as a discretionary housing payment. You can read the full case here: 22 005 303 — Local Government and Social Care Ombudsman

When does the duty to protect belongings end?

The only way this duty ends is where either:

• there is no longer reason to believe that the client cannot deal with their property so there is no longer any danger of loss or damage, or:
• other suitable arrangements can now be made

If someone’s homelessness duties end this does not mean the duty to protect the belongings ends. The local authority would need to continue to protect the belongings until such time that the danger of loss or damage ends or the client can reasonably make other suitable arrangements.

Practical example: Bianca’s main homelessness duty ends (for whatever reason) and she is now street homeless with no further homelessness duties owed to her. As she is street homeless, her inability to protect or deal with her belongings continues which means there is a continued threat of danger of loss or damage to the belongings. The local authority continues to be subject to the s.211/s.93 duty until such time the client can find some way of protecting or dealing with their belongings.

Pursuant to s.212(2) in England / s.94(4) in Wales, if the client agrees for the belongings to be moved to a location of their own choice (for example, storing belongings at a family’s garage) the duty can also come to an end. The client must be notified before the move that this will mean the duty will end.

Practical example: If we take the example of Bianca again. She is street homeless and not subject to any further homelessness re-housing duty. If she says to the local authority , the belongings can now be stored in my aunt’s garage, I want them moved there — that would be suitable arrangements and therefore pursuant to s.212(2)/s.94(4) the duty can come to an end. The local authority would need to still notify Bianca that duty will now end.

If the client becomes able to protect and manage their belongings, so that they won’t be lost or damaged, the local authority can end their duty pursuant to s.212(4) England and s.94(6) in Wales.

Practical example: Lola is successfully re-housed by way of a suitable final offer of accommodation. She now has suitable space for her belongings, this would be grounds to end the duty.

The local authority should either deliver notification to the client or send it to their last known address. The notification must tell the client the duty has ended and the reasons why.

The local authority will then need to follow a separate process as detailed under s. 41 of (Local Government (Miscellaneous Provisions) Act 1982 which includes notice requirements, timescales and what happens in the event no response from the applicant is received.

Where a client considers that the local authority has wrongly disposed of their belongings or caused damage/lost them they can either:

• make a money claim for their value in the County Court or
• make a complaint to the Local Government and Social Care Ombudsman

In Wales, a complaint would need to be made to the Public Services Ombudsman Wales (PSOW).

• You can find details to make a money claim here:- Make a court claim for money: Make a claim — GOV.UK (www.gov.uk)
• You can find details of how to complain to the LGSCO here:- How to Complain — Local Government and Social Care Ombudsman
• You can find details of how to complain to the Public Services Ombudsman Wales: How to complain | Public Services Ombudsman Wales

If reasonable attempts to contact the client were ignored or written deadlines to collect the belongings ignored, this will have an impact on the merits of any money claim or complaint.

What to do if the local authority fails to protect the clients belongings when they have a duty to do so?

If the local authority had the legal duty to protect your client’s belongings, but failed to, an adviser can send an email to the homelessness officer that:

1. sets out in the email the wording from s.211 Housing Act 1996 or s.93 Housing (Wales) Act 2014
2. explains how the client meets the criteria
3. requests pursuant to s.211/s.93 that the client’s — and their household’s — belongings be protected

If the criteria is met and the local authority refuses, the client should be referred to a Legal Aid provider to pursue a legal challenge.

A client cannot request a review of the local authority’s refusal to protect their belongings. It does not come under the statutory review rights in s.202 in England or s.84 in Wales. Instead, any challenge would need to be by way of judicial review on public law grounds. An application for judicial review must be made promptly and within 3 months of the original decision.

In principle, a client might be able to get Legal Aid funding for a local authority ’s failure to protect belongings under s.211 and s.212 in England and section 93 and 94 in Wales. Para 10.13(f) of the Housing and Debt 2018 Standard Civil Contract Specification states “a new Matter Start may be opened where a threat of Judicial Review is justified in relation to a failure of the authority to protect the Client’s property pursuant to sections 211 and 212 of the Housing Act.”

A Legal Aid provider can be found here and they can carry out a merits and means assessment:- Find a legal aid adviser or family mediator (justice.gov.uk)

In conclusion, this article explains the circumstances under which local authorities in England and Wales have a duty to protect the belongings of homeless applicants. The duty arises when an applicant is unable to protect their belongings, posing a danger of loss or damage, and no other suitable arrangements are in place.

Key points included:

1. Criteria for Duty: The duty to protect belongings is activated if the applicant is subject to specific homelessness duties and there is reason to believe their belongings are at risk due to their inability to manage them.
2. Extent of Duty: The duty covers belongings of both the applicant and anyone reasonably expected to reside with them.
3. Conditions and Charges: Local authorities may impose conditions such as reasonable charges for storage and removal.
4. Termination of Duty: The duty ends when the applicant can protect their belongings or make other suitable arrangements. Notification must be provided to the applicant when the duty ends.
5. Remedies for Non-compliance: If a local authority fails to fulfil this duty, the applicant can challenge this via legal aid, potentially pursuing judicial review if the refusal persists.

By following the outlined procedures and understanding their rights, applicants and advisers can ensure that the belongings of homeless applicants are appropriately protected by local authorities.

Mariam Raza works as a Housing expert in the Expert Advice team at Citizens Advice.

The information in this article is correct as of the date of publication.

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