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Published 22 Mar 2021

High Court rules councils can accommodate rough sleepers with no recourse to public funds during the Covid-19 pandemic

Now the legal basis for providing support is clear, more assistance is needed to help councils end homelessness when people are ineligible for benefits.

In the judgment of Ncube v Brighton and Hove City Council, the High Court clarifies which legal powers enable councils to provide emergency accommodation on public health grounds to people who are ineligible for homelessness assistance due to their immigration status - a question that has needed answering since the Government announced the ‘Everyone In’ strategy to protect lives and reduce public health risks during the Covid-19 pandemic.

Why is the judgment important? 

Through ‘Everyone In’, councils in England have accommodated 37,430 people who were rough sleeping or at risk of rough sleeping, including those with no recourse to public funds. The total number of people accommodated in England through 'Everyone In' who do not have access to public funds is unknown, although the National Audit Office reports that 2000 people accommodated in hotels in London in September 2020 were ineligible for benefits.

In the months following the Government’s initial instruction to accommodate everyone, regardless of immigration status, councils were advised that housing eligibility rules had not changed and that they must act within the law when offering support to non-UK nationals who are ineligible for homelessness assistance, by making judgments on an individual basis. The Government did not provide further information about which legal powers could be relied upon by a council to provide accommodation, with social services' support only available to destitute families and adults with care needs. 

This apparent narrowing of government guidance led to the National Audit Office reporting that ‘some local authorities responded to this by taking a tougher line on or ceasing to take in new rough sleepers who were ineligible for benefits, and by seeking to move on those already in emergency accommodation’.

The Judgment therefore provides much needed clarity about the legal basis for supporting people who are ineligible for benefits and assistance under Part VII of the Housing Act 1996 whilst the pandemic continues to present a risk to life and public health. 

What were the grounds for the legal challenge? 

The Judicial Review was brought by Mr Ncube, an Appeal Rights Exhausted (ARE) asylum seeker, following the council’s refusal to provide him with accommodation on the basis that it had no legal power to do so and that he was able to access section 4 asylum support from the Home Office. Mr Ncube had initially been advised by Migrant Help that he did not qualify for section 4 support and had not applied for this at the time he approached his council for assistance in September 2020, when Brighton was subject to tier one restrictions. Mr Ncube was eventually provided with section 4 accommodation, following a reconsideration of a decision by the Asylum Support Tribunal. His asylum support claim was initially refused by the Home Office and his first appeal to the Tribunal had been dismissed. As Mr Ncube was accommodated by the Home Office in another area by the time of the hearing, the Judge limited his consideration to the question of whether the Council did in fact have powers it could have relied upon to accommodate Mr Ncube when he had been homeless.

What did the Court decide? 

The Judge found that, in order to save lives by alleviating the effect of the Covid-19 pandemic through the ‘Everyone In’ scheme, or a successor initiative, a council can rely upon the following powers to accommodate a person with no recourse to public funds:

  • Section 138 of the Local Government Act 1972 – powers that, in the context of an emergency involving danger to life affecting the street homeless, enable a council to take action to provide accommodation to avert, alleviate or eradicate the effect of Covid-19. 
  • Section 2B of the National Health Service Act 2006 – a duty that is capable of permitting the provision of temporary accommodation by a council as a step for improving the health of the people in the area.

The Judge did not specify how these powers should be applied when they are engaged, although did confirm that alternative accommodation options may be considered.  

The Judge also found that the general provision of section 1 of the Localism Act 2011 cannot be used where there is no other statutory basis to provide accommodation, a decision taken in line with two previous High Court decisions, and that it remains the responsibility of the Home Office to accommodate an Appeal Rights Exhausted (ARE) asylum seeker when the criteria for section 4 support are met.

For more information, see our factsheet on supporting people with no recourse to public funds during the Covid-19 pandemic.

What does this mean for councils?

Whilst Covid-19 remains a public health emergency, a council must consider using its powers under section 138 of the Local Government Act 1972 and section 2B of the National Health Service Act 2006 to provide accommodation when a person who is homeless is ineligible for Part VII assistance. Accommodation cannot be refused on the basis that a council does not have legal powers to support a person who has no recourse to public funds. 

When making a decision to provide support, the Council is entitled to consider what other accommodation options the person may have, such as Home Office asylum support. However, if alternative support has been identified but cannot be immediately accessed, accommodation can be provided by the Council as an interim measure using these powers.

The judgment does not address a council’s ongoing responsibilities to accommodate people with no recourse to public funds when the pandemic no longer gives rise to a public health emergency - a question that has been raised by many councils due to the difficulties achieving an expedient transfer to longer-term accommodation for people who remain excluded from benefits by their immigration status. 

What can government do to assist councils?

Councils have taken on significant financial risk by accommodating rough sleepers who have no recourse to public funds during the public health emergency, as such intervention usually leads to long-term support costs. Where complex immigration matters need to be addressed, and when certain groups with leave to remain continue to be excluded from accessing benefits, such as EEA nationals with pre-settled status who are unable to work, many people who have been provided with emergency accommodation face difficulties moving on to longer-term housing. 

As the High Court has now clarified any doubts about the ability of councils to lawfully provide accommodation to homeless people with no recourse to public funds whilst the public health emergency is ongoing, the Government must fully fund support for all individuals until a change in immigration status, access to employment and/or benefits, or a voluntary return is achieved. Immigration claims need to be decided expediently to reduce the risk that people will remain in need of emergency accommodation beyond the pandemic, and applications for asylum support need to be processed in a timely way to avoid a council incurring costs for supporting people when this is the responsibility of the Home Office. There is also a need for government guidance to set out when and how the powers specified by the Court are to be applied, in order to assist local decision making and reduce any risks of significance divergence in interpretation, particularly as social distancing restrictions are eased.

The recent recommendation made by the Public Accounts Committee, that ‘[MHCLG] should publish details of its agreed plans with the Home Office to address rough sleeping and immigration issues together, and provide clear guidance to local authorities on what this means for the support they offer this cohort, including those staying in hotels under Everyone In’, is welcome and we hope will be implemented in order to address these issues. The Government must also ensure that other protections, such as the suspension of asylum support evictions for people with negative Home Office decisions, are retained whilst the pandemic continues to give rise to public health risks, otherwise the burden of providing support to such groups could shift directly to local government.