COVID-19: Criminal Law and Homelessness Part 1
28 Apr 2020
The restriction on leaving and being outside your home
The Coronavirus Restrictions Regulations[i] seriously restrict the exercise of fundamental human rights. The ban on leaving the place where you live without reasonable excuse is possibly the most serious widespread restriction of rights carried out by the modern British state. That restriction is felt more severely by some people than others. Those who live in cramped or overcrowded accommodation, those without gardens, and those who do not feel safe in their accommodation will all be worse off than those in more privileged positions.
However, a rarely noticed feature of the Coronavirus Restrictions Regulations is that some of the restrictions do not apply to those who are homeless. In particular, the regulations prohibit anyone from leaving or being outside of the place where they are living without reasonable excuse,[ii] but this prohibition “does not apply to any person who is homeless”.[iii] An important question is therefore “when is a person homeless”?
Who is exempt from the restrictions on leaving home?
Regulation 6 of the Coronavirus Restrictions Regulations sets out the restrictions on movement in the following way:
“(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.”
However, the Regulations then go on to explain an exception to these restrictions:
“(4) Paragraph (1) does not apply to any person who is homeless.”
So far, so clear. But what does it mean to be homeless? The Coronavirus Restrictions Regulations do not go on to define what homelessness actually means here.
It is not as simple as it appears at first glance. Most people think of homelessness and rough sleeping as being the same, but in fact homelessness in the context of housing law has a much wider definition than merely not having a roof over your head.
A person can have a brick and mortar place in which they live, but still be homeless under the Housing Act 1996. This would include those who are “sofa surfing” i.e. someone who does not have a right to reside in a property by way of any “interest” in the property such as by way of a tenancy or license agreement.[iv]
A person is also considered homeless under the Housing Act if they are unable to get into their accommodation[v] or if their accommodation consists of a moveable structure, like a vehicle or a vessel made or adapted to be lived in, but there is no place to park or moor where they are allowed to live in it.[vi]
Even those who do have accommodation to live in, but not together with any other person who usually lives with them as a member of their family (or any other person who might reasonably be expected to live with them), are considered homeless under the Act.[vii]
There is also the wider definition of homelessness under the Housing Act which includes where an individual does have accommodation but it would not be reasonable for them to continue to occupy this accommodation, for instance where the property is unsafe or uninhabitable.[viii] Examples of this would include in certain instances where an individual’s accommodation is overcrowded or in disrepair.[ix]
This would of course also include victims of domestic violence; the Housing Act explicitly states that it is unreasonable for a person to remain in their accommodation where it is probable that to do so would lead to violence (or threats of violence which are likely to be carried out), whether against them or someone who usually lives with them as part of their family or someone who might reasonably be expected to live with them.[x] Of course, victims of domestic violence are already provided for in the Coronavirus Restrictions Regulations in certain situations.
Whether it is reasonable for someone to continue to live in their accommodation does not depend only on whether it would be unreasonable for them to stay there for one more night. Rather, the law is more forward-looking: it considers the future as well as the present.[xi] Cases interpreting the Housing Act have stated that those who are in temporary crisis accommodation, for instance those staying in a women’s refuge,[xii] as well as those in local authority temporary accommodation provided under sections 188 or 193 of the Housing Act,[xiii] are still considered to be homeless.
How is the law likely to be applied?
Unfortunately, most police officers, and indeed many of those involved in the criminal legal system, may not be familiar with the details of the Housing Act 1996 and the caselaw surrounding its interpretation. Therefore, those in certain housing situations, as well as those advising on the Coronavirus Restrictions Regulations, should be aware of how homelessness is defined in housing law to consider whether they wish to rely on the broader definition in any criminal proceedings.
They should also be aware that, unfortunately, the average police officer looking to make an arrest is unlikely to be aware of this area of law. We have written previously about how you can protect yourself and others from harm by any inappropriate policing.
In Part 2 of this article we consider whether the restriction on gatherings may be used abusively by the police and other state actors, and how this can be combatted.
Stephen Knight
Natalie Csengeri
One Pump Court Chambers
[i] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
[ii] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 6(1) as amended by the Health Protection (Coronavirus, Restrictions) (England) Amendment Regulations 2020 reg 2(4)(a).
[iii] Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 reg 6(4).
[iv] Section 175(1) of the Housing Act 1996, which sets out that when a person does not have an entitlement to occupy the accommodation by way or an interest in it or an order of a court (such as a tenant or leaseholder), an express or implied licence to occupy (as a licensee) or the individual occupies the residence by way of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession (for instance if they have a beneficial interest in the property), they will be considered homeless under the Act.
[v] Section 175(2)(a) of the Housing Act 1996.
[vi] Section 175(2)(b) of the Housing Act 1996.
[vii] Section 176 of the Housing Act 1996.
[viii] Section 175(3) of the House Act 1996.
[ix] R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36
[x] Section 177 of the Housing Act 1996 (as amended by section 10(1) of the 2002 Act)
[xi] R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36 at paragraph 36
[xii] R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36 at paragraph 44
[xiii]R (on the application of Aweys) v Birmingham City Council [2009] UKHL 36 at paragraph 54; R (Alam) v London Borough of Tower Hamlets [2009] EWHC 44 (Admin); Khatun v Newham London Borough Council Legal Action (November 2000), p 22.
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