I have edited the introductory paragraphs of this post to put it in context a little more clearly. I have not altered the body; no-one has yet responded to indicate that anything in it is factually or legally wrong.
The post is critical of the operation of services for rough sleepers by Brighton & Hove City Council over the winter of 2017-18. The context is that the Council has improved its services over those offered in previous years, and that the services it does provide are (it is said – I have not researched this) considerably better than those of neighbouring authorities in the South-East. In particular, the Severe Weather Emergency Protocol (SWEP) has been operated this winter more generously than it might have been.
However, what we have remains (as many have said) profoundly unsatisfactory. I’m going to set out the current state of play and some suggestions for improvement. I welcome comment, and especially welcome any corrections on the facts.
I want to start by objecting to an attitude that seems common amongst (some of) our councillors and officers. The opening of the emergency shelter under SWEP is sometimes presented as an enormous effort, selflessly undertaken by overstretched staff; something, we are left to infer, for which rough sleepers should be grateful. It may be that an enormous and selfless effort is needed to open it – if so, that is a serious indictment of the council; it should protect the working conditions of those who carry out its functions. There is no justification for all this; it stinks of charity.
It is sometimes said that there is no legislation requiring SWEP, just guidance. The government, I understand, makes some financial contribution towards local authorities’ provision, and of course the government endorses the guidance issued by Homeless Link (see below) – but it is only guidance, we are told, our council doesn’t have to do anything, it is out of the goodness of its heart that it does so. Charity, again.
Let us be clear. Local authorities are under duties to ensure that no-one should suffer or die unnecessarily in their area.
There are statutory duties (the Care Act 2014, the Mental Capacity Act 2005, the Children Act 1989, the Housing Act 1996), there are arguably common law duties, and overriding these there are duties under the Human Rights Act 1998. I shall concentrate on these last, as everyone (not just lawyers) has a stake in human rights, and as human rights do not permit exclusions; the council’s duty to act in compliance with the European Convention on Human Rights (“the Convention”) does not take account of immigration status or local connection or anything else; it is owed to everyone.
Article 2 of the Convention is the right to life: “Everyone’s right to life shall be protected by law.” More specifically it requires the state to take appropriate steps to prevent accidental deaths by having a legal and administrative framework in place to provide effective deterrence against threats to the right to life[i]. SWEPs are about preventing loss of life; they form part of the state’s discharge of its responsibilities under this article.
Article 3 is the prohibition on torture or inhuman or degrading treatment – in any circumstances. It also requires that public authorities take steps to prevent torture and ill-treatment. In the context of earlier governments’ attempts to create a hostile environment for immigrants by forcing them to starve on the streets, the House of Lords has said that there is a breach of Article 3 when an individual faces an imminent prospect of serious suffering caused or materially aggravated by a denial of shelter, food or the most basic necessities of life[ii]. That applies to most rough sleepers and places an obligation on the local authority to remedy the breach.
Article 8 requires the state (and the council to have respect for the private and family life, home and correspondence of everybody, with no exclusions. This, with its central requirement to protect people’s dignity, applies to almost every part of the facilities provided to the homeless.
When the local authority operates SWEP, it is or should be acting to comply (among other things) with these Convention Rights. It is a matter of right and duty, not a matter of charity at all. Gratitude is not appropriate; outrage may be.
The Protocol and the Guidance
The SWEP protocol in use at the start of winter[iii] specified that shelters would be opened in the event that the (Meteorological Office) weather forecast for Brighton specified temperatures of zero or below for two or more nights, and that opening the shelters would be considered if there was an amber weather warning. It also stated that it has been drawn up within the provisions of the (government-sponsored) Homeless Link Guidance. During the first very cold period of this winter, in the second half of November, SWEP was not activated; the forecast temperatures stayed a little above zero. But strong, icy north winds flayed everyone who went outside, and the “feels like” temperature, which measures wind chill and is in many ways a better guide to danger to life, was several degrees below zero.
The Homeless Link Guidance[iv], it emerged, had that year abandoned this sort of “bright line” rule for “a flexible approach, based on empathy for people sleeping rough in severe weather, rather than a fixed approach ….” Instead of the three days guideline, “we recommend that a common sense approach is taken – near freezing temperatures or the impact of rain, snow and wind chill should also be considered.” … “Please note that SWEP should be used to prevent death at all times, not only when a fixed temperature threshold is reached. Local Authorities should consider factors such as wind chill, snow coverage and duration of extreme weather when looking at provision. The protocol aims to prevent deaths on the streets so, if this means increasing the number of beds and opening for longer, the Local Authority should do everything it can to facilitate SWEP and prevent harm” (page 6).
This was not a sudden development; as Tasmin Maitland, Head of Innovation and Good Practice at Homeless Link told me, “we’ve been encouraging local authorities to move towards more flexible triggers for a number of years.” Unfortunately this encouragement had not reached our council.
Following a great deal of public pressure from homelessness activists and an emergency motion passed by Hove CLP, we were told that the Protocol had been amended (but see below) and was being operated more flexibly. On 27 January councillor Clare Moonan, Labour lead on rough sleeping, reported back formally on the emergency motion as follows: “As a result of this the SWEP policy was revised to take into account the full Homeless Link Guidance including wind chill, which took effect immediately. I then ensured the policy guidance paper was updated to reflect this. I believe many activists and members have acknowledged this greater flexibility in the operation of the SWEP.”
Nevertheless, there have been several occasions when it seemed obvious to everybody that the shelters should be open and yet they were not; one example being the night of 14/15 February, when following freezing weather a storm produced heavy, wind-swept rain, followed again by very cold weather the next night (when the shelters were also closed). This does not seem like “a flexible approach, based on empathy for people sleeping rough in severe weather”.
There is an informal steering group on rough sleeping with meetings regularly attended by councillors, officials, officers from BHT and St Mungos, and housing activists; I am a member. Since it was first announced that changes had been made, we have been pressing to see this revised Protocol. It was finally supplied to us on 8th February. The change from the old Protocol consists essentially of a single added sentence:
Throughout the year a common sense approach will be taken to activating the SWEP at other times, to include the impact of severe rain, snow and wind chill.
I am extremely disappointed by this. There is not a single additional commitment made; just the weakest possible repetition of a small part of the National Guidance. Clare Moonan had said publicly that the guidance had been extended to include yellow warnings as well as amber; even that commitment was missing. In short, all is left to the discretion of officers. This leads us straight to the next issue.
The SWEP protocol was not and still is not available on the council’s website. It took two months from the announcement of a change in policy to provide the revised Protocol – which looks as though it was worked out in 5 minutes in someone’s coffee break. These facts are symptomatic.
The protocol states that BHT (the Brighton Housing Trust) and St Mungos are responsible for taking the decision to activate it; but that in addition senior council officers[v] can do so. It is right that ultimate responsibility rests with the Council, as the duties under the Human Rights Act and other legislation are their duties, by whatever means they implement them. However, on 15th February Jenny Knight, one of the senior officers with the power to activate the Protocol, stated on Facebook: “I do not personally make the decision it is one taken with the SWEP providers in line with the protocol agreed at the beginning of the winter.” This is not the first time that BHCC officials have taken this line in the face of public pressure.
This is the outsourcing of essential council functions used as a cloak to avoid accountability. It does not matter how the council chooses to exercise its functions, but it remains entirely responsible for the outcome. That is good human rights law and it is good democracy.
Extended Winter Provision
The answer to all this shameful chaos must be the provision of shelters throughout the winter, or throughout the year as our campaigners demand. The National Guidance seeks to encourage the use of Extended Winter Provision, shelters open without regard to specific weather conditions, and notes that some local authorities do this already; it lists major advantages to such provision:
- Prevents death on the streets;
- Allows longer-term engagement to provide sustainable move-on;
- More stable for staff, volunteers and people using the service;
- Capitalises on any increased desire to engage from rough sleepers during cold weather.
I would add one more: it makes much clearer to everybody that this is a right, not a privilege.
Our normal provision for homeless people is subject to exclusions that can operate cruelly. One is the local connection requirement, enforced fiercely by this council. Another is the invention of successive governments seeking to create a hostile environment for asylum seekers and “unlawful” immigrants, who are barred from access to most public services. SWEP does not operate any such exclusions; nor, I suggest, should the extended provision. The Mayor of Liverpool has shown the way by refusing to apply the immigration related exclusions in the winter shelter provided[vi]. The National Guidance also encourages this and the human rights obligations on our council, above, make no such distinctions.
However, my understanding is that the new Night Shelter for 30 people opened by our council this year, the Brighton Centre Night Shelter (which is in addition to and separate from the SWEP shelters), has not housed anyone without a local connection and that the immigration exclusions are also applied. Admittedly only a small proportion of rough sleepers are accommodated there but I would urge the council to operate its shelters more generously.
Clare Moonan has written that “I will be working with officers to evaluate the 17/18 winter emergency provision, including SWEP and the night shelter, and we will develop plans for next winter.” As part of this evaluation, let us acknowledge how inadequate the present system is. In the long term, at least, the goal must be:
- to bring services in house where there can be proper accountability;
- to open shelters throughout the winter that are sufficient for all our rough sleepers, whatever their immigration status or situation, so that no-one at all need sleep rough in Brighton.
And before next winter, let us see, published on the council website, at the very least a SWEP that reflects the humane words set out in the national guidance.
[i] The phrasing describing this and subsequent rights is taken from the Liberty website.
[ii] R(Limbuela) v SSHD,  UKHL 66.
[v] BHCC ASC Commissioning Managers with Rough Sleeper Lead; BHCC Head of Adult Social Care Commissioning; BHCC Executive Directors or Chief Executive.