The new Labour government has taken swift action to resolve the prisons overcrowding crisis, enacting the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 SI No 844, which will allow certain prisoners to be released after serving 40 per cent of their sentence.

While this action is very welcome, such a radical approach has knock-on effects. Approximately 4,000 people are released from prisons every month. This order takes effect from 10 September 2024 for new sentences, or most previous sentences totalling less than five years. Longer sentences will be impacted from 22 October 2024. In total, this will allow for the rapid release of between around 5,000 and 6,000 additional prisoners, according to its impact assessment (para 33, page 8). Once they step out of the prison gates, where do they go next?

Already, large numbers of prisoners are released into homelessness. In the year ending March 2024, 13 per cent of released prisoners had no accommodation, the highest proportion of rough sleepers since at least 2019.1Housed on release from custody data tables/Accommodation at release from custody, Ministry of Justice (MoJ), 25 July 2024, table 2. Initiatives to prevent this, such as the CAS3 programme, have had no statistical impact.2Accommodation on release statistical release to March 2023, MoJ, 1 June 2023, page 3. A report published by Healthwatch Essex in 2023 found instances of prisoners being released with only a sleeping bag and a woolly hat.3Sharon Westfield De Cortez, Hidden homeless: an exploration of the health, care and wellbeing needs of prisoners, prison leavers and ex-offenders in Essex, Healthwatch Essex, August 2023.

Homelessness is a scourge in itself. But even viewed purely from a policy point of view, releases to homelessness do nothing to resolve the prisons crisis. Up to two-thirds of homeless prisoners reoffend and return to custody.4Amy Walker, ‘Two-thirds of homeless ex-prisoners reoffend within a year’, Guardian, 12 August 2019. A report by HM Inspectorate of Probation in 2020 found ex-prisoners intentionally returning to prison to access support networks.5Accommodation and support for adult offenders in the community and on release from prison in England: an inspection by HM Inspectorate of Probation, July 2020, pages 40–41. Such support is critical: research by the Prisons and Probation Ombudsman found that a third of those who died within two weeks of release from prison were homeless.6Learning Lessons Bulletin issue 19: post-release death investigations 2, Prisons and Probation Ombudsman, July 2024, pages 1 and 8.

Such releases are both the cause and the consequence of the prisons crisis, with overworked prison administrations unable to coordinate with other services – something amplified already by other early release schemes.7Andy Gregory, ‘Number of prisoners released into homelessness rises by a third in a year, despite new government scheme’, Independent, 3 August 2024.

Housing applications pose the first problem. Prisons are subject to the ‘duty to refer’ for prisoners threatened with homelessness within the next 56 days (Housing Act 1996 ss175(4) and 213B).8See also Homelessness Reduction Act: duty to refer policy framework, MoJ/HM Prison and Probation Service, 9 April 2021; last updated 11 October 2023. Such referrals are not homelessness applications, but local authorities should always respond to them.9Homelessness code of guidance for local authorities, Ministry of Housing, Communities and Local Government, 22 February 2018; last updated 10 June 2024, para 4.20. Nonetheless, many local authorities require custodial applicants to attend their office on the day of release, to seek emergency housing.10Learning Lessons Bulletin issue 19: post-release death investigations 2, ibid, page 10.

Second, access to the main housing duty requires meeting the three standard criteria of homelessness, eligibility and priority. Prisoners, unlike other applicants, have an additional route to proving priority need. Homelessness (Priority Need for Accommodation) (England) Order 2002 SI No 2051 article 5(3)(a) gives priority need to those ‘vulnerable as a result of having served a custodial sentence’.

When this provision is activated is unclear. Johnson v Solihull MBC [2013] EWCA Civ 752; July/August 2013 Legal Action 22 saw such an application rejected, as the claimant was not vulnerable, in part, due to not being ‘institutionalised’ (para 28). The suggestion that this provision would only apply to long-term prisoners was not disputed on appeal.11A further appeal on different grounds was rejected in the conjoined decision of Hotak v Southwark LBC; Kanu v Southwark LBC; Johnson v Solihull MBC [2015] UKSC 30; July/August 2015 Legal Action 50. The Homelessness code of guidance, however, states that the length of time in custody is relevant but not determinative – a case-by-case assessment is key.12Homelessness code of guidance for local authorities, ibid, para 23.21.

The third hurdle faced by custodial applicants is ‘voluntary homelessness’. Case law has held prisoners to be voluntarily homeless if they lose their accommodation as a result of their convictions (R v Hounslow LBC ex p R (1997) 29 HLR 939). Indirect consequences, such as losing housing benefit while imprisoned, suffice (Minchin v Sheffield City Council (2000) 4 April, CA (Civ); (2000) Times, 26 April). The clear policy arguments in favour of providing ex-prisoners with access to accommodation (and rehabilitation) have been rejected by the courts (R v Hounslow LBC ex p R at paras 28–29).

However, this hurdle can be surpassed. Local authorities may not adopt a blanket policy here.13Homelessness code of guidance for local authorities, ibid, para 23.24. A close examination of the chain of causation can pay dividends. In one case, an applicant whose conviction stopped him paying rent was nonetheless involuntarily homeless, as his landlord took possession without a court order (Wilkins v Barnet LBC December 1998 Legal Action 27, Watford County Court).