Housing Solicitors

By Erol Izzet

Introduction

The localism bill received Royal Assent on 15 November 2011 and is now known as the Localism Act. Housing is one of the key areas affected by the Act.

Part 7 will introduce a number of changes to current housing legislation. The provisions of the Act relating to homelessness and the allocation of social housing will be brought into force in stages. LA Part 7 ss145 – 147 will amend the law on the allocation of social housing whilst ss148-149 amends the law on homelessness. These are currently contained in Part 6 and Part 7 of the Housing Act 1996, respectively.

Glynn Robbins writing in the Guardian [www.guardian.co.uk/commentisfree/2011/may/18/localism-bill-social-housing] warned about the effects of the Act and said this:

“..,while the outcome of some of these reforms is uncertain, the most concrete impact of the bill will be felt by housing association and council tenants and the homeless. In the name of “flexibility” the government wants to force people out of their affordable rented homes after two years if they “no longer need it”. The bill will also allow councils to restrict access to housing waiting lists, thus reducing the figures for housing need by massaging the numbers. In a triple whammy, localism will also allow councils to house homeless families in the unregulated private rented sector.”

At Duncan Lewis a great many of our clients, in the Housing Department, come from precisely the group of people Glynn Robbins believes will be adversely affected by these changes. They comprise existing social tenants and others in housing need. It is therefore necessary to understand the affect of the proposed changes for these groups of people.

HOMELESSNESS

The Explanatory notes to the Act states
Section 148 and 149: Duties to homeless persons
372. Section 148 enables a local authority in England or Wales fully to discharge the main homelessness duty to secure accommodation with an offer of suitable accommodation from a private landlord, without requiring the applicant’s agreement. Tenancies must be for a minimum fixed term of 12 months.
373. Section 149 provides that the main homelessness duty will recur, regardless of whether the applicant has a priority need for accommodation, if the applicant becomes unintentionally homeless again within 2 years of accepting a private sector offer and re-applies for accommodation.

The effect of these provisions coming into force is that an offer of suitable private sector accommodation will end the main housing duty (HA 1996 s193(2)) for homeless applicants who had been accepted as being owed this duty.

At present pursuant to s193 (7B-7E) HA 1996 a homeless applicant owed the full housing duty (in cases other than what are known as ‘restricted cases’) can be made an offer of private rented sector accommodation by way of a “qualifying offer”. It would be an offer of a 12 month fixed term AST in the private sector. However, if the applicant rejects this “qualifying offer”, there is no sanction for refusal in that there is no risk that the homelessness duty can come to an end by that refusal. This is to be repealed by s148(8) LA.

The policy justification is that homeless applicants, who currently remain in expensive temporary accommodation often for a very long time, will spend less time in such accommodation by making more use of the private rented sector. The sanction of having full housing duty come to an end will, it is hoped, stop applicants rejecting suitable private sector accommodation and this will in turn reduce the use of expensive temporary accommodation.

There is of course a real likelihood that greater use of the private sector to deal with homeless applicants will lead to greater numbers of homeless applications if after the tenancy comes to an end it is not renewed and this forces the applicant to make a repeat application for homelessness. This has been termed the ‘revolving door’ of homelessness. In response to this fear, any applicant having accepted an offer of private sector accommodation for the purposes of bringing homelessness duty to an end, will continue to be owed the main housing duty if they make a fresh application within two years – without the applicant being required to prove priority need. Furthermore, they will be deemed homeless when repossession is sought and not, at the point of eviction.

The use of private sector accommodation to make offers to bring the homelessness duty to an end will be optional for local authorities. Applicants will continue to have the right to request a review of the suitability of a private rented sector offer 9HA1996 s202(1)(g) as amended by LA s149(9)).


ALLOCATION OF SOCIAL HOUSING
Historical Context
The current principles governing an allocation of social housing are found in Part 6 of the Housing Act 1996, which has been amended by the Homelessness Act 2002 and the Housing Act 2004. In 2003 the definition of ‘allocation’ was extended to include all transfers except ‘management transfers (i.e. those initiated by the landlord). It created a situation whereby tenants seeking a transfer were to be treated in the same way as applicants seeking their first Council home. Homeless clients who had been placed in temporary accommodation following acceptance of full housing duty were on the same list competing under the same scheme as existing secure tenants wanting to be transferred into another Council property, for example, due to overcrowding. There was an assessment that needed to be carried of all such applicants to determine whether they should be given “reasonable preference”.

Localism Act changes
Sections 145 – 147 LA will change the provisions in Part 6 of the Housing Act 1996, which deals with the allocation of housing.

At present when a local authority allocates housing, it is required to comply with the requirements of Part 6 but can otherwise allocate housing accommodation in such manner as it considers appropriate. The current definition of an allocation is contained in section 159 of the 1996 Act, which provides that in allocating housing accommodation local housing authorities must comply with Part 6 of the 1996 Act: It reads

“(2) For the purposes of this Part a local housing authority allocate housing accommodation when they—

(a) select a person to be a secure or introductory tenant of housing accommodation held by them,
(b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord.

(3) The reference in subsection (2)(a) to selecting a person to be a secure tenant includes deciding to exercise any power to notify an existing tenant or licensee that his tenancy or licence is to be a secure tenancy.
(4) The references in subsection (2)(b) and (c) to nominating a person include nominating a person in pursuance of any arrangements (whether legally enforceable or not) to require that housing accommodation, or a specified amount of housing accommodation, is made available to a person or one of a number of persons nominated by the authority.
(5) The provisions of this Part do not apply to an allocation of housing accommodation to a person who is already a secure or introductory tenant unless the allocation involves a transfer of housing accommodation for that person and is made on his application.

Section 145 of The Localism Act amends the definition of ‘allocation’ by adding two new sub sections (4A & 4B) and the combined effect is to take out the majority of existing social tenants (in England, as provisions not applicable in Wales) seeking a transfer, from the scope of Part 6 of the 1996 Act i.e. secure tenants, introductory tenants and assured tenants of a private registered provider of social housing or of a registered social landlord.

New subsection 4A and 4B

These are inserted into the definition of an allocation of housing accommodation.
The effect of 4A – A letting to a person who is already a social housing tenant holding a secure or introductory tenancy with another social landlord, will not count as an allocation of social housing – so will fall outside of the allocation scheme
The effect of 4B – Maintains the existing allocation scheme requirements for tenant initiated transfer applications where the tenant falls into a ‘reasonable preference’ category.

The effect of these new sub sections is that many existing social tenants seeking a transfer will no longer be within the scope of Part 6 unless they apply for a transfer and the local authority is satisfied that they are persons who must be given reasonable preference for an allocation (i.e. people who are homeless, owed specified duties under homelessness legislation, living in unsatisfactory housing conditions, need to move on medical grounds, or need to move to a particular locality to avoid hardship). Non priority transfer applicants are therefore to be excluded from allocation schemes and the reasonable preference categories are maintained.

Access to the Allocation Scheme Historical Context
The present scheme of allocating housing, means that ‘persons from abroad’ (as defined by the legislation) are not eligible. Secondly, an individual applicant can only be excluded as a result of his /her unacceptable behavior, or that of his /her household (HA 1996 S160A) and blanket exclusions are prohibited.

Localism Act changes
The Localism Act amends Housing Act 1996 Part 6 in England. Section 146 will introduce section 160ZA called “Allocation only to eligible and qualifying persons; England”. This will allow a local housing authority to decide what classes of persons are, or are not, qualifying persons. A local authority will be able to allocate housing to any qualifying person.

The consequence of this change is that either applicants will be in a class capable of joining the particular local housing allocation scheme or they will not, depending on the classes of person identified by the particular local housing authority. Local authorities will be able to exclude whole classes of applicants, for example all applicants in rent arrears regardless of the particular circumstances of the individual. Local authorities ill be able to have a policy of giving priority to people who are in employment, or actively seeking work.

Conclusion
No one has a right to a house. The most a person has is to have his application for a house properly considered in accordance with a lawful allocation policy. Local authorities continue to be required to have an allocation policy, which applies to selecting tenants for their own housing or nominating people for housing held by others. These changes will affect how applicants are to be assessed for an allocation of housing. Since it is likely that each local authority will make changes to its allocations scheme, it will be necessary for us to advise clients who have already applied or are applying for housing as to the changes. The opportunity for mounting legal challenges on behalf of clients will be when clients have been adversely affected by how the changes have been implemented or how the local policies have been administered.