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ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE

ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE. By: David Matthias QC and Clare Parry 2-3 Gray’s Inn Square. OUTLINE. Allocations-a very short introduction. Issues and pitfalls. Recent caselaw. ALLOCATIONS-A VERY SHORT INTRODUCTION (1). Provisions found in Part VI of the Housing Act 1996.

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ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE

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  1. ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE By: David Matthias QC and Clare Parry 2-3 Gray’s Inn Square

  2. OUTLINE • Allocations-a very short introduction. • Issues and pitfalls. • Recent caselaw.

  3. ALLOCATIONS-A VERY SHORT INTRODUCTION (1) • Provisions found in Part VI of the Housing Act 1996. • Supposed to be ‘single route into social housing’ (Hansard,1996). • LHA have to comply with provisions Part VI when (s. 159): • Selecting person to be secure/introductory tenant their accommodation. • Nominating a person to be secure/introductory tenant accommodation held by another person • Nominating person to be assured tenant housing accommodation held by RSL.

  4. ALLOCATIONS-A VERY SHORT INTRODUCTION (2) • Number of exceptions where don’t have to comply with Part VI, set out in s. 160. • LHA’s may ONLY allocate to eligible persons (s. 160A). Persons not eligible are: • Persons subject to immigration control. • Persons from abroad prescribed in regulations. • Applicants where LHA are satisfied • they (or member household) has been guilty unacceptable behaviour serious enough to make them unsuitable to be tenant authority AND • In circumstances at time of application they are unsuitable to be a tenant by reason of that behaviour.

  5. ALLOCATIONS-A VERY SHORT INTRODUCTION (3) • Every LHA has to have an allocation scheme for determining priorities and procedure in allocating housing accommodation (s. 167 (1)). • Scheme MUST: • Include statement on offering applicants choice/opportunity to express preference. • Give reasonable preference to people defined in s. 167 (2)-includes homeless, people in unsatisfactory housing, people with medical/disability grounds for needing to move.

  6. ALLOCATIONS-A VERY SHORT INTRODUCTION (4) • Scheme MAY give additional preference to people on basis factors in 167 (2A). • The scheme must be published (s. 168). • The LHA must have regard to the Code of Guidance published November 2002 (website address in notes).

  7. ISSUES AND PITFALLS • Who are ‘eligible persons’. • How to give tenants a choice/allow them to express reasonable preference. • Making rational distinctions between people in different bands. • How to reconcile housing need and a choice based lettings scheme. • Ensuring published scheme properly applied in individual case.

  8. RECENT DEVELOPMENTS ON COMMON ISSUES (1) • ‘Eligibility’ • Abdi v Barnet LBC. • Amendment of regulations to reverse implications Abdi. • Giving tenants choice • Consultation paper on amendments to housing scheme for choice based lettings. • Making rational distinctions between different bands • R (Aweys & Others) v Birmingham CC

  9. RECENT DEVELOPMENTS ON COMMON ISSUES (2) • Reconciling choice and need • R (Cali & Ors) v London Borough Waltham Forest • R (Lin) v Barnet LBC • Proper application of published scheme • R (Bibi) v Camden • R (Sahardid) v Camden

  10. ELIGIBILTY • The most important cases on this issue will be covered in Peggy Etiebet’s talk on immigration issues in housing (later).

  11. GIVING TENANTS CHOICE • Idea comes from 2000 Green Paper-idea was to address limitations of points based systems and allow people to self define ‘felt needs’. • Current guidance: • Should provide choice wherever possible. • Relatively little guidance on reconciling choice and need.

  12. CONSULTATION PAPER (1) • Will form new code of guidance for choice based lettings. • Will supplement existing code. • Every LHA should have choice scheme by 2010. • Equates CBL with advertising scheme. • CBL should extend as far as possible to all applicants and all types of accommodation. • Eligibility and priority to be determined both at point entry into scheme and point allocation.

  13. CONSULTATION PAPER (2) • More detailed guidance on reconciling choice and need. • Confirms R (A) v Lambeth-cannot rely just on self assessment to determine housing need. • Cautious preference for banding system. • Simple banding systems only suitable for areas of low demand. • Otherwise need more complexity in banding systems. • Against backdating. • Cautious about use of time limited priority cards-would prefer use of increased numbers of bands. • A lot of discussion of ensuring adequate attention given to cumulative needs in reconciling choice and need.

  14. RATIONAL DISTINCTIONS BETWEEN BANDS • R (Aweys) v Birmingham CC • High Court. • Allocation scheme-homeless in temporary accommodation in band A, homeless at home in band B. • Collins J-no rational basis for making this distinction. • Scheme unlawful.

  15. RECONCILING CHOICE AND NEED • R (Cali & Others) v LB Waltham Forest • 3 band scheme: no preference, reasonable preference, additional preference. • Applicants said scheme failed to take account cumulative needs. • Lloyd Jones J, allocation not a precise science and local authorities have discretion. • Still have to ensure reflect cumulative needs. • Scheme failed to do so because couldn’t be promoted from reasonable preference due to cumulative needs, and priority within reasonable preference just determined by waiting time. • Scheme NOT saved by self-definition of need within bands.

  16. RECONCILING CHOICE AND NEED (2) • R (Lin) v Barnet LBC • Complex points based choice system. • Homeless in temporary accommodation given 10 points-contrast eg transfer applicants given 100 points. • When lease temporary property come to end get 300 points (not clear for how long etc) • Deliberate policy choice by Barnet. • HC-policy automatically giving transfer applicants 100 points illegal.

  17. RECONCILING CHOICE AND NEED (3) • CofA- • Scheme still gave homeless ‘reasonable preference’ even if as matter reality they could never get accommodation. • Barnet entitled to consider resources in determining reasonable preference. • Scheme can give preference to people without statutory preference provided do not dominate scheme. • Scheme illegal on limited basis not clear for how long etc got 300 points at end of lease.

  18. PROPER APPLICATION OF THE PUBLISHED SCHEME • R (Bibi) v Camden LBC • Separated parents. • Allocated father property with sufficient room for children. Refused mother 3 bed property. • Decision quashed-had failed to apply own allocation policy which required them to consider whether children in her family or part of her household.

  19. PROPER APPLICATION OF THE PUBLISHED SCHEME (2) • R (Sahardid) v Camden LBC • Camden accepted owed S primary homelessness duty. • Maintained one bed flat appropriate under their allocation scheme. • On review had failed to take into account S’s son now over 5 so even under own scheme it was not suitable. • Decision quashed.

  20. THE END • Any comments from the floor? • Any questions?

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