Transcript 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
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Allocations-a very short introduction.
Issues and pitfalls.
Recent caselaw.
ALLOCATIONS-A VERY SHORT
INTRODUCTION (1)
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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):
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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.
ALLOCATIONS-A VERY SHORT
INTRODUCTION (2)
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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:
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Persons subject to immigration control.
Persons from abroad prescribed in regulations.
Applicants where LHA are satisfied
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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.
ALLOCATIONS-A VERY SHORT
INTRODUCTION (3)
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Every LHA has to have an allocation scheme for
determining priorities and procedure in allocating
housing accommodation (s. 167 (1)).
Scheme MUST:
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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.
ALLOCATIONS-A VERY SHORT
INTRODUCTION (4)
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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).
ISSUES AND PITFALLS
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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.
RECENT DEVELOPMENTS ON
COMMON ISSUES (1)
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‘Eligibility’
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Giving tenants choice
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Abdi v Barnet LBC.
Amendment of regulations to reverse implications Abdi.
Consultation paper on amendments to housing scheme for
choice based lettings.
Making rational distinctions between different bands
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R (Aweys & Others) v Birmingham CC
RECENT DEVELOPMENTS ON
COMMON ISSUES (2)
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Reconciling choice and need
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R (Cali & Ors) v London Borough Waltham Forest
R (Lin) v Barnet LBC
Proper application of published scheme
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R (Bibi) v Camden
R (Sahardid) v Camden
ELIGIBILTY
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The most important cases on this issue will
be covered in Peggy Etiebet’s talk on
immigration issues in housing (later).
GIVING TENANTS CHOICE
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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:
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Should provide choice wherever possible.
Relatively little guidance on reconciling choice and
need.
CONSULTATION PAPER (1)
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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.
CONSULTATION PAPER (2)
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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.
RATIONAL DISTINCTIONS
BETWEEN BANDS
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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.
RECONCILING CHOICE AND NEED
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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.
RECONCILING CHOICE AND NEED
(2)
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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.
RECONCILING CHOICE AND NEED
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CofA
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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.
PROPER APPLICATION OF THE
PUBLISHED SCHEME
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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.
PROPER APPLICATION OF THE
PUBLISHED SCHEME (2)
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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.
THE END
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Any comments from the floor?
Any questions?