HLPA General Meeting Jan Luba QC

19 November 2003 2 Garden Court

HOMELESSNESS ACT 2002

ALLOCATIONS

1.New Housing Allocation Rules for England

On 31 January 2003 the provisions of Part 6 Housing Act (HA) 1996 (Allocations), as they apply in England, were substantially amended by the Homelessness Act 2002 (ss13-16).

For a fuller outline of the changed “Allocation landscape” than can be given in these notes see February 2003 Legal Action 32.

The 2002 Act was not the only new bit of allocations law. The Allocation of Housing (England) Regulations 2002 SI 3264 came into force on the same date. They:

  • prescribe circumstances in which the provisions of Part 6 do not apply
  • deem eligible for allocation some categories of persons from abroad
  • disqualify, as “ineligible”, other categories of applicant.

The new Allocation of Accommodation: Code of Guidance for local housing authorities (November 2002 edition), giving the ODPM’s statutory guidance on the new regime, is available to download at or you can order a copy from ODPM publications at 0870 1226 236. [Also reproduced in the Ency. Housing Law Vol 5 @ 4-4367.]

2.New Housing Allocation Rules in Wales

In Wales, the allocations provisions of the Homelessness Act 2002 were brought into force on 27 January 2003.

In cases involving applications to Welsh authorities, the statute must be read together with the Allocation of Housing (Wales) Regulations 2003 SI 239which came into force on 29 January 2003.

There is a loose-leaf Code of Guidance in Wales covering both Homelessness and Allocations. Copies from Ann Thomas at 029 2082 6943 or e-mail her at .

3.The Main Changes made by the 2002 Act

A.Transfer cases

HA 1996 s159 (allocation of housing accommodation) has been amended so as to include secure tenants seeking transfers of accommodation within local authority allocation schemes.

B.Eligibility for allocation of housing accommodation

A new s.160A has been inserted dealing with eligibility. Two classes of persons are now NOT eligible for allocation:

(a) those from abroad (unless made eligible by regulations made by the Secretary of State) and

(b) those whom the authority decides to treat as ineligible by virtue of unacceptable behaviour.

Persons from abroad. These are persons subject to immigration control, within the meaning of Asylum and Immigration Act 1996, who are not eligible unless within a class prescribed by regulations made by Secretary of State (s.160A(3)). Regulation 4 of the Allocation of Housing (England) Regulations 2002 No. 3264 (above) prescribes the eligible categories.

Considerable guidance on the operation of the “immigration” eligibility test is given at at paras 4.2 – 4.18 and Annexes 4 – 12 of the Code (paras 3.3 – 3.13 and Annexes 4 – 15 of the Welsh Code).

On 1 April 2003 “humanitarian protection” and “discretionary leave” were introduced to replace the “exceptional leave to enter” provisions referred to in the Regs. On 25 March 2003 the ODPM wrote to all local housing authorities with guidance on the impact of this change on eligibility for assistance under the Act. A copy of the letter can be downloaded from:

Existing secure or introductory tenants or assured tenants remain eligible irrespective of their immigration status.

Persons who the authority have decided are to be treated as ineligible for allocation (s.160A(1)(b)). To “disqualify” an applicant a three-stage test must be satisfied:

- The person or a member of the person’s household has been guilty of unacceptable behaviour serious enough to make him or her unsuitable to be a tenant of the authority;

- The behaviour of the person or a member of the person’s household would entitle the authority to a possession order (the Code advises this should not be a suspended possession order para 4.22(ii)); and

- In the circumstances at the time of the application, the person is unsuitable to be a tenant of the authority by reason of the behaviour.

Guidance is given at Code paras 4.19 - 4.27 (or 3.14 – 3.21 Welsh Code). NB the Welsh Assembly Government’s view that barriers to social housing should be “minimised”.

An applicant is entitled to be notified in writing of any decision that he or she is ineligible and the grounds for it (s.160A(9)).

C.Procedures for Applications

Under modified HA 1996 s166, advice and information is to be made available, free to charge, to persons in the authority’s district about the right to make an application for allocation and any necessary assistance is to be made available free of charge to persons likely to have difficulty in making applications without assistance (s.166(1)).

The applicant has the right to request the authority to give notice of any decision about the facts of his or her case likely to be taken into account (s.167(4A)(c)) and has a right to request a review (s.167(4A)(d)) of that decision.

The applicant must be informed of his or her rights to information under s.167(4A) (s.166(2)).

An applicant also has the right to be notified in writing of a decision that he or she has been awarded a lower preference (see below) than would otherwise be appropriate and the reasons for it (s.167(2C)). A decision that an applicant has been awarded a lower preference is subject to the right to request a review (s.167(2C))

There are NO procedural rules governing the review and any challenge to the review decision would be by judicial review.

An applicant has the right to request such general information as will enable him or her too assess how the application is likely to be treated, including whether he or she is likely to be regarded as a member of a group accorded preference (s167(4A)(a)).

D.Preferences within the allocations scheme

The 2002 Act introduces new reasonable preference categories (s.167(2)):

(a) People who are “homeless” within the meaning of Part VII;

(b) People who are owed duties by any local authority under section 190(2) (homeless persons in priority need who are intentionally homeless), section 193(2) (homeless persons in priority need who are not intentionally homeless) or section 195(2) (people in priority need and who are unintentionally threatened with homelessness) or those occupying property secured by the local authority under new section 192(3) (persons not in priority need who are not intentionally homeless);

(c) People occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d) People who need to move on medical or welfare grounds; and

(e) People who need to move to a particular locality within the local authority’s district, where failure to meet that need would cause hardship to themselves or others.

Within those categories, local authorities may determine an applicant’s relative priority and take into account:

- the financial resources available to a person to meet his or her housing costs;

- any behaviour of a person or of a member of that person’s household which affects his or her suitability to be a tenant;

- any local connection (within the meaning of s. 199) which exists between the person and the authority’s district (s.167(2A)).

As far as “behaviour” is concerned, the test for taking it into account is the same three stage test as in s.160A(7) – described above. An example given in Parliament of a situation in which an applicant might be admitted to the allocation scheme but given a reduced reasonable preference was: “a history of persistent but minor rent arrears not caused by any problems with housing benefit” (Lord Falconer, 15 January 2002, Lords Debates, col 1017).

Local authorities can also draw up their own policies to give preference, or lack of preference, to certain groups (s.167(2E)).

E.Choice Based Letting

The local allocation scheme must include a statement of the authority’s policy on “choice” (s.167(1A)) – even if that policy is not to offer any choice.

The Office of the Deputy Prime Minister has been funding 20 pilot schemes to test the scope for choice-based lettings by local authorities (often in partnership with local registered social landlords).

Although the project has not yet been concluded, or finally evaluated, the ODPM has already set targets. It expects 25% of local authorities to have adopted some form of choice-based letting scheme by 2005 ,with 100% of authorities expected to be offering choice to applicants by 2010 (Choice Based Newsletter Issue 4 – Summer 2002 from

Others – outside the 20 initial pilot areas - have already launched schemes including a “choice” element. An ambitious example is the “Locata” scheme covering five West London local authorities and three RSLs. The details of all the schemes operating can be accessed at

In Lambeth, the new choice-inclusive allocation scheme was declared unlawful by the Court of Appeal in July 2002 (see R(A) v Lambeth [2002] EWCA Civ 1624, 34 HLR 13) and September 2002 Legal Action 29). The housing authority wrote to local legal advisers on 21 August 2002 seeking to dissuade them from taking further judicial review challenges of the existing scheme (which it is continuing to operate until it can devise a replacement). It has now adopted a new needs-based letting scheme (see Lambeth reverts to points system, Inside Housing, [2003] 4 April p6) but does not expect to be able to operate in before February 2004 (see (4) below).

The ODPM has indicated that it will issue further guidance - on how local housing authorities can construct lawful choice-based schemes - towards the end of 2003.

4.A Year in the Courts

There has been something of a “lull” while advisers and authorities get used to the new revised Allocation arrangements after the 2002 Act.

The caselaw of the last twelve months really divides into four categories:

(1)“Inheriting” Tenancies

These are the cases in which people already in council property have challenged decisions not to allocate tenancies to them after termination of a previous tenancy. NB. The council cannot allocate a tenancy in this class of case at all unless provision for such an allocation is made in its Allocation Scheme.

R(Sleith) v Camden LBC [2002] EWHC 2354 (Admin) 30 October

A secure tenant died and no-one qualified to succeed him. Mr Sleith asked the council to allocate the tenancy to him because he had been the tenant’s carer. The council’s Policy on Carers (adopted as part of its Allocations Scheme) gave it a discretion to grant a carer a tenancy and identified six factors that were to be considered in exercising the discretion. The council refused Mr Sleith’s application because (1) it was not satisfied that he was the deceased’s carer and (2) even if he was, allocation would not be justified in the light of its six factors. It offered him a review by the district manager, which he pursued, but she notified him that she too was minded to refuse his application. He was given a further opportunity to make representations but after those were considered, his request was again refused.

Roderick Evans J. dismissed an application for judicial review. He examined the council’s procedures, reviewed its consideration of its six criteria, and scrutinised the decision letters. The council’s conclusions in respect of “carer” status, and on the application of its own policy criteria, had been reached on the available information and were not unreasonable. The Court of Appeal ([2002] EWCA Civ 347, 26 February 2003) refused Mr Sleith permission to appeal. The proposed appeal had no reasonable prospect of success. There was no basis on which a court could conclude that the council had erred in law or acted irrationally. It had applied its “carer’s policy” and had exercised its discretion on the evidence before it.

R(Mays) v Brent LBC [2003] EWHC 481(Admin) 3 March 2003

The claimant applied to the council for a tenancy of the home she had occupied with her late mother. Her mother had been a sole secure tenant since 1979 but in 1996 had breached the terms of a suspended possession order, had accordingly lost her tenancy, and was still in arrears in 2002 when she died. There could therefore be no statutory succession (see Brent LBC v Knightly (1997) 29 HLR 857). The council declined the application for a new tenancy and brought possession proceedings.

The claimant brought judicial review proceedings of the council’s decision. The council opposed permission on the grounds that its decision had simply been consequent on the absence of statutory succession and that any “human rights defence” could be raised in the defence in the county court. On the permission application Sullivan J. considered it arguable that before seeking possession the council had to consider whether such action was compatible with Convention rights and, in particular, whether it was proportionate for the purposes of Art 8(2) ECHR. That was a question prior to the question for the county court (whether possession should be given).

But at the full hearing, Collins J. dismissed the claim. Where there was an unqualified right to possession Art 8 did not require an exercise in consideration of the tenancy-applicant’s circumstances in each case. Although there might be cases in which it was not proportionate to refuse a tenancy (eg where supply exceeded demand) that was not this case.

Any more attempts to use Art 8 in order to “stay-on” (whether as new tenant or otherwise) must face the obstacle course now set by O’Sullivan [2003] HLR 58, Sharp [2003] HLR 65, Gangera and, of course, Qazi

(2) “Transfer” cases

These are the cases in which existing secure or assured tenants have sought transfers to alternative social housing accommodation.

R(Wakie) v Haringey LBC [2003] EWHC 2107 (Admin), 2 July

In April 2000 the claimant was granted a secure tenancy of a one-bedroomed council flat. In October 2000 he married and his wife moved in. When she became pregnant he applied for a transfer to a larger flat. In January 2002 his son was born.

The council operated a points-based allocation scheme. Those allocated the highest points were those in greatest housing need. In March 2002 the claimant was awarded 99 points (which took account of overcrowding, room deficiency and time spent waiting). In September 2002 he was awarded 70 further medical points bringing the total to 169. By July 2003 there were 2694 applicants in the list awaiting 2-bedroomed properties. His points placed the claimant 1567th. Over the previous two years only 444 2-bedroomed properties had been re-let by the council so the probability was that the claimant would wait many years for a transfer. He sought judicial review of the council’s assessment of his medical points.

Leveson J. dismissed an on-notice application for permission to apply for judicial review. The council’s medical officer had considered the medical evidence and applied the medical points categories of the council’s scheme. The claimant did not fall into any of the categories attracting higher medical points and the officer’s assessment to that effect could not possibly be described as Wednesbury unreasonable. The judge said that “it should not be thought that an application to this court will permit one tenant over and above the others, perhaps equally deserving, to jump the queue” (para 24).

(3) “New Allocation” cases

These are the cases of true allocation to a person not currently occupying permanent council stock.

R(Giles) v Fareham BC [2003] HLR 36, 13 December 2002

The council decided that Ms Giles had become intentionally homeless by her “acquiesence” in her husband’s misconduct which had led to the loss of their housing association home on “nuisance” grounds. She applied for the allocation of council accommodation under Housing Act 1996 Part 6. The council applied a discretionary provision in its allocation scheme to “defer” consideration for an offer of housing for five years (subject to a review after one year). Ms Giles contended that the provision in the scheme was unlawful as it set out no criteria for the exercise of discretion and no reasons had been given for its application in her case.

Deputy Judge Michael Supperstone QC dismissed her application for judicial review. The council had clearly considered the relevant personal circumstances before applying the provision. It was under no duty to give reasons. The provision itself was not unlawful. It had been made in the exercise of the council’s powers under Housing Act 1996 s159(7) and s167(1) and was not invalidated by its formulation as a general discretion without detailed criteria for its application.

R(Ibrahim) v Redbridge LBC [2002] EWHC 2756 (Admin) 17 December 2002

The council decided in October 1995 that the Ms Ibrahim was owed the full duty under Housing Act 1985 Part III (homelessness). She was provided with temporary accommodation and placed on the council’s housing register. Over the next seven years she occupied a series of temporary homes provided by the council alternating between self-contained units and bed and breakfast style accommodation. No offer of a permanent home had been made and by December 2002 there was “real doubt” whether the required accommodation (a four bedroomed property in specified locations) would ever be secured for her.

The council operated a “points based” allocation scheme. Ms Ibrahim was awarded a “reasonable preference” as a person owed the statutory homelessness duty and had been awarded a further 40 points on account of the “legitimate expectation” of a permanent home that she had been given in 1995 (see R v Newham LBC ex p Bibi (2001) 33 HKR 955). However, those housed first were those with the highest points referable to current housing need. This meant that each time the council supplied good quality self-contained temporary accommodation, in pursuance of its homelessness duties, Ms Ibrahim lost any practical priority. She kept “yo-yoing” up and down the waiting list as her accommodation was changed. She contended that this “yo-yo” effect rendered the scheme unlawful.