Housing Law Practitioners’ Association Meeting

Minutes of the Meeting held on 27 May 2010

Portland Hall

University of Westminster

Nice To See You, To See you Nice:

Part 6 and the Allocation Game

ChairMichaelPaget, Garden CourtChambers

Speakers:RobertLatham, Doughty Street Chambers

Rebekah Carrier, SouthwarkLaw Centre

Meeting Overview

Speaker Presentations

1. Rebekah Carrier urged members to become familiar with their local Allocations Schemes, identify their strengths and weaknesses, so that they can be used as a useful tool to help appropriately accommodate our clients. Members should also show clients how the Choice Based Lettings Schemes work in practice by taking them, online, through the bidding process. This will help clients be more realistic about waiting times and what properties are available.

2. It is also important that clients understand how a bid round is administered by a housing provider. If the bid round opens on a Thursday and closes at midnight on Monday an adjustment to any current bids would be sensible on Monday evening.

3. RobertLatham emphasised that Part 6 should be used much more frequently as a way to obtain housing for our client base. Under certain schemes an applicant is classed a homeless with a high priority for Part 6 purposes whilst their Part 7 application is being determined. The client can continue to bid under Part 6 during the currency of the Part 7 application and may be successful (this is especially sensible if no full duty is ultimately owed under Part 7).

4. A number of housing providers are now only advertising available properties online. This may cause problems for the part of our client base who do not have easy access to the internet or are vulnerable.

Information Exchange

5. JamesBowen updated the meeting that the appeal in Universal Estates v Tiensia had now been heard by the Court of Appeal but with judgment reserved. This is the first case that the Court of Appeal will properly tackle the effect of the Tenancy Deposit Scheme. It may resolve the debate about whether a late complying landlord can avoid a compensation claim. (Unfortunately, as of 13 July 2010, judgment still remains reserved).

6. JanLuba and KevinGannon informed the meeting that the Supreme Court had refused to join the other Human Rights appeals, including Hall and Powell, to be heard with Pinnock. Those are now to be heard in November 2010 and may be joined by Coombes, a failed successor appeal. It was unfortunate that the demoted tenancy case was the first to reach the Supreme Court as a court will already have had to decide that it was reasonable to demote the tenancy. In some of the other appeals a court will have had no input prior to possession proceedings being brought on a mandatory ground.(Pinnock has now been heard with judgment reserved.)

7. Solicitors Regulation Authority

The meeting was chosen to be audited by the SRA. Lots of appraisal forms were completed and it is hoped that everything has been met with approval by the SRA.

Minutes

Chair: Good evening everyone. My name is MichaelPaget, I am a member of the Executive and of Garden Court Chambers. Firstly, does anybody have any corrections to the Minutes of the last meeting? Tonight’s meeting is also being audited by the Solicitor Regulation Authority so we would be grateful if all solicitors could complete and return the assessment form.

This evening’s talk is all about allocations and we are going to be taken through the maze of allocations by two experienced practitioners. The second speaker is RobertLatham who is the former Legal Aid Barrister of the Year and is very expert in all things to do with allocations. The first speaker is Rebekah Carrier, who also has a long history of practicing in allocations and was also involved in the challenge to the Legal Services Commission when they were refusing to grant funding to tenants who were facing eviction for arrears because they had not paid their rent,which fortunately she got overturned.

Rebekah Carrier: Before I start I am going to say a little about the context of our talks. We will draw out some of the themes in our handout as this is intended to supplement what we will say We suggest that the knowledge of a local authority scheme and of Part 6 and of the relevant case law can inform not only our work which presents immediately as re-housing work but also our other work. The most obvious example is homelessness work where there is a temptation to see the case as concluded once the client has got the Section 184 decision confirming a Section 193 duty has been accepted. But this may leave the client in unsatisfactory temporary accommodation for many years so there are also many homeless applicants for whom we might be able to achieve a quicker or a better outcome by a focus on the local authority’s allocation scheme at the start instead of focusing our energy solely on what might sometimes be a weak homelessness application. In the paper I discuss some of the tactics that you can use in some areas to get a client housed even though you can see that at the end their homelessness application might fail.

Before Robert takes us through the law I will focus on how we can look at Part 6, or, more specifically, at the detail of the relevant local authority’s allocation scheme because, obviously, one of the big changes that has happened, coincident with the widespread introduction of choice-based lettings schemes, is the use of the internet. So I will, hopefully, use the internet and look at what information we can access about the allocation schemes of the authorities our clients are applying to. So what I would say, to encourage you to use this approach, is that we are really used, as lawyers, to applying legal rules to factual scenarios so we are familiar with the way that apply the various different stages or rules in Part 7 to a homeless applicant’s circumstances. We know how to apply these rules so when we are assessing a potential Part 7 application solicitors and advisors are very skilled at unpicking the way we apply the rules to the facts, like in a Section 202 review for example, but we can develop a similar approach to allocation schemes because they are also a set of rules just like laws or regulations and they are often more interestingly, I use that sort of ironically, drafted than statutory regulations. So we need to be familiar with these rules so that we can apply them and assess our client’s prospects of success and use them to help our clients get the best available outcomes. But there is an additional opportunity for us, as lawyers, when we consider these rules because we are allowed to, we have the scope to look not only at how we use the rules to our clients’ advantages and persuade authorities to improve their priority and not only at how the decision-making process has been carried, which are the things we are used to doing, but also sometimes we can look at whether the rules of the game themselves are susceptible to challenge. So this is what we have referred to in our paper as a two stage approach to cases about allocations and we have suggested that lawyers should routinely be looking at what the allocations game can or cannot do for clients in a whole range of other cases. But in order to do this, first of all we need to be familiar with our local schemes and we need to be confident about approaching other schemes and accessing available information and this might sometimes include working quite hard at obtaining disclosure from the local authority.

I will now take you to some of the information which is easily available to us. As with all our legal work, part of our job sometimes is to help clients to adjust their unrealistic expectations and sometimes, less often unfortunately, is to show them that their desires or their expectations actually are not unrealistic at all. So a good starting point for us can be familiarity with the statistics which are available to us as well as with the websites which operate the choice-based lettings schemes. I am mostly focusing on choice-based lettings schemes although, obviously, not all authorities have choice-based lettings schemes. So what we can do is look at how we can access and understand information about waiting times. So I am going to take you to the world of Southwark Home Search. When I was preparing for this talk I asked the London Borough of Southwark if they could give me a test user login so that I could go in and pretend to be a client but they said I could only do that if I had a Southwark employee come with me as a minder so instead I asked a couple of clients to let me use their logins to demonstrate how the system works. Unfortunately for my client and for me, the first client I asked and agreed found himself suspended from bidding this Friday afternoon and this would have meant that although I could have gone on I would not have been able to demonstrate the information the bidder can access. But fortunately for him, a pre-claim letter threatening urgent action to prevent the allocation of any property he might have wanted to a lower placed bidder resulted in that suspension being lifted in time for me to bid on Monday and Southwark Home Search has a bidding cycle which runs from Thursday to Monday. But fortunately for him and unfortunately perhaps for me, we will see, at the end of Monday he was first in the queue for his preferred property so because in Southwark they suspend successful bidders we may find that he is suspended but there we go. But I think that little anecdote illustrates that it is really useful to know how the allocation scheme works because you do need to know if your client is going to be suspended for bidding and becoming first in the queue while they go and see and decide they do not want it, if it is a property they do not really want, because next week they may be suspended when there is a property they want. So it is just a tiny detail but it is really helpful to understand how the process works.

So I shall take you now, hopefully, to Southwark Home Search. This is the screen that the client will see when they come in to exercise their right to choose their own home, so what can we find out from this website to help this client to assess what is going to happen to their application? First of all, we can check that the client is in the band that they think they are in or should be in so we find this client is in Band 2, which is the second highest band in Southwark and he has a priority date of 18 September 2007 which might surprise some people here, that is another conversation. You want to check that your client is assessed for the right size of property and that means that you need to know the rules that this scheme has about how you decide what size of property you can have and here I can see he is assessed for the right size of property. Then we can access his bidding history so on ‘My Bids’ we can see that he is still No. 1 but for some reason he has not been offered it. We can see that in the last round he bid for this property and he was No. 1 and we can go and we can look at all his historic bids and we can click on each month and find out what he bid for. This process can be useful because often clients say, “I’ve been bidding, I’ve been bidding and I don’t understand why I haven’t got it, yes I bid very widely,” and often you can demonstrate to them by going through their application that, actually, they have not been bidding or they have not been bidding realistically. Also, sometimes the records are wrong and it may be necessary to ensure that they are corrected but I think this was probably more prevalent when schemes were largely paper based. I did have a few cases in West London where people were being penalised and being given direct offers because the local authority said they had not been bidding and actually clients could prove they had sent off the coupon or sent the text message so it is always worth checking that the records are correct.

Then perhaps the most useful thing is we can look at, this is not something on the client’s screen but you need to be logged in as the client, we can look at what they are advertising now. In Southwark’s scheme, and most schemes work the same way, you can select a lettings area, you can select a number of bedrooms and we can bid and see what you can have in the London Borough of Southwark this week. Actually this client here, because he is in Band 2 with such an early priority date, has a nice choice and is coming up very high in the queue for lots of properties but for most clients, you will be probably be familiar with and lots of you will be, you will find queue positions like 57 or 157 and so it is useful just to show to people that if you are going to bid for the nice garden house in East Dulwich you are going to be successful because it is going to show you that you are coming very, very high/low, whichever way you put it, in the queue. It is also important to understand how your scheme works in terms of when properties are advertised, when bidding opens and when bidding closes. In Southwark bidding opens at midnight on Thursday morning and closes at midnight on Monday night and that scheme has been in operation for nearly five years and clients still come in and say, “my housing officer has explained to me I need to bid at midnight on Thursday morning and I don’t understand, I’m No. 1 for everything and why aren’t I getting offers?” So just explaining to people and making sure that there is an understanding about how people slot in the queue who bid, who are ahead of you but bid after you and persuade your people to revisit the site on a Monday night and to adjust their bids.

Then the next thing that I would do is look with your clients at outcomes and that is ‘Recent Lets’ which I think is much more useful than the waiting times table. You can access on most of these sites tables which say average waits but average waits are pretty meaningless for an individual client whereas if we look at a cycle we can see that if you had someone, say, who wanted a three bedroom property you could say, “well look, last week the people who bought these three bedroom properties have been in Band 2 and you are only in Band 3 and they have been waiting since 2008” so you can get people to look and see what you could have had if you had chosen to bid, what you could not have had and sometimes you can show people that, actually, they could be successful if they bid for a certain sort of property. So I think looking at the outcomes is probably much more useful and much more interesting than looking at the waiting times. But I can take you to some other waiting times, it looks fairly similar, this is the waiting times in Newham on the East London Lettings website and I am sure Robert would want to point out that in Southwark there is a relatively good supply of stock and, of course, in Newham you will find similar types of properties and much longer waiting times.

Going back to information that you can find on the Southwark scheme, just before we look at some other schemes and other bits of information, I think it is interesting when you do go into these sites to look at what information you can find specifically for your client’s application. But you can also find other interesting documentation which may give you an indication about what the practices are locally. So just by way of example here, this is from Southwark Council’s website, Southwark Home Search is one website, Southwark Council have another website but they have constant links between the two, and Southwark Council’s website says who can apply. It tells you that you can apply to go on to Southwark’s housing register if you are over 16, if you have lived in Southwark for more than 6 months, if you are not restricted by immigration controls and we know what they mean about that and we know that Robert will probably make some references to the various statutory provisions, but you will all know that there are restrictions on eligibility which relate to immigration status. If you do not owe us or a housing association any rent or you have not been evicted for anti-social or racist behaviour and I expect your immediate reaction to that is that two of those bullet points there seem to be a summary of the statutory permission, it is more than a permission for immigration but the statutory provisions about eligibility which appear at the beginning of the Part 6. I do not know where the other three come from because they are not talking about whether you will have any priority; they are saying you will be eligible to be placed on the register. So that is the information that is on Southwark’s website.