ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE

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ALLOCATIONS ISSUES PITFALLS AND BEST PRACTICE

• By
• David Matthias QC and Clare Parry
• 2-3 Grays Inn Square

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OUTLINE

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

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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.

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ALLOCATIONS-A VERY SHORT INTRODUCTION (2)

• Number of exceptions where dont have to comply
  with Part VI, set out in s. 160.
• LHAs 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.

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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.

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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).

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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.

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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

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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

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ELIGIBILTY

• The most important cases on this issue will be
  covered in Peggy Etiebets talk on immigration
  issues in housing (later).

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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.

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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.

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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.

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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.

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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 couldnt 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.

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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.

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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.

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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.

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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 Ss son
  now over 5 so even under own scheme it was not
  suitable.
• Decision quashed.

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THE END

• Any comments from the floor?
• Any questions?