Friday, 31 October 2014

The order of importance

The Localism Act allows councils to decide who they allocate homes to, but beware of discrimination, warns Samantha Hall, senior associate at Trowers & Hamlins

One of the many changes that the Localism Act will ring in is an alteration to the concept of allocations.

Under part VI of the Housing Act 1996, nearly all local authority decisions on allocations were made in accordance with an allocations scheme, on the basis of need and some also with local connections. This scheme provided the policy framework through which the local authority could prioritise its housing applicants (most commonly by using points or banding) for its available housing.

In future, however, this general applicability of the allocations scheme will change. Instead of covering most allocations, an ‘allocation’ for the purposes of the scheme will largely only cover those to new tenants, or existing tenants requesting transfers who qualify for ‘reasonable preference’.

The council therefore will now have the right to turn down an application by an existing local authority tenant who requests a transfer but does not qualify for reasonable preference.

What is reasonable preference?

Reasonable preference is a statutory concept. When framing allocations schemes, local authorities are required to ensure that reasonable preference is given to certain qualifying groups.

These include those who qualify as homeless, those occupying insanitary or overcrowded homes, those who need to move on medical or
welfare grounds and those who need to move to another locality where failure to move will cause hardship.

The development of local priorities

R (on application of Ahmad) v Newham Council established that ‘reasonable preference’ meant simply that - preference, not absolute priority. Councils have therefore had scope to develop local priorities into their allocations schemes.

The government’s recent consultation on allocations appears to develop this further, as it urges authorities to consider how priority can be given to households in or seeking work or contributing to the community ‘even where they are not in the reasonable preference categories’. A similar encouragement is given in relation to priority for service personnel.

The carving out of some existing tenant transfers from the statutory allocations scheme, combined with the scope for local prioritisation of applicants within the scheme, show how local priorities are growing in importance.

General equality duty

Tenants with protected characteristics (including age, disability, race and religion) may qualify for reasonable preference, for example, those with disabilities who need to move on welfare grounds. If there is no reasonable preference, though, is there tension between these tenants’ rights to equal treatment and, for example, if they are unable to work due to disability, a local lettings policy that strongly prioritises working households? If a council prioritises working households to the exclusion of others to whom it owes a duty, it may run into trouble.

Practical steps

  • Avoid policies which inadvertently result in high demand properties being allocated disproportionately to one group
  • Undertake equalities impact assess-ments
  • Monitor lettings to assist discovery of discrimination
  • Consult before adopting schemes
  • Maintain links with social landlords and organisations representing the interests of potential applicants

shall@trowers.com

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