Local Authorities, Housing Law

Extract 1 : Introduction
Extract 2 : Amendments to the 1996 Act

The amendments to the 1996 Act are reviewed below:

Section 159

Section 159 of the Housing Act 1996 states housing authorities have to comply with the provisions set out in Part VI of the Act. The 2002 Act amended s.159 (5) with the effect that the term "allocation" now also includes transfers of existing tenants at their request. This means that existing tenants of housing authorities and Registered Social Landlords are entitled to apply to transfer to another property, which may or may not be in the same housing district.

This may result in an influx of applications by tenants in more deprived areas, to other areas with better facilities including schools and hospitals and better standards of accommodation. This may cause problems between neighbouring districts where one district has a significantly higher standard of housing than another, as an influx of new applications will have to be considered. This may not only clog the administrative system further, but will also place more pressure on the limited accommodation available within districts.

Accordingly, the 2002 Act introduced section 167(2A). This section states that when determining priorities between applicants who fall within the "reasonable" and "additional preference" categories for allocation, authorities may take into account the applicant's local connections with the district for which housing has been applied.

Sections 161-165 & 160A

The requirement to maintain housing registers has been abolished by the 2002 Act.1 Authorities may however, still maintain a register of applicants if they wish to. The removal of housing registers (containing information on applicants and their applications) may lead to administrative difficulties, as it would make it more difficult for authorities to keep track of applications and general housing needs. It is therefore not surprising many housing authorities have chosen to continue using housing registers.

Eligibility :

Section 160A of the 2002 Act provides for new eligibility criteria in relation to qualifying persons. It is the case that authorities may not allocate housing to applicants who are ineligible for benefits due to their immigration status or to those who have not passed the habitual residence test.2 Furthermore, housing authorities may treat an applicant as ineligible under section 160A (7) if the applicant is guilty of "unacceptable behaviour". All other applicants must be treated as eligible by a housing authority.

It may be argued that the new provisions for eligibility renders it more difficult for some sectors of the most vulnerable members of society (who tend to be in greater need of housing) to be provided with an adequate place to live. This is illustrated in the tests applicants have to pass in order to be considered for housing, including for those from abroad, the habitual residency test which require an applicant to have been habitually resident in the CTA (the UK, Channel Islands, the Isle of Man and the Republic of Ireland) for at least 2 years prior to an application.

Unacceptable behaviour - section 167A (7)

The great majority of applicants for social housing are not however, likely to be persons from abroad and unlikely to need to fulfil the habitual residency test. However, applicants may still be denied housing where the authority considers them guilty of unacceptable behaviour serious enough to render them unsuitable to be a tenant. This refers to conduct by an applicant or a member of their family likely to cause nuisance, those who breach their tenancy agreements or are subject to rent arrears. Note that it is not necessary for the applicant to have been a tenant of the housing authority when the unacceptable behaviour occurred. However, previous unacceptable behaviour may not justify a decision to consider the applicant as unsuitable where that behaviour can be shown to have improved.

When considering eligibility under section 160A (7) the authority will have to consider the following:

  • The applicant's circumstances (including their health and family situation)
  • Whether the authority would be entitled to an outright possession order under section 84 of the Housing Act 1985
  • The applicant's behaviour

This policy may render it more difficult for vulnerable members of society and those with a history of social problems, to be successful in their application as these are more likely to fall within the "unacceptable behaviour" category. The Act does not provide an alternative as to where to house vulnerable members of society who fall within this criterion.

Section 166

Section, 166 (1) requires housing authorities make sure advice and information relating to applicants within their district, is made available to them free of charge if they are likely to have difficulty in making an application. Note that this may discriminate against applicants from outside an authority's district who may be unable to obtain suitable guidance in making an application to their desired "district".

Section 167

Under section 167 of the 1996 Act, housing authorities are required to have and to publish their allocation schemes. This continues to remain the case under the 2002 Act, but in addition, section 167 (1A) provides that the scheme must contain a statement relating to the housing authority's policy on offering applicants a choice of accommodation, or the opportunity to express preferences about their accommodation. Note however, that housing authorities have discretion whether to adopt a policy that requires active participation of housing applicants in choosing their accommodation. Accordingly, this discretion renders allocation policies unequal, as some authorities require more participation than others and offer more choice of housing than others. Furthermore, it does not necessarily mean an applicant will be granted housing in accordance to his or her request, as this will depend upon availability.

Reasonable preference

The principle of the 1996 Act remains that allocation schemes must give priority to those most in need of housing. The groups to whom "reasonable preference" should be given have been amended to include all homeless people, those living in unsatisfactory housing, those who need to move on medical or welfare grounds and those who need to move so as to prevent hardship.3 Note that reasonable preference must be given to all homeless people, not just those who are unintentionally homeless and in priority need. However, applicants are still subject to the "unacceptable behaviour" rules that would remove any priority to their application.

Sections 169-174

Apart from minor amendments, these supplementary provisions remain unchanged.

Accordingly, has as the 2002 Act been successful in implementing the policies referred to above? It may be argued that the changes made by the 2002 Act have taken a step forward in implementing these, but in some instances it has further complicated a system already in place and continues to discriminate against certain vulnerable members of society.

  1. section 14 (1) of the Homelessness Act 2002
  2. section 160A (1)(a), (3) or (5)
  3. Section 16 Homelessness Act 2002

BIBLIOGRAPHY AND SOURCES:

1. A New Landlord and Tenant, Peter Sparks - Hart Publishing

2. A Practical Approach to Landlord & Tennant , Simon Garner and Alexandra Frith Third Edition, Oxford Press

3. Hill & Redman's Law of Landlord and Tennant, loose leaf, volume 3 Section D (Public Sector)

4. Revision of the Code of Guidance on the allocation of Accommodation, The Office of the Deputy Prime Minister, 11 November 2002 (www.odpm.gov.uk)

Extract 1 : Introduction
Extract 2 : Amendments to the 1996 Act

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