ALLOCATIONS ISSUES: PITFALLS AND BEST PRACTICE By: David Matthias QC and Clare Parry 2-3 Gray’s Inn Square

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

ALLOCATIONS-A VERY SHORT INTRODUCTION (1) Provisions found in Part VI of the Housing Act 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.

ALLOCATIONS-A VERY SHORT INTRODUCTION (2) Number of exceptions where don’t have to comply with Part VI, set out in s LHA’s 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.

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.

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).

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.

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

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

ELIGIBILTY The most important cases on this issue will be covered in Peggy Etiebet’s talk on immigration issues in housing (later).

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.

CONSULTATION PAPER (1) Will form new code of guidance for choice based lettings. Will supplement existing code. Every LHA should have choice scheme by 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.

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.

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.

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 couldn’t 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.

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.

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.

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.

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 S’s son now over 5 so even under own scheme it was not suitable. Decision quashed.

THE END Any comments from the floor? Any questions?