Local authority allocation schemes

An allocation is defined as:

• selecting a person to be a secure, flexible or introductory tenant for accommodation held by a local authority[1]

• nominating a person to be a secure, flexible or introductory tenant of another local authority[2]

• nominating a person to be an assured or assured shorthold tenant of a housing association or other private registered provider of social housing (PRPSH)[3] This includes tenancies let at an affordable rent. For the many local authorities that no longer have their own housing stock a nomination to a PRSPSH will be the principal means of allocating accommodation

• transferring an existing local authority or PRPSH tenant, to accommodation held by the local authority, or by a different housing authority – this only applies to an existing tenant who is in one of the categories of person to be given reasonable preference under the allocation scheme[4]

In some situations the allocation rules do not apply. If this is the case, an authority is free to allocate properties at its discretion.

The transfer of existing tenants can be dealt with outside the allocation scheme, except where a tenant is in one of the categories of person to be given a reasonable preference.

A tenancy acquired in one of the following ways is not an allocation where:[5]

• a person succeeds to the tenancy on the death of the secure, flexible or introductory tenant

• a person is assigned the tenancy or the tenancy is transferred in a mutual exchange

• a secure, flexible or introductory tenant assigns the tenancy to someone who would be qualified to succeed on death

• a property adjustment order is made in matrimonial proceedings or under the Children Act 1989

• an introductory tenant is granted a secure or flexible tenancy following the end of their introductory tenancy

• an authority provides suitable alternative accommodation under section 39 of the Land Compensation Act 1973[6]

• an authority grants a secure tenancy to a former owner-occupier or tenant of a defective dwelling that the authority has repurchased[7]

• a tenancy is offered to a family intervention tenant[8]

Social landlords may offer a discretionary non-statutory succession to household members and carers who have lived with a deceased tenant for a period of time (usually 12 months) before the death occurred.

Although expressed as a succession right, any grant of a new tenancy by a local authority under such a policy is in fact an allocation, and must comply with the local authority's allocations policy.

There is a distinction between a local authority's duty to allocate accommodation in accordance with its allocation scheme[9] and its power to dispose of accommodation by the grant of a secure tenancy.[10]

Where a local authority employee empowered to make allocations had let vacant properties to applicants who did not have priority under the authority's allocation scheme, and there was no evidence of any wrongdoing by the tenants, the court held that the secure tenancies granted were lawful.[11]

Every housing authority must have an allocation scheme to determine housing priorities, and a procedure to be followed when allocating accommodation.[12] The procedure by which a local authority allocates accommodation must be clear from the scheme. The criteria the authority uses must be set out so as to enable applicants to apply for accommodation under the scheme, and to assess their chances of success. An allocation made in accordance with a procedure that cannot be ascertained from the scheme may be unlawful.

In one case, the High Court held that an authority which allocated accommodation by direct offer to homeless applicants whose points were beneath the amount set out in the scheme as required before an allocation could be made, was acting unlawfully. There was no indication within the scheme that an applicant with less than the threshold number of points could apply for a direct offer, and there was therefore no possibility of knowing whether the direct offer policy had been applied, and no way an applicant could challenge a refusal to do so.[13]

A local authority can prioritise between applicants if it is in accordance with its allocation scheme.[14] For example, in one case it was held that where the allocation scheme specified that in order to be awarded additional points for housing and health related needs the applicant had to demonstrate that her medical conditions had been either caused or made worse by her housing conditions, a refusal to award additional points where no such link had been demonstrated was lawful.[15]

Allocation to households with a disability

The High Court has held that an allocations policy which prevented a household containing a disabled adult from being offered a suitable property was unlawful. The intention of the policy was to give a 'head start' to families with children, but interpretation by council officers led to a situation where households without children could not be offered a house with adaptations required to meet the needs of a person with a disability.[16]

The local authority was under a duty to make reasonable adjustments to its allocation scheme to ensure disabled households were not at a disadvantage. It was not sufficient to make an exception in an individual case when the allocation scheme was challenged.[17]

Transfers of certain existing tenants fall outside the statutory regime.

In the exercise of their functions under Part 6 of the Housing Act 1996, local authorities must have regard to statutory guidance issued by the Secretary of State.

Allocation of accommodation: guidance for local housing authorities is available on Gov.uk.

The following additional statutory codes of guidance have also been published:

• Providing social housing for local people

• Right to move

• Improving access to social housing for victims of domestic abuse

• Improving access to social housing for members of the Armed Forces

A local authority's allocation scheme must include a statement about how it will offer a choice of accommodation to applicants or the opportunity for them to express a preference about the accommodation offered.[18]

One way of offering choice is to use a choice-based lettings system.

Local authorities can adopt different systems of prioritising between applicants, these are principally points-based or banding approaches.

If an applicant's circumstances change, an authority should reassess their housing needs.

Points-based

A points-based approach ranks applicants according to points awarded for different categories of need. In addition, points are often awarded in relation to the length of time the applicant has been waiting for an allocation.

The more points applicants have, the greater their priority. A points-based system can be complex.

Banding

Banding schemes operate by grouping applicants into a number of bands, which reflect differing levels of housing needs or relative priorities within a housing authority's allocation scheme.

This type of scheme is generally easier for the applicant to understand, and simpler for the housing authority to administer.

In determining how to prioritise between applicants, a local authority must give reasonable preference to those categories of people set out in section 166A(3) of the Housing Act 1996.

Additional preference may also be given to applicants who have a reasonable preference and have an urgent need to move.

Removal or suspension of reasonable preference categories

Part 6 of the Housing Act 1996 does not allow a housing authority to frame its allocation scheme so as to remove or suspend a whole reasonable preference category listed in section 166A(3).[19]

A scheme preventing homeless applicants to whom the housing authority had accepted a full housing duty under Part 7 (homeless people are in a reasonable preference category) from bidding for social housing for a period of 12 months from the date they went on the housing register was declared unlawful.[20]

The House of Lords has given guidance on how an allocations scheme should be framed, with particular emphasis on the preference that must be given to some applicants:[21]

• cumulative preference – there is no requirement for local authorities to frame their allocation scheme to provide for cumulative preference, ie affording greater priority to applicants who fall into more than one reasonable preference category. There may, however, be exceptional circumstances when it may be irrational for a scheme not to distinguish between levels of priority, leaving the allocation scheme open to judicial review

• waiting time – an allocation scheme which allows for priority to be determined between applicants in the reasonable preference categories on the basis of waiting time alone is not unlawful or irrational

• quota for transfers – an allocation scheme is not unlawful if it allows for a small percentage of lets to be allocated to existing social housing tenants who wish to transfer and who do not fall within any of the reasonable preference categories

• local authority discretion and local lettings policies – where a local authority's allocation scheme complies with the requirements of section 166A and any other statutory requirements, the courts should be very slow to interfere on the ground that it is irrational. This gives authorities the option of including local lettings policies within their schemes in order to achieve a variety of housing management and policy objectives, such as supporting households into work, encouraging 'community contribution' and reducing under-occupation

Bidding thresholds

In one case,[22] the High Court held that a scheme which allowed bids only from applicants whose points were above a certain set threshold was lawful. This was the case even though the effect of the threshold was to exclude the applicant, who was in a reasonable preference category, from bidding, at least for as long as her points remained below the threshold.

In the Court's view:

• operating a bidding threshold was qualitatively different from excluding or suspending everyone in a reasonable preference category from being a qualifying person for the scheme, which would be unlawful. Additional points which might bring an applicant into bidding contention could be acquired, eg for time spent on the register, or to reflect specific welfare needs of the household, including children. The threshold only affected those applicants in a reasonable preference category whose points were below it, not the entire category

• a bidding threshold was not concerned with the issue of preference or priorities, which was dealt with by awarding points. It simply allowed the authority to manage demand by limiting the volume of applicants able to bid

• setting the level of the threshold (which the authority kept under review) was a matter for the judgment of the authority, not the court

Where a local lettings scheme allowed existing tenants on a social housing estate, and existing social housing tenants generally, the right to apply under the scheme for new-build social housing properties before anyone else, the High Court held that this was lawful.[23] The aims of the policy were to build sustainable communities by enabling local residents to maintain their connections with the area, and to address overcrowding and under-occupation within the community.

Any discrimination inherent in the local lettings scheme under Article 14 (in conjunction with Article 8) of the European Convention on Human Rights (or indirect discrimination under the Equality Act 2010) was justified, in that the scheme struck a fair and proportionate balance between the consequences to the applicant and the importance of the aim. Any discriminatory effect should be assessed in the context of the scheme as a whole.

The High Court held that where a local authority had failed to carry out a proportionality assessment of the impact of its allocations policy on women fleeing domestic abuse, the local connection provisions amounted to unlawful discrimination.[24]

The Code of Guidance states that when making offers to applicants who receive overnight support from a non-resident carer the local authority should take into account the need of applicants for a spare bedroom.[25]

The Code of Guidance strongly encourages authorities to take into account the needs of serving or former Service personnel when framing their allocations schemes, and to give sympathetic consideration to the needs of their family members.[26]

Members of the Armed Forces are to be exempted from any residence requirements that may form part of the criteria for qualification on an allocations scheme.

Allocation schemes should leave room for the exercise of discretion on the part of the local authority to make offers or award additional priority outside the scheme's rules in exceptional circumstances.[27]

In one case, a local authority denied that it had discretion to backdate an application under its allocation scheme. The High Court found that the scheme did allow for discretion. The local authority did not meet its duty of candour and cooperation to the court, as it failed to disclose that it had already exercised discretion to backdate other applications.[28]

When prioritising between applicants in the reasonable or additional preference categories, the local authority may adjust relative priority. Thus, having preference does not necessarily mean that an applicant will be given priority over other applicants, as the presence of factors such as rent arrears may reduce or even nullify that priority.

An authority may take into the account the following factors:[29]

• the financial resources available to a person to meet their housing needs – for example a local authority can give less priority to a owner occupier or an applicant who is financially able to secure alternative accommodation

• any behaviour of a person or a member of their household which affects their suitability to be a tenant – for example the authority could give greater priority to an applicant who has been a model tenant, or less priority to an applicant guilty of antisocial behaviour.[30] It has been held that it was lawful for an authority to automatically suspend applicants in rent arrears where the authority had the discretion to remove the suspension in exceptional circumstances, and it was not necessary for the authority to set out the criteria to be used in deciding what constitutes exceptional circumstances[31]

• any local connection within the meaning of section 199 Housing Act 1996. A person serving in the Armed Forces can establish a local connection through residence or employment in an area, in the same way as a civilian can

Other factors that may affect priority between applicants

The factors above are not exhaustive and the authority can take other factors into account when framing its allocation scheme. Authorities must be careful that any factors they use do not unlawfully discriminate against applicants.

One commonly used factor is the length of time since the applicant registered for the scheme. Other examples that the courts have considered lawful are ones that give:

• less preference to an applicant living in overcrowded private rented sector accommodation than to an applicant living in overcrowded public sector accommodation[32]

• greater priority to applicants who are in work (or making a 'community contribution' in another way, such as by volunteering) above those who are not. The High Court held in a case where the authority awarded 'priority stars' that increased the relative priority of working applicants, that, although such a policy indirectly discriminated (under the Equality Act 2010) against people with disabilities and women - who were statistically less likely to be able to work or volunteer, the discrimination was lawful. The scheme applied the 'least intrusive measure' to allow the authority to meet its legitimate objective of encouraging residents to contribute to their local community, and 'struck a fair balance between securing that objective and its effect on the claimant's rights'[33]

Overcrowding

A local authorities allocation scheme might give less priority to an overcrowded household if the overcrowding was caused by the applicant's own actions.

The Court of Appeal held that an applicant who moved into a one-bedroom flat with their family a few years before applying to join the local authority’s housing register had not committed a deliberate act of causing overcrowding within the meaning of the housing allocation scheme. The fact that the applicant’s children subsequently reached the age at which the household became statutorily overcrowded was not a deliberate act.[34] In a subsequent case relating to the same scheme, the High Court held an act is only deliberate if the applicant intended to do it and had a real choice between two or more viable options.[35]

Homeless applicants

When an authority had accepted it owed the main housing duty to a homeless applicant, the High Court held that it was lawful for the authority to defer for two years an application for its allocation scheme, where the applicant had previously refused a suitable offer of accommodation under the scheme.[36]

In principle, it is not unlawful to give greater priority to some homeless groups than others. However the decision of an authority to give higher priority to applicants occupying temporary accommodation than those who are 'homeless at home' was held to be unlawful as there was no evidence to show that the former were in worse accommodation and thus should be allocated accommodation sooner.[37]

Section 106 planning restrictions

Where the local authority allocations policy manages nominations to PRPSH properties, these nominations may be subject to Section 106 planning restrictions.

On request from an applicant, a local authority must notify the applicant in writing of any decision which affects their chance of being allocated accommodation, and inform them of the right to request a review.[38]