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Reasonable and additional preference

This content applies to England

A local authority's duty to give reasonable and additional preference in the allocation of housing.

Introduction

Within certain limits, local authorities have the right to:[1]

  • decide who is a qualifying person for the purposes of their housing allocation schemes
  • exclude those who are not qualifying persons from the housing register.

However, where a group of persons is entitled to reasonable preference (for example, homeless people), the allocation scheme cannot be drawn so as to exclude most or all of that group.[2]

Reasonable preference categories

A local authority's allocation scheme must give reasonable preference to applicants who fall into the following categories:[3]

  • homeless people, as defined in Part 7 of the Housing Act 1996. This includes homeless applicants who have been found not to be in priority need, and those who have not made an application under Part 7 but would have been found to be homeless if they had[4]
  • people who are owed a duty under the following sections of the Housing Act 1996:
    • 190(2) - eligible for assistance, homeless, in priority need and intentionally homeless
    • 193(2) - eligible for assistance, homeless, in priority need and not intentionally homeless
    • 195(2) - the prevention duty owed to persons who are eligible for assistance and threatened with homelessness

    Reasonable preference will not apply if the applicant would not have been deemed homeless or in priority need without the local housing authority having had regard to a household member who is ineligible for assistance.[5] This is known as a restricted case.

  • applicants who applied for homelessness assistance before 3 April 2018 and have been accommodated under section 192(3): the power to accommodate people who are eligible for assistance, homeless, not in priority need and not intentionally homeless (this section has now been repealed)
  • people occupying insanitary or overcrowded housing, or otherwise living in unsatisfactory housing conditions. The Code of Guidance recommends that the 'bedroom standard' is adopted as a minimum measure of overcrowding, This allows one bedroom for:[6]
    • each adult couple
    • any other adult aged 21 or over
    • two adolescents of the same sex aged 10 to 20
    • two children regardless of sex under the age of 10
  • people with a need to move on medical or welfare grounds, including grounds relating to a disability. The Code of Guidance sets out that welfare grounds include a need to provide:[7]
    • accommodation for a care leaver or someone leaving a drug or alcohol recovery programme
    • appropriate accommodation for those who could not be expected to find their own accommodation, such as those with learning disabilities who wish to live independently
    • accommodation suitable for people needing to give or receive support, such as larger accommodation for foster carers
  • people who need to move to a particular area to avoid hardship to themselves or to others. This could include someone who needs to move to access to specialist medical treatment or to provide care for a relative.

Additional preference

Local authorities can give additional preference to particular groups of people who have a reasonable preference, if they have urgent housing needs.[8] The Allocations Code of Guidance sets out examples that the authority should consider, ie those who need to move urgently because:[9]

  • of a life-threatening illness or sudden disability
  • they are severely overcrowded and this poses a serious health hazard
  • they are homeless as a result of violence or threats of violence - see Definition of domestic violence.

However, as long as they refer to applicants with urgent housing needs and who have reasonable preference, authorities can include other additional preference categories.

Local authorities will need to be careful not to unlawfully discriminate. In one case, giving additional preference to applicants who had lived in the borough for ten years was found to discriminate against Irish Travellers and refugees. The authority could not show any evidence that it had considered whether this discrimination was a proportionate means to achieve a  legitimate aim, therefore the discrimination was unjustified and the policy was found unlawful.[10]

When deciding whether giving additional preference on the grounds of residence is proportionate, local authorities will need to consider empirical evidence of how affected communities such as travellers are affected, and should normally be consulting expert organisations such as the Equality and Human Rights Commission and their own case files.[11]

Giving additional preference to working households is often lawful: the courts have accepted that although it will involve discrimination against women and disabled people, it can be justified if the phrasing of the provision affects relatively few people and is aimed 'at a specific problem' of people who are in housing need but working.[12]

It is worth noting that even applicants with high priority on the waiting list may be sometimes forced to wait for a considerable time for an allocation, for example due to a general shortage of social housing in the area or limited availability of suitable accommodation. The High Court found that where a severely disabled applicant with high priority on the register had been confined to his bedroom for twenty months before suitable property became available, in the absence of maladministration, unfairness or other unlawful conduct on the part of the local authority, the delay itself was not sufficient to constitute a breach of Article 8 rights.[13]

Preference for members of the armed forces

Local authorities must give additional preference to a person who:[14]

  • is in a reasonable preference category
  • has an urgent housing need, and:
    • is currently serving in the regular armed forces and suffering from a serious injury illness or disability which is attributable (wholly or partly) to their service
    • formerly served in the regular armed forces
    • is a bereaved spouse or civil partner who has recently ceased, or will cease to be entitled, to reside in accommodation provided by the Ministry of Defence following the death of their spouse or civil partner whose death was attributable (wholly or partly) to service in the regular armed forces
    • is, or had been, serving in the reserve armed forces (this includes the Territorial Army) and who is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to their service.

Illness or disability includes a mental health condition.[15] Local authorities should not impose evidential requirements that are too onerous for example expecting the applicant to provide the whole of their service medical history.[16]

On 27 June 2020, the government published statutory guidance for local authorities on how to improve access to social housing for members of the armed forces.[17] The purpose of the guidance is to compliment the general statutory guidance on allocation of accommodation and assist local authorities when considering applications for social housing by members of the armed forces, veterans, and their families, including estranged spouses or civil partners.

The guidance includes the following advice for local authorities:

  • ‘strong encouragement’ to extend the exemption from local connection requirements to divorced or separated spouses or civil partners of service personnel who need to move out of accommodation provided by the Ministry of Defence (paragraph 18)
  • consideration whether other qualification criteria may disadvantage members of the armed forces, for example where a capital threshold is applied to lump sum payments received as a result of disability or injury sustained while in active service (paragraph 20)
  • sympathetic approach towards service families accommodation who accrue housing-related debt as a result of being liable for mesne profits after becoming irregular occupiers, often following a relationship breakdown (paragraph 21)
  • using the statutorily mandated flexibility to set local priorities alongside the reasonable preference categories, for example giving preference to those who have recently left the armed forces (paragraph 36)
  • recommendation to review existing allocation policies and revise them where appropriate to reflect the new guidance (paragraph 4).

Deciding between applicants

Local authorities may adjust the relative priorities between applicants in order to decide to whom it will make an offer of accommodation. See Schemes and priorities for details.

[1] s.160ZA(7) Housing Act 1996, as inserted by s.146 Localism Act 2011.

[2] R (on application of Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438.

[3] s.166A(3) Housing Act 1996, as inserted by s.147(4) Localism Act 2011.

[4] R (on the application of Alam) v Tower Hamlets LBC [2009] EWHC 44 (Admin).

[5] s.166A(4) Housing Act 1996, as inserted by s.147 Localism Act 2011.

[6] para 4.8 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.

[7] para 4.10 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.

[8] s.166A(3) Housing Act 1996, as inserted by s.147 Localism Act 2011.

[9] para 4.13 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.

[10] R (on the application of Gullu) v Hillingdon LBC & R (on the application of Ward) v Hillingdon LBC [2019] EWCA Civ 692.

[11] R (on the application of TW) (No.2) v Hillingdon LBC [2019] EWHC 157 (Admin).

[12] R (on the application of TW, SW and EM) v Hillingdon LBC [2018] EWHC 1791 (Admin).

[13] R (Idolo) v Bromley LBC [2020] EWHC 860 (Admin).

[14] Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012 SI 2012/2989.

[15] para 29 Improving access to social housing for members of the Armed Forces, MHCLG, 27 June 2020.

[16] para 30 Improving access to social housing for members of the Armed Forces, MHCLG, 27 June 2020.

[17] Improving access to social housing for members of the Armed Forces, MHCLG, 27 June 2020.

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