People who qualify for local authority housing

A local authority has the power to decide who is a qualifying person under its allocation scheme. Where a local authority decides to do this it will only allocate accommodation to a qualifying person.

If there is a joint application, at least one of the applicants must be a qualifying person.

A local authority may use any qualifying criteria, except that:[1]

• someone who is ineligible for an allocation because of their immigration status cannot be a qualifying person

• regulations may specify that certain criteria must be taken into account

The power to decide who is a qualifying person results in differences between local authorities in the criteria used. Criteria that may be used include:

• residence or local connection with the area

• history of rent arrears

• history of antisocial behaviour

• positive behaviour

• home ownership

• high level of savings/high value assets, enabling the applicant to satisfy their own housing needs

The qualifying criteria used by the local authority may exclude individual people in reasonable preference categories from the allocations scheme.[2] For example, a homeless person (who is entitled to reasonable preference) may be disqualified on the grounds of anti social behaviour.

Authorities may not, on the other hand, adopt policies which exclude all or most of a class of persons with reasonable preference from being 'qualifying persons'. The duty to give reasonable preference to particular groups includes giving people within them the ability to access the allocations scheme in the first place. So a provision in a scheme that excluded 'homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant' was found to be unlawful as most statutorily homeless persons would be excluded.[3]

The Codes of Guidance on allocations set out that, when framing qualification criteria, a local authority needs to have regard to its duties under the Equality Act 2010, as well as the requirement to give reasonable preference to certain classes of person.[4]

Schemes that discriminate directly or indirectly against persons with characteristics protected under the Equality Act may be unlawful.

Further, whatever criteria are adopted, an authority should retain the power to disapply the criteria for individual applicants in exceptional circumstances.[5]

Local authorities must also show that they have complied with the requirement to 'safeguard and promote the welfare of children' set out in Children Act 2004 when framing their qualification criteria.[6]

The Equality and Human Rights Commission has published an allocations toolkit for local authorities on housing and disabled people.

Statutory guidance endorses the adoption of a residence requirement of at least two years in the local authority area.[7] Such a 'local association' condition is likely to be stricter than the 'local connection' rules under homelessness law, but the guidance advises that exceptions should be made so that vulnerable people are not disadvantaged unlawfully and labour market mobility is not hindered. [8]

The residence requirement can apply to applicants in the reasonable preference category, as long as the local authority exercises discretion where appropriate, acts proportionately, and the provision does not lead to the whole group of people in the reasonable preference category being excluded. In one case, it was lawful for a local authority to exclude an applicant living in overcrowded accommodation based on the fact they did not meet the five years’ residency requirement.[9]

Victims of domestic abuse

Statutory guidance on providing exceptions to residence requirements in order to take account of special circumstances has been strengthened by 'Improving access to social housing for victims of domestic abuse'. This strongly encourages all local authorities to exempt from their residency requirements those who are living in a refuge or other form of safe temporary accommodation in their district having escaped domestic abuse in another local authority area.[10]

Indirect discrimination

The courts have confirmed that in principle a residence requirement as a qualifying criterion in an allocation policy is not unlawful by itself, and can be applied to individuals in reasonable preference categories.[11] However, a local authority must be careful that such a requirement does not unlawfully discriminate under the Equality Act 2010 or the European Convention on Human Rights (ECHR).

In one case, a blanket five year residence requirement was found to be unlawful. It indirectly discriminated against women fleeing domestic abuse to whom the authority had accepted a main housing duty. Without the residence requirement, such women would be entitled to reasonable preference under the scheme. There was no reasonable justification for the discrimination, in breach of Article 14 ECHR and section 19 of the Equality Act 2010.[12]

An allocations policy which restricted applicants from accessing the two highest bands if they did not meet a two year residence requirement was found to discriminate against women. The policy was indirectly discriminatory as women were more likely to be the victims of domestic abuse and to need to flee to another local authority area.[13]

A 10 year residence requirement has been found to be unlawful in respect of the Irish Traveller community. In one case, the authority made an equalities impact assessment which showed the requirement would have an increased negative impact on BME communities but did not consider the position of Irish Travellers. The High Court found that the requirement indirectly discriminated against Irish Travellers and as no evidence had been shown that the discrimination was a proportionate means to achieve a legitimate aim, it was unlawful.[14]

Evidence of proportionality

The courts have considered the kind of evidence which might show that a residence requirement is proportionate and can therefore justify indirect discrimination. There must be reliable empirical evidence of the numbers of persons with a protected characteristic who are not allowed on the housing register and of the numbers excluded for because of the residence requirement.

Furthermore, a local authority should normally take expert advice (for example from the Equality and Human Rights Commission) and review its own files in making a decision, and if not doing so, should be able to justify the failure.[15]

The Secretary of State has the power to prescribe through regulations cases where a requirement to have lived in an area for a defined period of time should not be used when deciding who is not to be a qualifying person.[16] Regulations exempt the following two groups.

Members of armed forces

Where a local housing authority uses a local connection requirement (within the meaning of section 199 of the Housing Act 1996) as a criterion to decide whether a class of persons are qualifying persons, it must not apply that criterion to applicants who are:[17]

• currently serving in the regular armed forces or who had served in the five years preceding their application

• bereaved spouses or civil partners leaving Ministry of Defence accommodation following the death of their spouse or partner, where the death is wholly or partly attributable to the spouse or partner's service in the regular armed forces

• members or former members of the reserve armed forces (this includes the Territorial Army) who are suffering from a serious injury, illness, or disability which is wholly or partly attributable to their service

Guidance also states that MHCLG expect local authorities to consider the 'wider needs of the armed forces community' when applying residence requirements and to be sympathetic to changing family circumstances: recognising, for instance, the difficulties for partners of Service personnel in moving bases.[18]

Additional statutory guidance on improving access to social housing for members of the armed forces strongly recommends extending 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.[19]

The Ministry of Defence Referral Scheme can support veterans to access housing association properties.

Information on housing options for armed forces personnel, including an allocation of social housing, can be found in the following publications:

• House of Commons research briefing on support for UK veterans

• House of Commons research briefing on housing options for serving and ex-military personnel

Find out more about housing options for veterans.

Social tenants: 'Right to Move' for work

With effect from 20 April 2015, where a local housing authority uses a local connection requirement (within the meaning of section 199 of the Housing Act 1996) as a criterion to decide whether a class of persons are qualifying persons, it must not apply that criterion to applicants who:[20]

• are secure or introductory tenants, or assured tenants of a private registered provider of social housing

• qualify for a reasonable preference due to a need to move to the local authority's area to avoid hardship, and

• work or need to move to take up an offer of (non-voluntary) work in the local authority's area (but work that is short-term, marginal or ancillary to work in another district is excluded)

The government refers to this provision as the 'Right to Move' and has issued statutory guidance.

In determining whether a tenant needs to move for work, the guidance advises that the authority should consider a number of factors, including:[21]

• the distance between work and home

• the affordability of transport to work relative to earnings

• whether similar work opportunities are available closer to home

The guidance also addresses the issue whether the work in question meets the criteria set out in the regulation and/or is short-term or marginal.[22] It suggests that working less than 16 hours a week could be considered marginal, and that work contracts that are intended to last less than 12 months, or work that is intermittent or irregular (of particular relevance to the self-employed), could be considered to be short term. Work is ancillary to work in a second district if the main place of work is in the second.

The Code of Guidance urges local authorities to consider how they can use their allocation policies to support 'those households who want to work' as well as those who are 'contributing to their community in other ways'.[23] This could be achieved by making work or community contribution such as volunteering a qualifying condition for acceptance onto the scheme. Alternatively, working households or those where a household member is volunteering, could be awarded additional preference.

As with residence requirements, local authorities must be careful to frame their allocations policies so that qualifying criteria do not unlawfully discriminate.

Indirect discrimination

An allocations scheme which reserved 20% of all available local lettings to 'model tenants' (ie those who had complied with the terms of their previous local authority tenancy) and for working households through separate schemes within the overall scheme, was considered by the Court of Appeal.[24] The Court held that when considering whether any indirect discrimination (under the Equality Act 2010 and/or the European Convention on Human Rights) against women, disabled people, the elderly or non-council tenants as a result of the separate schemes could be justified, the wider scheme as a whole should be considered. In this light, it was relevant that, for example, there were quotas for protected groups.

Nonetheless, in relation to the quota for working households, the impact assessment of its effects on protected groups had been inadequate and the discrimination had therefore been unjustified. However, since the council was in the process of carrying out a major review of its allocations policy and the officer in charge of managing and administrating the housing register was 'alive to' the potential discriminatory effects of the working households scheme in order to avoid a breach of the public sector equality duty, the Court declined to quash the working households scheme on this basis.

In operating its allocations scheme, an authority must not breach section 4(1) of the Rehabilitation of Offenders Act 1974 which requires that a person who has a 'spent' conviction is treated as if the offence was not committed. As such, where the only evidence of antisocial behaviour is an applicant’s spent conviction it would be unlawful to disqualify that applicant from its housing register on the basis of their past conduct.[25]

Indirect discrimination

Where an allocations scheme disqualified people who had been guilty of unacceptable behaviour, the High Court held that this indirectly discriminated against care leavers, who were statistically more likely to be convicted of criminal offences than people who had not been in the care system. However, any such discrimination was justified. Social housing was a scarce resource, and excluding people from it on the grounds of bad behaviour was in the interest of the community as a whole.[26]

The Secretary of State has the power to issue regulations to prescribe classes of person that a local authority must, or must not, treat as a qualifying person.[27]

Before adopting an allocation scheme or making a 'major change of policy' to an existing scheme a local authority must consult with private registered providers of social housing in its area.[28] It is likely that deciding who is to be a qualifying person will be a 'major change of policy'.[29]