Local authority duties on preference in housing allocation

Within certain limits, local authorities have the right to decide who is a qualifying person for the purposes of their housing allocation schemes, and exclude those who are not qualifying persons from the housing register.[1]

It is not unlawful for an allocation scheme to contain a disqualification criterion that affects some people who would be entitled to reasonable preference if they were allowed to join the housing register.[2]

Where a group of persons is entitled to reasonable preference, such as homeless people, the allocation scheme cannot be drawn to exclude most or all of that group.[3] In one case, an allocations scheme was found to be unlawful as it excluded all homeless people except those owed the main housing duty. [4]

A local authority's allocation scheme must give reasonable preference to applicants who fall into the following categories:[5]

Homeless people

This is 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.[6]

People owed certain homelessness duties

This includes 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 does 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.[7] This is known as a restricted case.

People occupying insanitary or overcrowded housing

This covers 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:[8]

• 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 who need to move on medical or welfare grounds

This covers 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:[9]

• 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

Many allocation policies determine between higher and lower levels of medical or welfare needs using assessments by relevant professionals. In one case, the High Court found that a local authority was not wrong to refer to the medical opinion of a consultant psychiatrist who had not examined the applicant.[10]

People who need to move to avoid hardship

This covers 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.

Local authorities can give additional preference to particular groups of people who have a reasonable preference, if they have urgent housing needs.[11]

The Allocations Code of Guidance sets out examples that the authority should consider, ie those who need to move urgently because:[12]

• 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

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

Local authorities need to be careful not to unlawfully discriminate when awarding additional preference.

Find out more about direct and indirect discrimination in housing and the public sector equality duty on Shelter Legal.

Residence in the local authority area

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.[13]

When deciding whether additional preference on the grounds of residence is proportionate, local authorities need to consider empirical evidence of how affected communities such as Travellers are affected. They should consult expert organisations such as the Equality and Human Rights Commission and their own case files.[14]

In one case, a local authority allocations policy was found to be unlawful when it treated transfer applicants from the borough more favourably than reciprocal transfer applicants who lived outside the borough. The policy indirectly discriminated against women who needed to move area to flee violence.[15] Although the policy was unlawful, it was not quashed as the court found that the policy could be amended to become lawful.

Working households

Giving additional preference to working households is often lawful. The courts have accepted that although it involves 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.[16]

Delays

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.

In one case, a severely disabled applicant with high priority on the register had been confined to his bedroom for twenty months before a suitable property became available. The High Court found that 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.[17]

Local authorities must give additional preference to a person who is in a reasonable preference category, has an urgent housing need and:[18]

• 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.[19] 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.[20]

Guidance on access to social housing for the armed forces

The government has published additional statutory guidance on improving access to social housing for members of the Armed Forces.[21]

The guidance covers 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

• 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

• 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

• 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

• recommendation to review existing allocation policies and revise them where appropriate to reflect the new guidance

Find out more about social housing allocations for veterans on Shelter Legal.