Local authority allocation schemes
An explanation of local authority allocation schemes and exceptions to the rules governing the allocation of social housing.
- Definition of an allocation
- Exceptions to allocation rules
- Non-statutory succession
- Distinction between allocation and letting
- Allocation in accordance with the scheme
- Statutory guidance on allocation of accommodation
- Offering a choice of accommodation
- Points-based and banding schemes
- Reasonable and additional preference in prioritising
- Schemes and preference
- Avoiding discrimination in local priorities
- Offers to carers
- Offers to members of the Armed Forces
- Use of discretion
- Additional factors when deciding between applicants
- Decisions and reviews
Definition of an allocation
An allocation is defined as:
nominating a person to be a secure, flexible or introductory tenant of another local authority
nominating a person to be an assured or assured shorthold tenant of a housing association or other private registered provider of social housing (PRPSH) 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
Exceptions to allocation rules
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:
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 grants a secure tenancy to a former owner-occupier or tenant of a defective dwelling that the authority has repurchased
a tenancy is offered to a family intervention tenant
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.
Distinction between allocation and letting
There is a distinction between a local authority's duty to allocate accommodation in accordance with its allocation scheme and its power to dispose of accommodation by the grant of a secure tenancy.
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.
Allocation in accordance with the scheme
Every housing authority must have an allocation scheme to determine housing priorities, and a procedure to be followed when allocating accommodation. 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.
A local authority can prioritise between applicants if it is in accordance with its allocation scheme. 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.
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.
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.
Transfers of certain existing tenants fall outside the statutory regime.
Statutory guidance on allocation of accommodation
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.
The current Allocation of accommodation: guidance for local housing authorities in England was published in June 2012 and updated in January 2021.
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
Offering a choice of accommodation
Points-based and banding schemes
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.
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 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.
Reasonable and additional preference in prioritising
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
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.
Schemes and preference
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:
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
In one case, 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
Avoiding discrimination in local priorities
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. 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.
Offers to carers
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.
Offers to members of the Armed Forces
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.
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.
Use of discretion
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.
Additional factors when deciding between applicants
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:
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. 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
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
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'
The Court of Appeal held that the applicant who had 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 their household’s overcrowding within the meaning of the housing allocation scheme. The property was the only affordable accommodation at the time and the fact that the applicant’s children subsequently reached the age at which the household became statutorily overcrowded was not a deliberate act.
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.
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.
Decisions and reviews
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.
Last updated: 27 May 2021
s.159(2)(a) Housing Act 1996, as amended by the Homelessness Act 2002; see also s.154 Localism Act 2011.
s.159(2)(b) Housing Act 1996, as amended by Homelessness Act 2002; see also s.154 Localism Act 2011.
s.159(2)(c) Housing Act 1996, as amended by Homelessness Act 2002.
s.159(4A) and (4B) Housing Act 1996, as inserted by s.145 Localism Act 2011; The Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 SI 2012/1463 (C.56)
s.161 Housing Act 1996, as amended by Homelessness Act 2002.
reg 3 Allocation of Housing (England) Regulations 2000 SI 2000/70.
reg 3 Allocation of Housing (England) Regulations 2000 SI 2000/702.
Allocation of Housing (England)(Amendment)(Family Intervention Tenancies) Regulations 2008 SI 2008/3015.
under Part 6 Housing Act 1996.
under s.32 Housing Act 1985.
Birmingham CC v Qasim  EWCA Civ 1080.
s.166A(1) Housing Act 1996, as inserted by s.147 Localism Act 2011.
R (on the application of C) v Islington LBC  EWHC 1288 (Admin).
s.166A(14) Housing Act 1996, as inserted by s.147 Localism Act 2011; R (on the application of Faarah) v Southwark LBC  EWCA Civ 807.
R (Ades) v Camden LBC  EWHC 1489 (Admin) 13 June 2019.
R (on the application of Nur) v Birmingham CC  EWHC 3526
Nur & Ors, R (on the application of) v Birmingham City Council  EWHC 1138 (Admin).
s.166A(2) Housing Act 1996, as inserted by s.147 Localism Act 2011.
R (on application of Jakimaviciute) v Hammersmith and Fulham LBC  EWCA Civ 1438.
R (on the application of Alemi) v Westmister CC  EWHC 1765 (Admin).
R (on the application of Ahmad) v Newham LBC  UKHL 14; see also paras 1.7, 4.19, 4.21 and 4.27 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
R (on the application of Woolfe) v Islington LBC  EWHC 1907 (Admin).
R (on the application of C) v Islington LBC 2017 EWHC 1288 (Admin).
para 4.29 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
paras 4.24 to 4.26 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
Leicester CC v Shearer  EWCA Civ 1467; R (on the applications of KS & Ors) v Haringey LBC  EWHC 587 (Admin).
s.166A(5) Housing Act 1996, as inserted by s.147 Localism Act 2011; see also paras 4.15 to 4.18 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
See, for example: R (on the application of Carney) v Bolton at Home Ltd  EWHC 2553 (Admin).
See, for example: Babakandi v Westminster CC  EWHC 1756 (Admin).
R (on the application of Osman) v Harrow LBC  EWHC 274.
R (on the application of XC) and Southwark LBC  EWHC 736 (Admin). See also R (on the application of TW, SW and EM) v Hillingdon LBC  EWHC 1791 (Admin).
Flores, R (on the application of) v Southwark LBC  EWCA Civ 1697.
R (on the application of Cranfield-Adams) v Richmond Upon Thames LBC  EWHC 3334 (Admin).
Birmingham CC v Ali and others: Moran v Manchester CC  UKHL 36.
s.166A(1A) and s.167A(9) Housing Act 1996, as inserted by s.147 Localism Act 2011.