Local authority duties on preference in housing allocation
A local authority should give reasonable and additional preference to certain categories of applicants in the allocation of housing.
Decisions on qualifying persons
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.
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. 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.
Reasonable preference categories
A local authority's allocation scheme must give reasonable preference to applicants who fall into the following categories:
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
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. This is known as a restricted case.
Preference also had to be given to 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are eligible for assistance, homeless, not in priority need and not intentionally homeless (this section has now been repealed)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
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:
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:
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 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.
The Allocations Code of Guidance sets out examples that the authority should consider, ie those who need to move urgently because:
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. 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.
When deciding whether giving 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.
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.
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.
Preference for members of the armed forces
Local authorities must give additional preference to a person who 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. 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.
On 27 June 2020, the government published additional statutory guidance on improving access to social housing for members of the Armed Forces. The purpose of the guidance is to complement the general statutory guidance on allocations 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
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
Deciding between applicants
Local authorities may adjust the relative priorities between applicants in order to decide to whom it makes an offer of accommodation.
Last updated: 22 March 2021
s.160ZA(7) Housing Act 1996, as inserted by s.146 Localism Act 2011.
R (on the application of Montero) v Lewisham LBC  EWHC 1359 (Admin).
R (on application of Jakimaviciute) v Hammersmith and Fulham LBC  EWCA Civ 1438.
s.166A(3) Housing Act 1996, as inserted by s.147(4) Localism Act 2011.
R (on the application of Alam) v Tower Hamlets LBC  EWHC 44 (Admin).
s.166A(4) Housing Act 1996, as inserted by s.147 Localism Act 2011.
para 4.8 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
para 4.10 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
s.166A(3) Housing Act 1996, as inserted by s.147 Localism Act 2011.
para 4.13 Allocation of accommodation: Guidance for local housing authorities in England, MHCLG, June 2012.
R (on the application of Gullu) v Hillingdon LBC & R (on the application of Ward) v Hillingdon LBC  EWCA Civ 692.
R (on the application of TW) (No.2) v Hillingdon LBC  EWHC 157 (Admin).
R (on the application of TW, SW and EM) v Hillingdon LBC  EWHC 1791 (Admin).
R (Idolo) v Bromley LBC  EWHC 860 (Admin).
Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012 SI 2012/2989.
para 29 Improving access to social housing for members of the Armed Forces, MHCLG, June 2020.
para 30 Improving access to social housing for members of the Armed Forces, MHCLG, June 2020.
Improving access to social housing for members of the Armed Forces, MHCLG, June 2020.