“(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation. (2) For the purposes of this Part a local housing authority allocate housing accommodation when they— (a) select a person to be a secure or introductory tenant of housing accommodation held by them, (b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or (c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord.”
“(1) A person has a local connection with the district of a local housing authority if he has a connection with it— (a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice, (b) because he is employed there, (c) because of family associations, or (d) because of special circumstances.” “(1) A person has a local connection with the district of a local housing authority if he has a connection with it— (a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice, (b) because he is employed there, (c) because of family associations, or (d) because of special circumstances.”
“Purpose of the guidance 6. The government has made clear that we expect social homes to go to people who genuinely need and deserve them. That is why the Localism Act has maintained the protection provided by the statutory reasonable preference criteria which ensure that priority for social housing continues to be given to those in the greatest housing need. 7. The Localism Act has also given back to local authorities the freedom to better manage their social housing waiting list, as well as providing authorities with greater flexibility to enable them to tackle homelessness by providing homeless households with suitable private sector accommodation. Local authorities can now decide who qualifies for social housing in their area, and can develop solutions which make best use of the social housing stock. This guidance is intended to assist housing authorities to make full use of the flexibilities within the allocation legislation to better meet the needs of their local residents and their local communities. 8. The government has also taken decisive steps to increase the supply of affordable housing, … 9. This investment in new affordable housing will help to meet housing need. We now want to see local authorities take an approach to social housing allocations which gives greater priority to those in need who have invested in and demonstrated a commitment to their local community. 10. The Prime Minister has made clear the government’s determination to tackle the widespread perception that the way social housing is allocated is unfair, and to address concerns that the system favours households who have little connection to the local area over local people and members of the Armed Forces. Another important aim of this guidance, therefore, is to encourage authorities to be open and transparent about who is applying for and being allocated social housing in their area. Qualification for social housing … 12. The government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market. 13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least 2 years. … 15. Housing authorities may wish to consider whether there is a need to adopt other qualification criteria alongside a residency requirement to enable and ensure that applicants who are not currently resident in the district who can still demonstrate a strong association to the local area are able to qualify. Examples of such criteria might include: • family association – for example, where the applicant has close family who live in the district and who have done so for a minimum period of time • employment in the district – for example, where the applicant or member of their household is currently employed in the district and has worked there for a certain number of years 16. Whatever qualification criteria for social housing authorities adopt, they will need to have regard to their duties under theEquality Act 2010 , as well as their duties under other relevant legislation such assection 225 of the Housing Act 2004 . … Providing for exceptions 18. Housing authorities should consider the need to provide for exceptions from their residency requirement; and must make an exception for certain members of the regular and reserve Armed Forces – … . Providing for appropriate exceptions when framing residency requirements would be in line with paragraphs 3.22 and 3.24 of the 2012 guidance. 19. It is important that housing authorities retain the flexibility to take proper account of special circumstances. This can include providing protection to people who need to move away from another area, to escape violence or harm; as well as enabling those who need to return, such as homeless families and care leavers whom the authority have housed outside their district, and those who need support to rehabilitate and integrate back into the community. 20. There may also be sound policy reasons not to apply a residency test to existing social tenants seeking to move between local authorities. Housing authorities should assist in tackling under- occupation, for example allowing tenants to move if they wish to downsize to a smaller social home. There may also be sound housing management reasons to disapply a residency test for hard to let stock. 21. These examples are not intended to be exhaustive and housing authorities may wish to consider providing for other appropriate exceptions in the light of local circumstances. In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances. … Prioritising local connection 26. Housing authorities have the ability to take account of any local connection between the applicant and their district when determining relative priorities between households who are on the waiting list (section 166A(5). For these purposes, local connection is defined by reference to section 199 of the 1996 Act. 27. Housing authorities should consider whether, in the light of local circumstances, there is a need to take advantage of this flexibility, in addition to applying a residency requirement as part of their qualification criteria. Examples of circumstances in which the power might be useful would include: • dealing sensitively with lettings in rural villages by giving priority to those with a local connection to the parish, as part of a local lettings policy … • where a group of housing authorities apply a wider residency qualification test, to give greater priority to people who live or work (or have close family) in any of the partner authorities’ own district.”
“There is a severe shortage of social housing in Lewisham. There are currently more than 9,000 applicants on the housing register. The number of lettings under Lewisham’s housing allocation scheme in recent years has been approximately 1,000 per annum (including general needs lets, special lets and housing moves). … In consequence of the above mismatch between demand and supply, for successful applicants the average waiting time between registration on Lewisham’s housing register and an allocation is, and has been consistently for a number of years, in excess of 100 weeks. That is the average waiting time for successful applicants. The average waiting time for all applicants on the housing register is currently approximately 6 years. … Overcrowding is a significant national and regional problem: it has been estimated that 275,000 households in London are overcrowded. According to 2011 Census data, some 14,000 households in Lewisham were overcrowded. Overcrowding is the most common reason for applicants seeking rehousing on Lewisham’s housing register. Over 5,000 of those on the housing register (more than half) have been awarded priority on the basis of overcrowding. The numbers of applicants registered on Lewisham’s housing register who have been awarded priority due to overcrowding are currently as follows: Band 3 (lacking one bedroom) 4,612 Band 2 (lacking two or more bedrooms) 577”
“In Lewisham, there are many more people who need or who want to move, than there are homes available for them to move to. There are not enough rented homes owned by the Council and by partners (Housing Associations and Tenant Management Organisations) to offer housing to all who want it, or even to everyone who needs a home. To illustrate the size of the problems we face, the number of households on the Housing List has increased to 9,500, whilst the number of properties available to let has reduced to around 1,000 per year. There is a particularly severe shortage of family-sized properties. Our Lettings Policy is a way to distribute a small number of homes as fairly as possible, while using the resources available to us as efficiently as possible, retaining flexibility to respond to fluctuations in demand from different client groups, preventing homelessness and offering choice to applicants where we can. Everyone on the housing list has a reason for wanting to move, but in general we can only offer homes to those in the greatest need. This policy sets out our criteria for deciding who should have priority for available housing. We must comply with the law, which says that we must give “reasonable preference” to certain groups of people. We have had to make some tough choices in order to balance our objectives of fair allocation, efficiency, flexibility, preventing homelessness and choice and we appreciate that not everyone will agree with the decisions that we have made. It is not always easy to appreciate why someone else should be given priority over you and your family. However, in drawing up this policy we have used our knowledge and experience of allocating housing to many thousands of households across Lewisham. … We operate a Choice Based Lettings Scheme called Lewisham Homesearch. This document explains how the scheme works. Choice Based Lettings means that applicants can express an interest in the homes they wish to be considered for. However, in reality, the shortage of housing is so severe that any applicants who are restrictive about their choices may not be able to find housing. In some circumstances we will directly allocate properties to those groups we consider to be in most urgent need. … If you are allocated a tenancy or nominated for a Housing Association tenancy, to begin with this is likely to be a probationary or introductory tenancy (sometimes also called a “starter tenancy”). Unless steps are taken to end it within the probationary period, usually a year, this will be converted into a full secure or assured tenancy after the probationary period. … This allocations scheme has been written to comply with the provisions of theHousing Act 1996 as amended by theHomelessness Act 2002 and theLocalism Act 2011 . It also takes into account the Code of Guidance on Allocations June 2012 and Supplementary Guidance December 2013 Providing social housing for local people and March 2015 Right to Move. It has been drafted in line with the council’s homelessness strategy, Tenancy Strategy, the London Housing strategy and in accordance with the Council’s equality duties.” accordance with the Council’s equality duties.”
“2.2 Disqualification from the housing list or from receiving an offer As a result of the severe shortage of housing in Lewisham, we have identified certain groups of applicants to whom we will not normally allocate housing. Such applicants are either disqualified from being on the housing list or are disqualified from receiving an offer (although they are allowed to be on the housing list). The Council considers that the factors set out in the grounds for disqualification below will ordinarily outweigh any reasonable preference to which an applicant is entitled. … The effect of being disqualified from the housing list is that your application will be cancelled. During the period of disqualification you will be unable to reapply. When the period of disqualification comes to an end, if you wish to pursue your application again, you will have to reapply. Your application will be taken to have been made on the date of your reapplication. …”
“2.2.2 If you do not have a local connection with Lewisham If you do not have a local connection with Lewisham, your application will be disqualified for a period of 6 months from the date of our decision. Local connection means that: - You are currently resident in Lewisham and have been resident for a period of 5 years - The Council have accepted that they owe you the main housing duty undersection 193 of the Housing Act 1996 (as amended by theHomelessness Act 2002 ) and you have been placed in temporary accommodation by the Council; - You need to move to Lewisham for work, and will suffer hardship if you cannot move: ◦ You work in Lewisham and need to move in order to enable you to continue working in Lewisham; or ◦ You need to move to Lewisham to take up an offer of employment in Lewisham; and ◦ In either case, the work is not short-term, marginal or ancillary or voluntary work; or - You give or receive care or support from a family member who is already normally resident in Lewisham. … If you have recently left prison or other institution, we will consider whether or not you have a local connection bearing in mind where you were living before you were imprisoned or institutionalised and whether you have family and other connections in the Borough. We will ask you for evidence of your local connection with your application. This may include proof of residence, evidence from your employer or a social care assessment. This ground of disqualification does not apply to transfer applications from existing secure tenants of the Council or existing secure or assured tenants of our Partner Landlords, applicants nominated via sub-regional and pan-London agreements or applications from: - those who are serving or have served in the regular armed forces within the period of 5 years preceding their application - or a person has recently ceased, or will cease to be entitled to reside in accommodation provided by the Ministry of Defence following the death of that person’s spouse or civil partner where the spouse or civil partner has served in the regular forces; and their death was attributable (wholly or partly) to that service - or is serving, or has served in the reserve forces and who is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to that service.”
“2.2.7 Reinstatement in exceptional cases In exceptional cases, the Council will reinstate a disqualified application despite the existence of one or more grounds of disqualification or make an offer to an applicant disqualified from receiving an offer, despite the existence of rent arrears. In order to be reinstated, an applicant must apply to the Housing Needs Manager, who will reinstate the application or allow an offer only if satisfied that disqualifying the application or disqualifying the applicant from receiving an offer would cause exceptional hardship to the applicant and their household. There will be no further review of the decision of the Housing Needs Manager to refuse to reinstate a disqualified application or to allow an offer to be made to an applicant disqualified from receiving an offer. …”
“You can apply for council housing if you: … have lived in the borough continuously for the last five years”
“…you have not resided in the Lewisham borough for a minimum of 5 years. You stated you moved to the Lewisham borough on06/06/2018 so under our current policy you will not be able to re-apply until06/06/2023 .”
“TRANSFERS WITH RENT ARREARS (more than 2 weeks) To hear appeals where: (a) There is a Social or Medical need award of 60 points in one single category. (b) Applicants have more than two weeks worth of rent arrears but have made substantial efforts to reduce arrears. (c) Any other exceptional circumstance.”
“Fiona Davies, the solicitor who appeared for the Council before the Panel, … had earlier told the appellant's solicitors that there would be an Appeals Panel hearing because, independently of the result of the medical assessment for which the appellant had been referred, exceptional circumstances existed. She specifically told the appellant's representative of the wide nature of the Appeals Panel's discretion. The record of the hearing shows that Ms Davies explained that the Council's rent arrears policy could be “waived in exceptional circumstances”
“once it is conceded that a policy which takes account of rent arrears is not unlawful, a local authority is free to choose which procedure to adopt for determining preferences. Different local authorities adopt different procedures: some award points, whilst others do not allow applicants with particular shortcomings on to the waiting list. The obligation to give reasonable preference was in this case fulfilled by the consideration given to the appellant's case by the Appeals Panel. That is the means by which the Council ensured that those in any of the first three categories of section 22 were afforded reasonable preference. But reasonable preference means what it says. If two applicants are otherwise equal, but one is within one of the first three categories of section 22, that one will be preferred. It is for the Council to decide what weight to give to relevant factors. Reasonable preference is to be equated with extra weight: it cannot be determinative per se. … the Council must have power to determine whether in the circumstances an applicant's arrears outweigh the reasonable preference that has to be given; and there would be no point in taking rent arrears into account unless they could in a proper case outweigh the statutory factors.”
“I agree with Mr Findlay's submissions. If section 22 simply required “preference” to be given, Mr Gallivan's argument would be correct. But it does not: it requires “reasonable preference”
“There is nothing to suggest that the Appeals Panel regarded its power to treat the appellant's circumstances as exceptional as being so circumscribed that they could not accord her the reasonable preference to which section 22 entitled her; nor is there any ground for contending that the balancing exercise was not fairly conducted by the Appeals Panel at the hearing of the appellant's appeal. The Appeals Panel would have been entitled to pay regard to any substantial efforts to reduce arrears, even though they exceeded two weeks' arrears, and to any other exceptional circumstances, including social or medical need. The scope of “exceptional circumstances” was unfettered. The Council's policy, of which the appeal process was an integral part, was in my judgment sufficiently flexible to comply with the Council's duty under section 22. It would be absurd if local authorities were obliged to house or rehouse tenants who, whatever their need, have persistently failed to pay their rent, and who have made no substantial efforts to reduce the arrears, and whose circumstances are not to be regarded as exceptional. For the reasons summarised by the judge in the long passage that I have read from his judgment, which I have merely expressed in my own words, this ground of appeal fails.”
“… Even in the case of applications by those within the criteria which entitle them to preferential treatment, the express requirement that the preference should be reasonable rather than absolute entitles the housing authority, in addition, to consider any other relevant fact including the extent to and circumstances in which the applicants have failed to pay due rent or have otherwise been in breach of the obligations of their existing or earlier tenancies. Such considerations are not excluded from the selection process. The statutory obligations imposed by section 22 therefore requires that positive favour should be shown to applications which satisfy any of the relevant criteria. To use colloquial language they should be given a reasonable head start. Thereafter all the remaining factors fall to be considered in the balancing exercise inevitably required when each individual application is under consideration. If despite the head start the housing authority eventually decides on reasonable grounds that the application for a tenancy must be rejected this will not constitute a breach of the obligations imposed by section 22.”
“35. … Section 167(2A) [now 166A(5)] expressly permits a scheme to determine priorities as between people who fall within subs. (2) [now 166A(3)] taking into account factors which include financial resources available to the applicant and any local connection with the authority's district. But it does not follow that such factors are otherwise irrelevant and must be excluded from a scheme. The discretion in s.167(6) [now 166A(11)] is wide enough to permit an authority to take such factors into account when considering the priority to be given to applicants who fall outside s.167(2) [now 166A(3)].” (current statutory numbering interpolated) After citing that statutory guidance, which was in key respects similar to the current guidance, Dyson LJ said: “36. It is clear, therefore, that a scheme may give reasonable preference to applicants who do not fall within s.167(2) provided that such non-statutory preferences do not dominate the scheme at the expense of the statutory preference categories. This prohibition on domination of the scheme at the expense of the statutory preference categories reflects the fact that the discretion given by s.167(6) is expressed to be subject to the earlier provisions of s.167. 37. It is not in dispute that in certain circumstances the scheme awards fewer points to an applicant who falls within s.167(2) than to someone who does not. But in the light of s.167(6) and the Code of Guidance, it does not necessarily follow that the scheme is unlawful. It is necessary to look at the scheme as a whole and not at an individual case and consider whether the fact that non-statutory preference categories may in certain circumstances be awarded more points than statutory preference categories means that the scheme permits the former to dominate at the expense of the latter.”
“37. It is clear from section 167(6) that, subject to complying with the other provisions of section 167 , and subject to rationality and compliance with any other relevant legislation, the terms of any allocation scheme are a matter for the local housing authority (“the authority”). Paras (a) to (e) of section 167(2) requires every scheme to give “reasonable preference” to those applicants whose households include at least one person falling within one or more of those paragraphs. The primary issue on this appeal is whether, as the courts below held, section 167 requires an authority to go further and accord priority as between reasonable preference applicants by reference to the relative gravity of their needs, and, if so, the extent to which such according of priority is required.” “46. … as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that Judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge” and: “61. Mr Andrew Arden QC, for Newham, told your Lordships that, though the need of the Ahmad family for alternative accommodation is undoubtedly pressing, indeed urgent, there are a great number of other applicants whose housing needs would be regarded by most people as even more pressing or urgent. Unfortunately, I have no difficulty in accepting that submission ... 62. This point also highlights how inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part 6 of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the Scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second guess Newham.”
“The problem with this argument is that section 167(2) only requires that these groups be given a “reasonable preference”
“1.28 Local authorities will no longer be forced to include on their waiting lists for social housing those with no real need and no realistic prospect of ever receiving a social home. Instead they will have the freedom to decide who should qualify to be considered for social housing, while continuing to ensure that priority for social housing goes to those most in need. That will allow landlords to operate a more focused waiting list – one that better reflects need and local priorities and can be more readily understood by local people.”
“37. Whilst proposing that change to the way the homelessness duty could be brought to an end, the consultation paper plainly contemplated a linkage between the power to decide who was to qualify for social housing and the duty to give reasonable preference to, among others, those to whom the homelessness duty continued to be owed: “4.8 We therefore intend to legislate to give back to local authorities the freedom to determine which categories of applicants should qualify to join the waiting lists …. 4.9 We take the view that it should be for local authorities to put in place arrangements which suit the particular needs of their local area. Some local authorities might restrict social housing to those in housing need (e.g. homeless households and overcrowded families). Other local authorities might impose residency criteria or exclude applicants with a poor tenancy record or those with sufficient financial resources to rent or buy privately. Others may decide to continue with open waiting lists …. 4.10 We want to provide local authorities with the power to decide who should qualify to be considered for social housing, while retaining a role for government in determining which groups should have priority for social housing through the statutory reasonable preference requirements …. 4.11 … We believe that the statutory duty on local authorities to frame their allocation scheme to give ‘reasonable preference’ to certain groups, together with local authorities' wider equalities duties, should serve to ensure that local authorities put in place allocation systems which are fair and that those who are vulnerable and in housing need are properly protected. However, to provide a safeguard, we intend to reserve a power to prescribe by way of regulations, that certain classes of people are (or are not) qualifying persons, if there is evidence that people in housing need are being excluded from social housing without good cause. … 4.15 The government believes that social housing should continue to be prioritised for the most vulnerable and those who need it most. We think the best way to ensure a consistent approach to meeting housing need is to continue to set the priorities for social housing centrally. Consequently we do not propose to remove the reasonable preference requirements in the allocation legislation.” 38. Those proposals were confirmed in the Government's response to consultation, Local decisions: next steps towards a fairer future for social housing (February 2011) and were given effect in the amending legislation. 39. The policy considerations evidenced in that consultation material provide further support for my view as to the relationship between section 160ZA(7) and section 166A(3) .”
“The defendant correctly identifies that the purpose of the statutory amendments introduced by theLocalism Act 2011 is to permit local housing authorities to have greater control of their housing allocation schemes in particular by permitting them to specify classes of persons who would not qualify for an allocation; that statutory guidance which local housing authorities are obliged to take into account has consistently recognised that residency conditions are one form of control which may be introduced; the authorities ( R (Jakimaviciute) v Hammersmith and Fulham London Borough Council[2015] PTSR 822 and R (Hillsden) v Epping Forest District Council[2015] 3 All ER 490 ) confirm that residence conditions are not unlawful per se and can be applied in cases involving reasonable preference; and that the claimant does not suggest that a residence condition per se (a) does not have an objective or reasonable justification in terms of the reasonable and proper policy aims which the defendant is pursuing or (b) that there is no reasonable relationship between those two things.”
“21. In fact, four London boroughs, each with residence criteria, have adopted policies that do. Islington, Newham, Redbridge and Waltham Forest have policies that provide a form of exception to residence criteria where the applicants are owed a homelessness duty under Part VII of the 1996 Act that the authority has accepted. True it is that they form a small subset, but it is evidence of the ability to frame a housing allocation policy in a way that includes a residence requirement yet ensures that the reasonable preference duty is complied with. 22. The inability of the policy to identify those who meet the 166A(3) criteria but who do not fulfil the residency criteria highlights the consequences of the exceptionality provision. In this case, the claimant's application was, on the evidence, automatically rejected because she did not meet the residency criteria. No consideration was given to the 166A(3) criteria under the exceptionality provision, nor could it be under the defendant's policy. It is noteworthy that in R (Jakimaviciute) v Hammersmith and Fulham London Borough Council[2015] PTSR 822 and R (Hillsden) v Epping Forest District Council[2015] 3 All ER 490 it was not argued that the exceptionality provision could save the authority's policy. Moreover, para 21 of the 2013 statutory guidance identifies in the section dealing with the need for the provision of exceptions from a residency requirement that “In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances”
“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.” (Judgment § 2) It is not difficult to see how such a rule undercut the reasonable preference category in section 166A(3)(b) of the Act: “people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of theHousing Act 1985 ) or who are occupying accommodation secured by any such authority under section 192(3)”
“2.2.2 If you do not have a local connection with Lewisham If you do not have a local connection with Lewisham, your application will be disqualified for a period of 6 months from the date of our decision. Local connection means that: - You are currently resident in Lewisham and have been resident for a period of 5 years …”