In their first post of 2014, Andrew Arden QC and Robert Brown discuss new housing allocations guidance As 2013 drew to its inevitable close, an efficient civil servant at the Department for Communities and Local Government (DCLG) took the opportunity to publish new guidance that will encourage local housing authorities to restrict the allocation of social housing to - mostly - local people. The additional guidance, Providing social housing for local people: Statutory guidance on social housing allocations for local authorities in England (the Guidance) was published on December 31, 2013. A cynic might suggest that this could be viewed as a good day to bury bad news, when people have their minds on other matters. Given the doom-laden reports then prevalent about an imminent immigrant invasion, however, we suspect that the reverse is true and that the timing was designed to try to get this into, rather than out of, the news. This might be supported by the - rather misleading - press release that accompanied publication of the Guidance.
“The guidance makes clear that only hard-working families, with a well-established residency, relatives or a job in the local area can go on their council’s waiting list, so they are the first [to] benefit when homes become available.” The Guidance follows on from the consultation issued by DCLG in October 2013, discussed in a previous blog.
“The proposals are simplistic. They promote indirect discrimination against foreign nationals and fail to take account of the realities of modern living. The outcome may – as intended – mean shorter waiting lists for social housing but only because authorities will be exercising a carte blanche to exclude large numbers of people who currently qualify and the price of it will inevitably be an increase in the number being housed under Part 7, and for longer periods. It might reduce the numbers on the waiting lists, but it is not going to reduce the number of people actually waiting for social housing so much as sweeping them under the carpet. “… “Why do the words ‘go home foreigners’ ring in our ears?” It might have been hoped that the consultation process would soften some of the harsher elements, so that the Guidance did not suffer from the same failings. Sadly, there is no cup o’ kindness here. Qualification for social housing Instead, much of the consultation paper finds its way into the Guidance without change, some of it almost word for word. Perhaps more importantly, once we get into the substance of the Guidance, it appears that every substantive proposal put forward in the consultation paper has been adopted in the Guidance. (How far this reflects the responses is unknown: they have not yet been published). Thus, at para.13, DCLG notes that
“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 Guidance goes on to say that
“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 two years.” (Emphasis added). The Guidance acknowledges that housing authorities might consider adopting other qualification criteria so that applicants who are not currently resident in the district but still have a “strong association” to it can nonetheless qualify. It is not much of an amelioration, if any. The two examples are: where there is a family association; and, where the applicant or a member of their household is currently employed in the district and has been so for a number of years (para.15). Neither does anything to counter the discriminatory effect of the proposals especially as the treatment of duties under Equality Act 2010 in the Guidance is, to put it mildly, superficial: it does nothing more than reminding authorities of the need to have regard to those duties, without any clue how to do so; merely pointing out a (well-known) set of duties does not equiparate to meaningful guidance. One new aspect is the suggestion that some authorities may choose to share a common allocation policy with neighbouring authorities and adopt a broader residency test which would be met by living in any of those neighbouring districts (para.14). This appears attractive but consider how it works: there is never an exact match between stock size and profile of waiting list; accordingly, the larger the priority pool, the harder it is for anyone else to get in. Exceptions As foreshadowed in the consultation paper, the Guidance does suggest some circumstances in which exceptions should be provided to the residency/association test. The examples, which are said not to be intended to be exhaustive, include: applicants who have to leave another area to escape violence or harm; homeless families (although not, apparently, homeless individuals) and care leavers previously housed by the authority outside of their district; and, applicants who need support to rehabilitate and integrate back into the community (para.19). At para.20, however, the Guidance also suggests that:
“There may also be sound housing management reasons to disapply a residency test for hard to let stock.” Putting the principal thrust of the Guidance together with the exceptions and this proposition, what it translates into, somewhat ominously, is the use of those in particular need to fill up the worst stock. The Guidance also reminds authorities of the Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869), to ensure that members of the Armed Forces are not disadvantaged by residency requirements. Arguably, the only stance-softening on display (or, rather, not on display) is the failure of the suggestion in the consultation paper that in “the case of foreign nationals who are sleeping rough, appropriate options might include reconnection to their own country” to make it through to the final cut. This approach is, however, already extensively used and its absence is unlikely to stop it. The Guidance informs us that there is a further consultation to look forward to in the spring, which will look at options to implement the Government’s new “Right to Move” policy. Doubtless, we will return to this at the time, but in the meantime the Government expects
“housing authorities to make appropriate exceptions to their residency test for social tenants so as not to impede labour market mobility.” We finish by noting that there is also one important addition in the Guidance that had not been found in the consultation paper (para.5).
“Social housing – stable and affordable – is of enormous importance for the millions who live in it now and for those who look to it to provide the support they need in future. The way it is allocated is key to creating communities where people choose to live and are able to prosper.” We would not disagree with the sentiment: it sits ill, however, with the policy thrust of flexible tenancy; and, the Guidance itself speaks volumes about the sort of divided and discriminatory communities which the government has in mind. We are left wondering (to borrow immodestly from Arden & Hunter, “For whom is social housing?”, JHL, 2011, 14(5), 95-98):
“If publicly subsidised housing isn't for the most needy, then who is it for?” The urge to answer this question with “voters” is irresistible.