Think Tank

A localised problem

We are a rural housing association with a mission to provide affordable houses to people in need who have a strong local connection. Most of our sites have a proviso under the section106 planning gain agreement that properties should be allocated to applicants with a local link. With the change in the Homelessness Act 2002, which says we can only refuse tenancy to people with serious antisocial behaviour records, can we continue to prioritise local people on all lettings or only the 106 sites? And are we obliged to give people estimates of waiting time?

If you are registered with the Housing Corporation your lettings should be on the basis of housing need – but some exceptions apply. One such is if you are bound by some condition, such as in a section 106, reserving the property for lettings to local people. Another is that if your governing instrument – (legally registered rules a social landlord must operate by; or, for a charitable trust, the deed it was formed with) restricts the categories of people whom you can let to. In this case all your lettings would be covered and not just the section 106 consents.

Finally, codes of practice dictate that you should give an idea of likely waiting time, but it is accepted it may be uncertain.

John Bryant, Policy officer, National Housing Federation

Choices, choices

The council in the area where I work has introduced a choice-based lettings scheme where applicants are divided into three priority groups and allocated points for time spent on the rehousing list. But in the light of the Court of Appeal’s decision that Lambeth council’s choice-based lettings scheme was unlawful, how can such schemes be said to give “reasonable preference” to anyone entitled to that? Also, how should the schemes deal with section 167 (4A)(a) of the Housing Act 1996, which says an authority must let applicants know if they’re likely to be given a reasonable preference and whether and when an allocation is likely to be made?

And if applicants are being given points for time spent on the list, does this amount to indirect racial discrimination as groups such former asylum seekers are likely to be new arrivals into the country?

In Lambeth LBC v A and Lambeth LBC v Lindsay the Court of Appeal held that the allocation scheme was unlawful for not prioritising people with urgent need as required by section 167(2) of the Housing Act 1996, and for failing to make “composite assessments” – or not giving people who qualified for two preference groups more priority in the queue than those who only fell into one. The court said the scheme’s priority groups included one unlawful one in which applicants who were less choosy about the place they were given could theoretically end up waiting less time than people who should have been prioritised over them. A choice-based process must preserve equitable allocation of stock and not disadvantage those with preferences. One way to preserve this over time would be to regularly monitor allocations.

As for section 167(4A)(a), it should not cause problems letting people know whether they will achieve preference, and if not, what priority, if any, they can expect. Less straightforward will be estimating waiting times, and you’ll have to just make a judgment using data such as the average times for similar applicants.

Allocation procedures must never discriminate, directly or indirectly, against race, ethnicity, sex or disability. But because you are making allocations based on priority grouping, and not waiting time alone, it is unlikely that the system could be seen as committing indirect racial discrimination against refugees.

The Lambeth scheme ran into trouble for not making a composite assessment – which goes to show that no scheme must be so rigidly drawn as to deny those with a right for additional preference an increased points allocation or re-categorisation.

And you must also draft it in such a way that applicants’ housing needs can be regularly reviewed to account for changing circumstances.

Rosemary Hart, Partner and housing specialist, Trowers & Hamlins