Housing Allocation and Homelessness: Law and Practice

This is the second edition of this book, written by Jan Luba QC and Liz Davies, both of Garden Court Chambers and both very well known to anyone in the sector.

The overall aim of the book, as the subtitle suggests, is to provide both a comprehensive view of the law in these areas, but also to provide the clear and practical information required by advisors and practitioners in dealing with individual cases. It generally succeeds in this admirably.

The first part deals with allocation policy and practice. This is a substantial and detailed address which starts with an outline history of the statute and government guidance governing local authority allocation policies and procedures, including the major amendments of the Housing
Act 1996 and the Homelessness Act 2002.

This is highly useful for anyone new to advising on allocations who is trying to make sense of the complex history of case law. An overview of the current position is followed by a detailed breakdown of eligibility, allocation schemes and the practicality of being allocated a property.

The latter chapter acknowledges the transformation in the legal landscape brought about by the House of Lords in R(Ahmad) v Newham LBC and the green light given for simplified banding in choice based schemes. The topic of ‘challenges to allocation schemes’ now occupies just two pages.

As well as dealing with nominations to Registered Social Landlords by Local Authorities, the book also has a separate section on lettings by RSLs and their duty to maintain a lettings policy, a useful inclusion given the potential for challenge by judicial review, following Weaver v L&Q.

Although a stop press dated 91 March 2010 at the start of the book records the Tenants Services Authority becoming the regulatory body for social housing, both RSL and Local Authority, events threaten to overtake this in short order, with the threatened demise of the TSA. This is unlikely to have an immediate effect on the relevant statutory requirements and guidance, however.

The second section deals with homelessness. Opening chapters on strategy and on homeless prevention policy and guidance set the broad context. The next chapters focus on the individual applicant and the local authority’s powers and duties, from making an application, through the initial inquiry and decision process, to the statutory checklist of being homeless, eligible, in priority need and not intentionally homeless familiar to any housing advisor.

The following chapters, logically organised, deal with interim accommodation, duties and powers to assist the homeless, suitability of accommodation, reviews and appeals of decisions (including judicial review), and other help with accommodation from Local Authorities outside Part VII Housing Act 1996.

These chapters are clearly set out, detailed and fully supported with reference to relevant case law, as one would expect. Case law is up to date to the end of February 2010, including Tomlinson v Birmingham City Council in the Supreme Court.

The organisation of the sub-sections throughout these ‘practical’ chapters is particularly helpful to an advisor trying to find their way through this most complex interaction of fact and law, with a clear breakdown into points and issues to consider.

A final chapter considers the contracting out of homeless and allocation functions by Local Authorities. This last chapter is interesting, given the increasing tendency of Councils to contract out homelessness functions and potentially of use to advisors, as very recent cases on ‘contracting out’ of review functions have shown. Full appendices with relevant statute, SIs and guidance complete the book.

Overall, this is a worthy competitor to the LAG Homelessness and Allocations. On allocation, this book is considerably more detailed, and I would recommend it to anyone trying to fathom the basis and requirements of allocation policies, although by the very nature of the statute the discussion is inevitably at a fairly general level.

On homelessness, I wouldn’t want to chose between the two, on the content. Each has its own style and approach and which they prefer is something for the readers to decide.

Giles Peaker, our reviewer, is an assistant solicitor in the Housing and Public Law team at solicitors Anthony Gold.

Housing Allocation and Homelessness: Law and Practice can be purchased online from Amazon (affiliate link).

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…..a personal if informed rant!

The Conservative / Lib Deb coalition housing benefit plans

So the new coalition government is gradually putting a plan together and have turned their eyes on housing benefit reforms. They have made bold and popular statements that appeal to many of us, me too, but few seem to be looking at the consequences of what they are saying. If you have worked in housing a long time then they jump out at you like a jack in the box.

I just want to examine one proposal, which is the plan to cut people’s housing benefit by 10% if they have been out of work for 12 months and look at where this will lead us.

Cutting housing benefit by 10% of the applicant has been out of work for 12 months

An innocuous enough proposal and one that will get many nods of agreement. The papers have always been full of articles on benefit cheats, scroungers, mis-use of tax payers money etc.  Just the other day I saw a piece on TV of a man on disability benefits claiming that he couldn’t walk more than a few yards un-aided who was filmed by benefit fraud officers energetically playing football for his local team.

I recently had to deal with a family with 8 children and a ninth due in November whose benefit payments were over £600 a week and that was without housing benefit on top of that. The council have a legal duty to re-house them but don’t have a property big enough so will have to spend thousands finding them a home and keeping them in it.

This prompted much talk in the office about benefit reforms and personal responsibility. Government statements aimed at tackling similar situations will always have emotional resonance for a huge majority of the population. We tend to respond in a knee jerk way…. even me, but what will it really mean if they go ahead with this 10% cut plan, marked for 2013?

Empowerment

A couple of years back the labour government decided to introduce a housing benefit scheme called ‘Local Housing Allowance’.

Basically this means that tenants of private landlords who are claiming housing benefit should no longer have the right to sign payments directly over to the landlord accept in specific circumstances. The reasoning behind this was to stop treating HB claimants like irresponsible children and to empower them to take charge of their finances.

Everyone I know who works in some way in the private rented sector thought this was the most ludicrous idea the government ever had, for 3 reasons:-

• Although some tenants would deal with the matter responsibly, what of the HB claimants with drink, drug or gambling problems or who were just terrible at budgeting ,who suddenly find themselves with an extra 5, 6 or 700 pounds in their bank accounts? How much of it would end up being used as rent?
• Rent arrears would rise and with it evictions and homelessness claims.
• Landlords would be less likely to rent to benefit claimants because of concerns over receiving rent.

The same issues crop up with this proposed 10% cut in HB.

Don’t get me wrong, I am more in favour of personal empowerment than most, but I also know you don’t achieve that by just giving a person their rent payments.

Reluctance to rent

For many years now the windows of most letting agents have had stickers saying ‘No DSS’, (even though this is now defunct) really meaning, no housing benefit claimants. Landlords have similarly been cautious. LHA put many landlords I speak to in a very reluctant mood. Procurement officers that I know working for local authorities tell me how much work they have to do to reassure landlords about tenants they are trying to place with them.

Some councils deposit guarantee schemes have closed down completely when deposits have been withheld because of rent arrears caused by LHA and the deposit scheme budget quickly dwindled.

Once word gets around that there will be a definite cut in HB how many landlords will go back on the standard old ‘No DSS’ approach?  As I have written elsewhere councils are under a duty to provide housing for people who pass the full homelessness assessment route but don’t have enough council housing to fulfil the legal obligation and look to private landlords to fill the gap. The 10% cut will have a big effect here.

Empowerment Revisited!!!!!

The government states that cutting 10% off HB for people who have been on job seekers allowance for 12 months will encourage people to find work.

I am going to sound a bit cynical here so apologies in advance. Just as introducing LHA is not enough on it’s own to empower people, neither is cutting people’s benefits.

Every single day I meet so many benefit claimants who think that once they have filled in the forms their involvement ends there and rent is then the council’s responsibility.

A high proportion of people I deal with don’t even know how much rent they pay or when it falls due because again, to their minds, the council deals with these things.

When a fixed term contract comes to an end most council’s housing benefit teams stop payments until a new contract is issued. I get involved when the landlord complains of rent arrears and the tenant doesn’t even know that HB payments have stopped or why.

My great fear in this is that far from being empowered so many tenants will just accept less housing benefit as an occupational hazard and shrug it off thinking it is nothing to do with them.

Also, and in defence of many, looking for work is one thing, having jobs available to look for is another. The government is already talking about the amount of jobless and for many, depending on the area, working can be a difficult prospect.

Consequences

• If housing benefit doesn’t cover enough of the rent then this gives a landlord grounds to evict their tenant for rent arrears.
• If a tenant then becomes homeless as a result then they can approach the council’s homelessness unit who have a duty in many cases to investigate the claim.
• If they find that a person lost their home through rent arrears they can deem that the person is what is termed ‘Intentionally Homeless’ and refuse to re-house them.

Result?….

• More homelessness claims on already overstretched services having to find 25% cuts to fit the government’s budget.
• More loss of homes and with it weakened communities. How can you sustain a community when people keep moving?
• More families forced to make do, sharing with friends and family or living in overcrowded conditions.
• Damaged ability to rent other properties privately because of bad references.
• Less properties available for rent to benefit claimants.
• Loss of ability to borrow money because of damaged credit ratings.
• Smaller market for private landlords to invest in.
• Increased support costs for people who need social services involvement

And all this because of a populist idea of saving 10% on HB budgets. But how much will this cost a council overall? It costs tens of thousands of pounds to push a single family through the homelessness system, far more than would be saved by a 10% cut elsewhere. The difference is that cuts in HB would come out of the financial services budgets while increase in homelessness and support costs come out of housing department budgets, but all in all it is still the council’s pot.

A new government, new ideas but the same old lack of joined up thinking in favour of a crowd pleasing policy and demonization of people on benefits.

Ben Reeve-Lewis

About Ben Reeve-Lewis: Ben was the Tenancy Relations Officer for Lewisham Council for 11 years, prosecuting landlords for harassment and illegal eviction. Now he is a freelance housing law training consultant with a more balanced approach, delivering housing law courses for the Chartered Institute Of Housing, Shelter etc. His aim now is to help the housing world work as a interdependent system that benefits all

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Margaret Thatcher and the right to buy

Some of you may be able to remember when Margaret Thatcher’s government introduced the right to buy scheme back in the 1980s, a mandatory scheme forcing social landlords to sell properties to their tenants at a massive discount.

It turned the whole country into a nation of homeowners and in the process completely changed the demographic of the UK’s housing market. I can’t say for sure if the UK is the only country in Europe to be obsessed with home-ownership but if we aren’t way out front we have to be in the top flight.

I just got back from a short trip to stay with friends in Marbella and was shocked at the rent levels in Spain where renting is far more common than here. They were renting out a 3 bed house with shared swimming pool and tennis court, right down in the heart of the millionaire’s Costa Del Sol for 375 Euros a month.  That’s around £330. Why would you bother to buy?

Now the right to buy was a fantastic opportunity for thousands of families. I knew plenty of active socialists at the time who campaigned against it, sold papers and wore badges but still made sure they bought theirs so as not to be left out.

The problems for social housing started then because everyone who could afford it snapped up their properties and social housing stock numbers dwindled proportionally. Easy solution you quickly reply…..use the money the council’s made from selling to build more social housing. The problem is, the right to buy scheme came with a massive caveat, council’s weren’t allowed to use the money they made to build new properties.

Result….hardly any council housing left, but still a statutory duty on local councils to supply housing. For instance my local authority have 1,400 homes available and 17,000 people on the waiting list, – am still astonished at how durable the myth is that if you grow up in an area you will one day get a council house there.

So how do councils fulfill their housing duties now? That solution is easy. Council’s look to private landlords to provide accommodation that they can’t provide themselves. The market is huge and councils struggle to find enough properties. It isn’t that the properties aren’t out there. If you are a small landlord going it alone and not using an agent, you might find searching for tenants a permanent stress. The council has the tenants and needs the properties.

Homelessness duties

When a person approaches the homelessness unit they can go through 2 routes:-

• Assessments
• Prevention.

Homelessness assessments

I won’t bore you with the details (and believe me, they truly are boring) but the council has to apply 5 tests to any homeless applicant. If they pass all 5 tests then a statutory duty arises and the council has to find accommodation for them. This is why they need your properties because without them they cant fulfil their duties and will be breaking the law.

Prevention

The other route is where an applicant applies as homeless and the council can avoid the assessment route and prevent homelessness without having to go through the 5 tests and simply put a would be tenant and a landlord together, result? Homelessness prevented.

So again they need your properties.

Who takes on these properties?

Most councils have a person or a team usually called ‘Procurement’, their job is to find suitable properties to refer tenants to.

Every local authority will run slightly different schemes based on the needs of their area and the housing strategy of the council itself.

For many years now Private Sector Leasing Schemes (PSLs) have been quite popular in some areas. Commonly the council take you property off of your hands for a fixed period such as 3 or 5 years. They use it to house their tenants, paying slightly less than market rent levels. They take care of everything. If the tenant doesn’t pay the rent, you still get paid and the arrears are the council’s problem.

If the tenant ends up smashing the place to pieces the council repair it and it is not your concern. You get to sit on the property and let the equity accrue over time without the normal headaches of letting management.

Some councils will pay deposits and rent in advance for tenants they place with a landlord, some incentivise in different ways by offering bond schemes or housing benefit in advance.

Many councils have specific projects, such as finding accommodation for ex offenders or refugees. Some may be looking for landlords willing to take on tenants with learning difficulties or low level mental health issues and will often provide external support for what is termed ‘Tenancy Sustainment’.

Sedgemoor council in Somerset works with the local YMCA and trains young people who live in temporary accommodation to manage their finances and the art of being a decent responsible tenant. They get banded into bronze, silver and gold and when at gold level they introduce them to local landlords who have some assurance that letting to young people isn’t going to lead to disaster.

There are so many schemes out there and all you have to do to find out is ring your local housing department and ask to speak to anyone who takes on properties from private landlords. They will bite your hand off.

Speaking to procurement officers I know in London (yeah sorry to be so London-centric but it is where I live) they tell me that they tend to have more 3 and 4 bedroom properties than they need and are short of 1 and 2 bed.

Don’t expect every scheme to provide depth of support though. Many of them will simply act like a letting agent. put you together with a prospective tenant and leave you to get on with it. Unlike an agent however you wont have to pay any fees for it.

So if you have property to let, are tired of finding tenants yourself, don’t want to risk using what might turn out to be a dodgy agent or just have a well developed social conscience, then you could do worse than think of renting through the council.

Ben Reeve-Lewis

About Ben Reeve-Lewis: Ben was the Tenancy Relations Officer for Lewisham Council for 11 years, prosecuting landlords for harassment and illegal eviction. Now he is a freelance housing law training consultant with a more balanced approach, delivering housing law courses for the Chartered Institute Of Housing, Shelter etc. His aim now is to help the housing world work as a interdependent system that benefits all

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Homelessness and Allocations. 8th Edition

This may not be a book of much use to private landlords, although a glance between its covers would rapidly disabuse some of their conviction that ‘the Council’ will automatically help tenants that they evict. But for housing lawyers, advisors and indeed some local authority homeless unit officers, the LAG Homelessness book has long been the bible. Even now that there is strong competition in the form of Jan Luba QC and Liz Davies’ ‘Housing Allocations and Homelessness’, a new edition of ‘Homelessness and Allocations’ is a significant publication.

Andrew Arden QC has been joined by a new team of co-authors, Emily Orme and Toby Vanhagan, and they have collectively taken the opportunity to rework the structure of the book as well as add and revise material. This works well. Homeless and allocation law has changed significantly over recent years and there is always a fresh wave of case law, an old structure will end up creaking under the weight of additions and not suited for new issues.

The 8th edition has fused the discussion of public law into the homeless and allocation sections, so that it is no longer a discrete chapter. Public law remedies have a significant track record in this area now, so there is no need for an independent section on the operation of public law. There is a completely revised chapter on immigration and homelessness and on immigration and allocation. The chapter on allocations now also considers allocation by other providers of social housing.

Case law has been updated throughout, including a last minute note on Tomlinson v Birmingham City Council [2010] UKSC 8, a Supreme Court decision on whether the housing duty under the Housing Act 1996 was a civil right for the purposes of the Human Rights Act 1998, which was only handed down in February 2010. In fact there are more than 80 new decisions of significance added to this edition, affecting both homelessness and allocation law. The supplementary and new statutory guidance on homelessness and allocations respectively has also been addressed and also included in the appendices.

The basic structure remains unchanged however, and rightly so. The chapters on homelessness provide a logical breakdown of the qualification criteria for a full housing duty to be owed by a local authority and do so in a manner that effectively sets out a checklist for anyone dealing with a homelessness application. A chapter on the decision making process and the review process follows, then a chapter on the discharge of duty by the local authority. There is a section on appeals of the review decision to the County Court, contained in a chapter on ‘Enforcement’ generally. This could perhaps have been better signposted as the next step after a review in the chapter on decision making.

The chapter on allocations is relatively brief and has, if anything become even briefer as a result of case law since 2006. But it has been significantly updated and reworked and is as clear a guide to the duties of a housing authority on allocation as could be hoped for.

There have been some very important changes since the 7th edition was published in 2006, in particular in regards to allocations, with the growth of choice based letting schemes and the impact of R (Ahmad) v Newham LBC [2009] UKHL 7. These, together with the opening up of public law challenges to what are now private registered providers of social housing, following R (Weaver) v London & Quadrant, are all addressed in the revised edition and this is done with the clarity and concern over the practical effect of the law that characterises the whole book.

The following chapter on enforcement contains practical and detailed advice on the procedures for challenging decisions, or a failure to make decisions, in homeless and allocation processes. It covers Judicial Review, appeals to the County Court and mentions the alternative of a maladministration claim to the Local Government Ombudsman.

The remaining chapters concern other statutory provisions that may be of use if a homelessness application fails and discuss requirements on the local authority to have a strategy and to provide advice. The appendices include relevant statute and guidance as at January 2010, very helpfully gathered together.

Although perhaps no longer the only bible on this subject, ‘Homelessness and Allocations’ has long been one of the vital books for any housing solicitor or advisor. The updates to the 8th edition ensure that it remains so.

******

Giles Peaker, our reviewer, is an assistant solicitor in the Housing and Public Law team at solicitors Anthony Gold. Homelessness and Allocations can be purchased online from Amazon (affiliate link).

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In fact the introduction gives us a useful short history of the period from 1999 to date, touching briefly on the Law Commissions and subsequent reports (which have resulted in a resounding lack of action by the government, presumably because the answers provided in the reports are not those they want to hear), the 2004 Housing Act, the Decent Homes program, the tolerated trespassers problems, claims farmers, and the problems of obtaining professional legal help under legal aid.

The book covers very much the ground you would expect.

• Chapter 1 looks at contractual rights and the provisions of the Landlord and Tenant Act 1985.
• Chapter 2 looks at common law rights  (ie negligence and nuisance) and statutory rights  (Occupiers Liability Act 1957, Defective Premises Act 1972 and the Human Rights Act 1988)
• Chapter 3 looks at civil remedies, covering direct action and court action
• Chapter 4 looks at the vexed question of funding, covering legal aid, insurance, and conditonal fee agreements
• Chapter 5 covers proceedings under the Environmental Protection Act 1990
• Chapter 6 covers the various provisions of the Housing Act 2004
• Chapter 7 is a useful chapter covering various miscellaneous matters such as asbestos, condensation and dampness, gas safety,, HMOs and overcrowding, and
• Chapter 8 looks at damages
• There then follows some useful appendices including extracts from the legislation, some guidance on understanding experts reports, and some precedent documents

The book is clear and authoritative, and everyone working in the field of housing law should have it on their desk.

Published by LAG, the book authors are Jan Luba QC and Beatrice Prevatt, both barristers at Garden Court Chambers in Lincolns Inn Fields, and Deidre Forster of Powell Forster Solicitors. You can buy Repairs: Tenants’ Rights online from Amazon (affiliate link).

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