Social housing reform “consultation”

The heavily trailed (eg here and here), “cataclysmic” consultation paper on social housing reforms has been published by CLG today.  There is much to digest and much will be left to individual PRPs and local authorities to work out.  The “consultation” is limited either to specific groups or to more specific issues without challenging the underlying rationales.  The Localism Bill, shortly to be introduced will carry the main proposed changes.   It also seems like there will be considerable residuary powers retained centrally and locally.  The executive summary of the paper (at pp 9-11) pretty much does the job if that’s all you read, but there are subtler effects and difficulties which one might anticipate on a first reading of the paper.  If you are looking for keywords, they seem to be flexibility (tenure and rents), choice, change, deregulation, re-regulation.  There are some good bits (assisting the resettlement of ex-offenders/the deinstitutionalised) and some frankly barking bits (most of the rest of it).  Anyway, here’s my summary:

Tenancy Reform: The “social offer”

The search is for flexible local solutions to individual housing needs (and non-needs, of which see below) and reforms to the current “social offer” (an ugly label used throughout the CP, but, I suppose, is discursively intended to offer as a comparator to the private rented sector -“PRS” – offer).  The current secure tenancy framework is regarded throughout as “inflexible” and a tenancy “for life”.  The way of resolving that is to leave the current security of tenure system in place, and (importantly) protecting the current tenants from the new regime, but introduce a “flexible tenancy” for a proposed minimum of two years which can be granted to new occupiers.  The two year period is up for consultation, but note the point at para 2.49 that “We would for example expect social landlords to provide longer tenancies to families with children as a safeguard against disruptive changes”.

Six months before the end of the fixed term, the landlord is to issue a “minded to” notice if it has decided not to extend the term and offer “advice and assistance” (hopefully more than chucking a list of relevant websites/available accommodation at the recipient).  This may be a positive aspect of the proposal, but raises concerns about how that letter might be framed and how lawyers are to interpret its framing (presumably like a homelessness decision?).  The principle here seems to be similar to the method of determination of introductory/demoted tenancies, with a right to review, but with the added protection of an appeal to the County Court “on the limited grounds that the landlord has made an error of law or a material error of fact” (para 2.32).  I wonder whether that will pass an Article 8 assessment.

Social landlords will have the option of the type of tenancy to grant (secure/assured or flexible) but will have to publish their strategic policy, which appears to require only that they “set out the broad objectives to be taken into consideration by individual social landlords in the area regarding their own policies on the grant and reissue of tenancies” (para 2.19).  Such strategies will be drawn up by local authorities (even non-stakeholding ones) in collaboration with other housing providers and interest groups (eg tenants).  Publication of such policies will apparently provide the requisite transparency.  Some parameters will be set centrally in legislation  and there will be a direction to the relevant regulator of a “Tenancy Standard”.  The terms of that standard will undoubtedly be significant but, at the moment, it is framed essentially as fairly minimalist principles-based regulation which will be “brief and focus on principles, and should avoid detailed prescription” (para 2.43).

Snuck away at paras 2.35-2.37 is an important qualification to all (flexible and otherwise) future social tenancies regarding succession: there will be a minimum right of succession only once and only to the spouse or partner of the deceased tenant.  Social landlords will be able to grant more than that, though.

The right to buy/right to acquire will be retained for all these new tenancies.

The affordable rent regime, under which PRPs are able to grant tenancies at 80% of market rent from April 2011, and will be phased in, but the changes detailed above will also apply to these parts of the social offer (para 2.8).

If I was cynical – and regulars will know that I am – I would suggest that these reforms have been intended to offer a more level competitive set of arrangements between the “social offer” and the PRS, but more of that below.

Initial conclusion: so-called flexibility will result in more complexity and confusion in the short to medium term, with a prediction of legal challenges to possessions and the re-drawing of the intensity of the proportionality defence.

Empty Homes

There are a number of paragraphs in a short section on empty homes, which make much the same set of empty observations as past CPs of the last thirty or so years.  Frankly, rich people with empty homes are not going to be a target of this government.

Allocating social housing

The headline here is that at least some of the 2002 Homelessness Act changes will be unwritten.  Transfer households are to come off the housing register, so that they can more effectively compete for an allocation and use the new national home swap scheme and facilitate chain swaps (paras 4.18-22, and section 5, esp para 5.4 about data pooling and 5.5 about the whizzy new www system).  In other words, because such households may be less needy, they are rarely going to get an allocation/letting under the current scheme.  There will be no requirement for open lettings (unless this is what the local community wants).  There is an odd para (4.7) in which CLG appears to be applauding local authorities gatekeeping practices in respect of households with no chance of an allocation.  But the key para here is 4.9, which delimits the kinds of additional local exclusions which authorities might consider: only those in housing need; residency criteria; past tenancy record; those with sufficient resources toa ccess the private sector.  It doesn’t need a crystal ball to foresee how that might operate (or to predict DDA/Equalities Act challenges).

There is an open question on the reasonable preference categories but CLG’s present position is that they are currently appropriate – or they are leaving the door open to just getting rid of it altogether (but there’s little point after Ahmad anyway).

Homelessness

There are the good bits (ex-offenders and deinstitutionalised patients, although this is for a PRS support scheme: para 6.4) and a decision not to change the priority need categories, and the bad bits (for those with a long memory, remember the DoE’s 1994 CP on homelessness [albeit slightly nicer put here]?).  Basically, a “priority need for housing”, in CLG’s view, should not equate to a need for social housing (para 6.9).  Therefore, they propose to amend s 193 so that an offer in the PRS will count as an offer irrespective of whether the household agrees or not: “This will depend largely on the circumstances of the particular applicant (and his or her household), but also the availability of suitable accommodation in the private rented sector, and the pressure on social housing in the district” (para 6.12).  Anybody following Dave Hill’s oversight of the Westminster CC and Schapps/Freud correspondence will find para 6.13 of interest regarding out-of-area offers.

The offer will be of a PRS AST of a minimum of 12 months and the SoS will take regulatory powers to vary the minimum fixed term length “in the light of experience and market conditions (but this could not be for less than 12 months)” (para 6.16).

Overcrowding

Section 7 is the oddest section of all.  It describes the problems of overcrowding and the complex, obsolete legislation around it, and recognises some good practice, but then “we welcome views on the reform of the legal and regulatory framework concerning overcrowding” (para 7.9).  CLG apparently has no ideas itself, although there is a steer in consultation question concerning the HHSRS (on which see the interesting case of Hashi v Birmingham CC reported in this month’s Legal Action – our note to follow hopefully but we need the transcript, hint, hint).

Regulation

This simply confirms what we already know about the (barking) demise of the TSA and the (equally barking) decentred approach to regulation.

Boris takes over

One last thing snuck away at para 1.25: Boris is to get all decisions over housing investment in London.  Nothing on whether he gets regulatory oversight as well but I guess that follows.

Consultation Period

The consultation closes on 17.01.2011 – responses to the lovely Frances Walker at CLG or by email to housingreform@communities.gsi.gov.uk

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Posted in Allocation, Assured Shorthold tenancy, assured-tenancy, FLW article, Homeless, Introductory and Demoted tenancies, Possession, Succession.

23 Comments

  1. The bits I still don’t get are the following: 1) how does forcing people to move provide an incentive to work, 2) do they really think – on the basis of no evidence whatseover – that light touch regulation is what the social housing sector needs?

    The allocations bit is just a way of massaging the figures is it not? Lets get rid of all the no-hopers so that in a few years time we can say that we’ve reduced waiting lists by however many x million without the inconvenience of spending lots of mone on new houses . All they propose is what Ahmed says they can do anyway is it not?

    As for the Pt. VII bit, local authorities can already discharge a duty under s.193(2) by offering accommodation in the private sector (Griffiths v St Helens). Yes the duty doesn’t currently cease if they do that, but under these proposals it won’t really either, because if they becomme homeless again within two years the duty recurs without a new application.

  2. Oh and the idea that all those who under occupy will now all swap their homes with families living in overcrowded properties because of a website has clearly not been based on any evidence either. If that was the case no one would ever defend a ground 16 case and we know they do because they don’t want to move from where they have lived there whole life.

  3. is it just me, or is this system of a review every 2 years going to be either

    a) just lip service or
    b) phenomenally complex and expensive for local authorities, who will of course have 20% fewer staff
    ?

  4. @S: the empirical base for these reforms is, as you say, at best unclear. The impact statements will make for an interesting read.
    @Simply Wondered: I agree with your point (b) and it was something I was thinking about. The minded to letter will become the subject of considerable contestation.

    Also, see http://www.insidehousing.co.uk/ihstory.aspx?storycode=6512616
    For more Philippa Roe-isms and the critique of others.

  5. Is anyone else starting to getting really hacked off with the ConDems? Grant Shapps seems to have a new wheeze every day. And little evidence supporting that said wheezes are addressing a problem.

  6. Still trying to understand this. Looks like to me that LAS in high housing demand areas will offer shorter tenancies than in low demand areas. In high demand areas you will get a lot of pressure on tenannts via regular reviews to find work, own etc.

    The net effect will be to “encourage” applicants to go to low demand areas, where they will issue longer tenancies and be more tolerant to applicants not finding work.

    Sort of goes hand and glove with HB changes….

  7. Is the real reasoning behind the reforms not to gradually whittle away the difference between social housing and the PRS, until we reach the point where social housing isn’t missed too much when it is abolished?

  8. Alex – you are right. The one good thing about social housing was the leeway to negotiate when arrears accrue. That is going to vanish. And Simply Wondered – my sarcasm didn’t translate onto the page.

  9. 6.11 “…bringing the homelessness duty to an end with offers of accommodation in the private rented sector, without requiring the applicant’s agreement.”

    In the case of Housing Options v Homelessness Legislation I think we can declare Housing Options the winner… although there may be some teething problems with the new arrangement-

    Housing options: Come to us, we can get you into private rented accomm(and prevent a homelessness application).

    Homelessness section: But we need all the private tenancies out there for discharge of our existing full duty cases.

  10. @ Alex: I think that this is one of the bottom lines of the proposals. It responds to private landlord concerns, particularly in low demand areas, that the playing field between private and social sector is weighted in favour of the latter. This is also what explains the recent intervention by the RLA (Residential Landlords Association), reported in Inside Housing today, expressing concerns about the workability of the proposals in light of Pinnock (a view which was expressed above, although we will have to wait and see what the SC makes of all this in the Salford et al cases).
    @ MarkRay: you’re spot-on about that tension between housing options and homelessness – cue more gatekeeping.

  11. Let try to make some sense to all this.
    The idea behind the proposals is to create a new freer market in housing.

    Social landlords will lose subsidy to build.
    Social landlords will be allowed to charge more like market rents to build.
    Rents between private and social landlords are being slowly equalised.
    Tenures between private and social landlords are being slowly equalised.
    LHAs are given powers to exclude applicants that should be rightfully entering the housing market rather than queuing for social accommodation.
    Subsidies (HB) to private individuals to find accommodation are reduced.
    Strategic Inspections are to be reduced as the market will dictate.
    There is an emphasis on mobility tranfers to find work.
    THe housing options are a retraining of the applicant to renter the market.

    It sort of makes sense, if you were Sir Keith Joseph.

  12. Martin – lha can already effectively exclude people for the reason you give. They have been able to frame their allocation scheme in such a way since ahmed.

    The real question will be what individual authorities choose to do. It is not necessarily in a lha’s interests to create ghettos of social housing where no one works.

  13. Ok but many LAs (outside London)hold open lists and dont gatekeep, in fact they always advise every applicant to put their name on the Housing List….consistent with 2002. They have their own reasons for doing this and indeed the application does act as an insurance policy.

    If you live outside the great metropolis areas you soon discover that LAS do not conform to the London model, or get obsessed with recent caselaw. They tend to be really risk adverse.

    In part this is the govt preparing for April 2011, they are signalling to every LA that you can exclude new applicants by local connection criteria and you will not face challenge.

    Of course if you dont exclude then the local LA will now be held responsible for not prioritising the local community sufficiently, when it had the means to do this.

    Ok a rather cynical view.

  14. Just noticed this on Westminster council pages What the Housing Benefit changes mean for me.
    http://www.westminster.gov.uk/services/housing/housingoptions/hphoptions/housing-benefit-changes-april-2011/

    Love the following “If you cannot make up the shortfall in your rent and are evicted for rent arrears, there is a very good chance that you might be considered intentionally homeless. You should do everything you can to avoid this happening.”

    It sort of fetters their discretion 5 monthes before the
    changes have even been implemented. It would be tragic if a solicitor noticed this. Lets hope they dont.

  15. But surely the judgment in Hanton-Rhoulia was a splendid judgment? What really did the applicant lose by accepting a perfectly adequate AST. OK, if the Council had made a favourable decision accepting the full housing duty they might have offered her the exact same place by way of a qualifying offer (which she might have declined). And, of course, they might have offered her the AST without bothering to dress it up as a qualifying offer in which case the duty would have ended if she’d refused it (see Griffiths v St Helens MBC [2006] EWCA Civ 160)

    Conversely the council might have taken the house under a short lease from the owner and offered it to Mrs H-R. Granted that if this last option were to have been pursued would have been theoretically better off in that if the s193 duty was met (but not discharged?) she might have continued to bid for council stock via their CBL scheme, but any sensibly drafted allocations policy could properly deprioritise those who were adequately housed in PSL stock.

    Frankly, I’m rather surprised that the LSC funded Mrs Hanton-Rhoulia’s two-barrister trip to the Court of Appeal given that she was no longer homeless and she accepted that the accommodation was suitable. [I am assuming that she was publicly funded but I’m perfectly happy to be corrected if anyone knows anything to the contrary). Did she even bother accompanying her lawyers up to the Court of Appeal, I wonder. Her lawyers were always going to be the principle beneficiaries of the little adventure.

    I don’t see anything wrong with sorting an applicant out with a private sector AST before a decision is made on his homelessness application. In a hypothetical case it might be necessary to interview a host who might be difficult to get hold of so as to clear up a question of intentional homelessness – and then there might be the ‘minded to’ letter with the applicant being given the chance to comment upon what the host might have said, etc. All this stuff takes time. If there’s the opportunity to short-circuit matters by introducing the applicant to a private landlord who is willing to have that person as a tenant why not take it.

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