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.
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).
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).
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).
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.
The consultation closes on 17.01.2011 – responses to the lovely Frances Walker at CLG or by email to firstname.lastname@example.org