In our shiny bright new year, DCLG is consulting on a new version of the Allocations Code of Guidance following the enactment of the Localism Act 2011, which has made several seemingly minor substantive alterations to Part 6, Housing Act 1996 (although those alterations are hugely significant practically).  The closing date for the consultation is 30.03.2012, and responses can be sent by email to housingreform@communities.gsi.gov.uk or by post to the lovely Frances Walker at DCLG, Zone 1/J9, Eland House Bressenden Place London SW1E 5DU.  That’s the formal stuff, now the content, followed by some comments.

It needs to be remembered that the backdrop to the Consultation is the redraft to Part 6 which takes applicants for a transfer,  except where they have a reasonable preference, out of the scope of an “allocation”, enables local authorities to create categories of qualifying/non-qualifying households (in addition to the eligibility threshold), and revives the (forgotten) right to review (a little).  It should be noted that these proposals do not affect Wales, which has its own housing powers.  Further, proposals in the Welfare Reform Bill penalise under-occupiers by removing a certain proportion of their rent-related benefit.  Finally, there is the importance given to prioritising members and former members of the armed forces, which is reflected in two draft SIs – any residency requirement cannot apply to them, and they are to be given additional preference where they have urgent housing needs.  I have previously expressed unease about these proposals and don’t repeat that here.

The task for the drafter of the code is to make sense of all of this, taking account of the law as it had developed in and after the House of Lords decision in Ahmad v Newham LBC (links to our note), as well as the policy desire since the days of Caroline Flint as housing minister to “reward” those in or seeking employment through allocations priorities.  The search is on for a balance between, on the one hand, according reasonable preference to those households entitled to it, and, on the other hand, giving effect to the policy but not so that policy dominates an allocation scheme.  The drafter has been a little coy about this balance, preferring to repeat the balance and observe: “The Secretary of State would encourage authorities to consider the scope to take advantage of this flexibility to meet local needs and local priorities” (para 4.26).  As regards households in work or seeking work, the Code “urges” local authorities to consider how they can use their schemes “to support those households who want to work as well as those who – while unable to engage in paid employment – are contributing to their communities in other ways, for example, through voluntary work” (para 4.36).  In this light, I would have said that local authorities might need rather more guidance on the equality duties in the Equality Act 2010 than the single paragraph (para 4.33) that is provided in this chapter on framing an allocation scheme.  The flexible tenancy regime is singled out as a way to support households in low paid work and incentivise others to take up employment opportunities (para 4.37) – it might be noted that some commentators have suggested that the affordable tenancy regime, if used, might create an incentive not to enter into low paid work or take up employment opportunities (para 6.5 says that the expectation is that these properties will be allocated in the same way as “social rent” properties – an interesting discursive dyad, if you’ll forgive me).

On the qualifying persons, I guess it might be said that the one good thing about this document is that at least it seeks to bring the allocations code up-to-date on eligibility.  What is perhaps notable, however, is the lack of direction on other types of households which the local authority might deem generally to be non-qualifying (paras 3.20-3.22).  It assumes that some will have residency requirements, and there is the suggestion that these should not restrict transfer applicants where the transfer is to take up work or to downsize (para 3.22).

Under-occupiers are accorded more discussion than in previous codes because of the potential impacts of the April 2013 change in allowable benefit.  The draft code says that authorities may want to consider giving them “appropriate priority” for a transfer and remove prohibitions on transfers which might make them more difficult (eg minor rent arrears) (para 1.10); and in thinking about the size of property to be offered to a household (para 4.32).

On the right to review, this is likely to form a substantial new administrative part of the allocations scheme.  I am on record (on this blog and elsewhere) as describing the Part 6 right of review as the forgotten sibling of the Part 7 right.  That is, in part, because the current review regulations don’t apply to Part 6.  The code seems to signal that there will not be any new regulations governing the right of review under Part 6, but in what I regard as an astonishing paragraph (para 5.21) it sets out what it regards as “general principles of good administrative practice which should be incorporated in a review process” (and note these do not include the equivalent of Reg 8(2) for a minded to notice where there has been a deficiency or irregularity in the original decision).  There seem to me to be no justifications for general principles of administrative justice not to be required by regulation, nor for them to be different from Part 7; and every reason why those principles should not be subject to local priorities.  Administrative justice is not the bargain basement of the justice system but, for many, the only potential source of redress.

Comment

My mate @ShodanAlex summarised the draft Code in a tweet by saying that allocations has returned to what it was in the inter-war period, homes fit for heroes and the aristocracy of the working class (harsh words from a LibDem).  It is difficult to disagree with that analysis – and his paper in Legal Studies on the history of social housing allocations can now be read with enhanced interest (despite the apparent downgrading of, or loss of interest in, choice-based lettings exemplified by its irrelevance to and in the draft Code).  The publication of the draft code was accompanied by a press release which praised Westminster, Southend, Manchester and Wandsworth for ensuring social housing is used to reward people who are working or actively seeking work.  As prefaced above, New Labour can hardly take a principled stand against this, as it had been their policy as recently as 2008 (as NL’s post shows) and, arguably, the draft code is less extreme.

But, in our post-Equality Act world, it would be interesting to see the equalities assessments, if any, of those highlighted local authorities – NL has suggested that an FoI request should be made, which is going to be next week’s work (or, if you’ve got a copy, please email it to us and save me the work).  SJM also mailed to say that Westminster are already issuing letters implementing their new scheme – apparently 10 years residence in Westminster or continuous paid employment of a minimum of 16 hrs pw for two years will net you up to  50 points.

It should also be said that there is some positive material in the draft Code, about (for example) carers and those seeking to foster children.  Also, there’s none of that nonsense that was in the original 1996 code about giving preference to married couples – I mention that because the Localism Act reforms return us to pretty much of the original 1996 Act.

The draft Code is noticeably short on detail and, well, just plain short.  That makes sense in the current climate of localism, but one might also feel that it sells local authorities rather short.  It isn’t really guidance, just a code.  But that’s not really the point of the code.  My sense is that the primary intended audience is local authorities – of course – but equally it is also the courts.  There are lots of references to what the courts will and won’t do (and it will be remembered in Ahmad that the HL used much of this policy material to justify their position), and this document is as much for them as for local authorities.

One final substantive point and I think that it is a significant one – perhaps an unintended effect of the Localism Act and the new non-qualifying persons categories.  A sensible local authority will do what the draft code suggests and consult with its local PRP providers about their non-qualifying household categories (aka exclusions).  Allocation schemes could, then, reproduce these, subject to the right to request a review and their Wednesbury reasonableness, so as to avoid those local disputes where a PRP refuses a nomination.  That seems a way of making this area more transparent and open, and gaining something positive out of a pretty awful allocations/tenure settlement.

I couldn’t leave this, however, without a rant about Shapps; or, rather, without the criticism of Shapps’ rant about the “For years the system for social housing has been associated with injustice – where rewards are reaped for those who know how to play the system best. Despite this terrible image a lazy consensus in social housing has ensured that, for an entire generation, no-one has bothered to do anything about it”.  Quite apart from playing fast and loose with recent history (what about CBL, Shapps? and aren’t you adding to that consensus by not getting rid of reasonable preference?), it has angered most of the people who are most affected by the draft Code – see this report in Inside Housing.  I love Keith Exford’s comment: “To make sweeping generalizations about four million people is pretty uncalled for”.  Is this why Shapps has been noticably absent from his tweeting recently?