The new allocation code of guidance was published by DCLG today – it had been trailed a little and the smiling face of Grant Shapps appears in a Murdoch rag today (he tweeted the story this morning).  There are some interesting snippets in it but, in truth, without detailed micro-examination in a specific case/local authority, there is little to go on here – after all, that’s localism for you.  One of my favourite bits is the ministerial foreword which explains what Shapps has done for social housing as opposed to those nasty New Labour types (without mention of the potential effect of welfare reform, RTB, etc). There is a sense in which the guidance is really just moving the deckchairs around the Titanic, placing them in a slightly different order with one or two a little higgledy-piggledy.

Here are the bits in the actual guidance that have most interested me:

(a) Armed services: I have previously admitted to a sense of unease as to the increasing priority which housing policy is giving to members and former members of the armed services.  I should stress that this unease is not about such persons’ value or their contribution, but it is because it is difficult to tie this policy preference in with illnesses/disabilities suffered by others, and general equalities obligations.  There is already the local connection provision, which seems sensible to me, and I have no qualms about it.  But, and this is what Shapps publicised today, it signals (at 4.14) that an SI will shortly be laid before Parliament to give additional preference to current members of the armed forces; former members who need to move because of a serious injury, medical condition or disability sustained as a result of their service; bereaved spouses/civil partners leaving services family accommodation; serving/former members of the reserve forces who need to move because of a serious injury, medical condition or disability sustained as a result of their service.  There will be regulations requiring that many of such persons must be regarded as qualifying persons.  And that’s not all, at paras 4.24-6, a range of suggestions are made as to how service personnel might be given advantages including disregarding a lump sum payment for injury/disability sustained on active service if they are taking into account an applicant’s financial resources.

(b) Impact of bedroom rate: Anybody interested in the effect of universal credit/bedroom rate generally should check out Joe Halewood’s excellent posts on his blog (see, for example this corruscating attack).  It is clear that it will have a massive impact on households in the social rented sector.  And the Guidance is not oblivious to this – it recommends that authorities consider the importance of giving social tenants who under-occupy “appropriate priority” for a transfer – para 1.7 – and being more flexible about exclusions (eg for small rent arrears).  If they “choose” to move to the PRS, they might be encouraged to do so by being given “some degree of preference … at a later date”.   But, then there are counter-propositions: where a person needs a carer who may need to stay overnight, housing authorities could “wherever possible” take that into account in the applicant’s need for a spare bedroom (para 4.29); foster children are not taken into account in determining the household size for the bedroom rate but they may be eligible to apply for a discretionary housing payment (para 4.32; dontcha just hate this constant refrain to the already overstretched DHP).  DWP bods might want to check out our note on Burnip [2012] EWCA Civ 629.

(c) Qualifying persons: Local authorities can now set their own criteria for qualifying persons and it will be interesting to see what they come up with.  The guidance is quite general (paras 3.18 et seq) except regarding those who already own their own homes – DCLG doesn’t think they should be qualifying other than in exceptional circumstances.  And it is to be noted that these criteria apply to an allocation, so that eligibility should be checked at the time of application and when considering making an allocation.  Now, this all makes the application process itself much more significant – there will be scope for fresh applications when circumstances have changed, as under Part 7, and it will be interesting to see when the first challenge happens on that and its outcome.

(d) Reviews and appeals: This is a major bugbear of mine and has been for years.  The review process under Part 6 is a poor relation of that under Part 7 in terms of its specification.  The review regs don’t apply and we are left with general principles of fair administration governing the process – these are detailed in para 5.19 and should be scrutinised by both local authorities and applicant advocates.  My previous predictions of an increase in Part 6 reviews after CBL didn’t happen; but I predict that there are bound to be greater numbers of Part 6 reviews, particularly in those authorities which set tight qualifying criteria, and consequently greater numbers of JRs (there being no county court appeal).  Take one example – the significance given over to the oral review under Reg 8(2) for Part 7 applicants.  There have been loads of decisions on the threshold criteria and the significance of the rights.  Should that procedure operate under Part 6 – we have the comment “Authorities should consider whether to advise that provision should be made for verbal representations, as well as written submissions, to be made” (para 5.19 iii – there are two sub-para iiis, it’s the first one).  Should an equivalent Reg 8(2) be imported?  Good luck with that one.  I could go on, but the Guidance seems to have in mind a not dissimilar process to that under Part 7, so that is one indicator.  I predict much greater judicialisation of the review process.

(e) Eligibility: The Code updates the various bits and bobs here and gives the correct e-mail address for correspondence with the UKBA.  But, practitioners should also be aware that there is a lot going on around this stuff – for example, a new SI has been laid before Parliament to update the 2006 Regs.  So, this is a moveable target on which guidance should not necessarily be relied.

(f) Work: Households in work or seeking to work are also given special mention in the guidance.  This is a difficult pre-occupation of successive governments because of equality considerations and local authorities would do well (in my view) to tread carefully here.  The guidance “urges” local authorities to consider how they can use their allocation policies to support those households (and laudably, perhaps, includes in this category “those who – while unable to engage in paid employment – are contributing to their community in other ways, for example, through voluntary work”: para 4.27).  they might, for example, be given “some preference” or, if they are entitled to reasonable preference, “greater priority”, or the use of local lettings schemes.  But, there is to be no statutory priority/additional preference for workers etc.

(g) Carers: To an extent, carers (including foster carers/prospective adopters, see above) come out of the guidance rather well (paras 4.29-32), but this is all subject to the abhorrent impact of the bedroom rate in social housing.

So, what we have here is local priority setting with an arm twist from government.  It will be interesting to see how it pans out.