Both Claimants were accepted as homeless several years ago and were waiting in temporary accommodation for an offer of permanent accommodation. Both Claimants were successful “auto-bidders” for properties under the scheme and although they expressed dissatisfaction with the offered properties, only Ms Rouse Tout a Tout took up the new tenancy while Ms Heff remained in her temporary let.

The common ground of challenge was that the local authority had departed unlawfully from paras 3.13 and 3.16 and 4.50-4.56 of the Part VI Code of Guidance. These provisions discourage local authorities from imposing sanctions on applicants who have bid for properties that are unsuitable for them. They also recommend appropriate limits on the periods during which those in temporary accommodation should have the ability to bid.

The Court rejected the argument that to discharge a duty following a final offer ought to be treated as a sanction: paras 3.13 and 3.16 were not intended to apply to those in temporary accommodation and paras 4.50 et seq were the operative paragraphs. In response to the argument that the time period of 2 months for active bids was unrealistically short and that there was no proper way to monitor an applicant’s failure to bid, the Court observed in this case that about 30 properties were available for letting in this period, which could not be described as an inadequate choice. Secondly, the applicants had the benefit of a home visit, which was intended to explain the bidding process and how they could overcome any difficulties with it. The Court held that there was compliance with the Code but even if there had not been, the Court remarked that a departure from the Code might still not be irrational given that local authorities were required only to have due regard to it.

The Court nevertheless expressed sympathy for Ms Heff’s situation as there was a further property available at the same time as her auto-bid that she was prepared to accept.  When the auto-bid for property B went through, the offer of property A was withdrawn, to Ms Heff’s disappointment. The Court rejected the claim that she had a legitimate expectation of property A or that the offer of property B was unfair or ultra vires. It pointed out that the offer of property A by London and Quadrant was expressed to be conditional on Haringey giving the “all-clear”. This never happened and the offer of property B was made instead.

Both applications were dismissed but the judge did encourage the local authority to consider giving Ms Heff the second chance of a successful bid, given her unusual circumstances.

Comment: I am interested to hear that Haringey go to the trouble of carrying out a home visit and of sending out a DVD instruction manual as I do not know of many authorities who go this far with their Part VI applicants. Where direct offers are concerned, the most a lot of applicants can expect is a letter saying “here is a property we believe would be suitable for your needs.” Whether this is to be treated as having due regard to para 4.56 of the Code is an open question.

I note that no reference is made in the judgement to the suitability of the accommodation and it would also be useful to know whether any review/appeal in these cases is ongoing.

The Applicant was a WWII veteran who registered in 2004 for social housing with the local housing executive. By 2007 he was still on the waiting list for an apartment and he began court proceedings, alleging that the Council had breached Art 46 of the Ukrainian Housing Code by failing to provide him with housing.

Art 46 is a curious amalgam of what we would understand to be homelessness and allocations law: it states that WWII veterans/WWII disabled persons (whoever they might be) shall receive housing prior to all other persons eligible for priority housing. The Council argued that Mr B was not entitled to an apartment yet because he was no 71 in the queue and he could not expect an out-of-turn allocation.

Mr B was unsuccessful in the domestic courts and so he petitioned the ECHR, contending that his Art 1 rights had been violated and that his case was analogous to that of an welfare benefit applicant, whose right to a benefit could amount to an Art 1 right. The Chamber gave a succinct and unanimous judgement: the difference between Mr B’s case and the benefits cases was that Mr B could not show a proprietary interest in the property he expected to acquire. Although state law gave Mr B the right to privatise his home in the future, after he acquired it, there was no evidence before the Court to show how Mr B could achieve this aim.

Art 1 did not give the Applicant the right to acquire property and the case was accordingly declared inadmissible.

In June 2011, there were only 27 residential caravan pitches within Hackney and only 456 residential sites in London as a whole [not included in the Lawtel note, but reported in The Guardian last summer]. While it is not clear from the Lawtel note, I do not think I would be wrong in presuming that demand for the pitches far outnumbered their supply and there was plainly a lengthy waiting list.

To get onto the waiting list Hackney’s policy required applicants to demonstrate, through the provision of documentary evidence, that they lived in Hackney or had a connection to the area. Applicants were also required to re-register every year, which included supplying documentary evidence of their address. A failure to re-register resulted in applicants being removed from the waiting list.

The claimant traveller sought judicial review of the policy and contended that it was irrational because the requirement to have a local connection to Hackney and re-register annually was unduly burdensome for travellers.

The Administrative Court dismissed the claim for judicial review. There was nothing irrational in either requirement. An authority was entitled to ration a scarce resource by limiting it to people who had a connection to Hackney and it was necessary for applicants to re-register annually so that Hackney could be satisfied that such people still had a local connection to Hackney. In cases involving a scarce resource it was inevitable that there would be competing interests and a policy would always have its advantages and disadvantages.

Comment

The fact that there are insufficient sites for travellers is well documented. As is the continual failure of central or local government to do anything about it. Against that backdrop, I don’t think anyone can argue against local authorities  operating allocation policies to ensure that those sites that do become available are allocated to travellers transparently. However, I would also have thought that it is equally important for such policies to be framed so as not to disadvantage the very people the scheme is designed to help.

Therefore I am not very surprised that this policy was attacked as being irrational. It is clearly arguable that it cannot be rational for a policy to require travellers to reside permanently in Hackney until they are allocated a pitch. This would appear wholly at odds with living a nomadic way of life. Rather than promoting the cultural lifestyle of travellers this policy appears to curtail it.

However, one must not forget the current plight of many travellers; the lack of sites means that the majority of travellers are no longer able to live a nomadic lifestyle and many are forced to either live permanently on sites or, in the worst case scenario, live in houses. Against that background, I do not think that it is unreasonable for authorities to prioritise pitches for those people who are living in their area and who want to live in a caravan but are unable to do so. Their children are likely to be attending schools in the area and it does not seem perverse that those people should be given priority above those who are not.

Clearly the answer is for more sites, but until then I do not think that an authority can really be criticised for accommodating those travellers who live in their area, especially if they are being forced to live in houses rather than caravans.

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?

Anyway, the important thing about Sullivan LJ’s short judgment is that he makes a point about the “common sense” required of the judge in dealing with a challenge to an allocation scheme.  The point is that common sense requires the judge not to take a snapshot of whether on a particular day the applicant has been given a reasonable preference but over a period of time.  Sullivan LJ says:

It seems to me that if the scheme is to be operated in accordance with the guidance which does permit, in respect of choice-base letting schemes — criteria called in the guidance “advertising criteria” or “restricted labelling” — to be utilised, then inevitably there will be occasions when one particular group to whom preference must be shown will be advantaged somewhat more than others, but provided over a reasonable period as a result of monitoring a reasonable preference is shown to all groups, then that is sufficient to comply with Section 167.

As regards the argument that the scheme lacked transparency because of the system of quotas and targets for each group used by Westminster, Sullivan LJ notes the “trade-off” required between simplicity and complexity; and “… the more sensitive the scheme, it may well be the more complex it will be, and therefore it can be said that the less transparent it will be, but it seems to me that it could not be said that this scheme is so opaque as to be unlawful.”

The other interesting issue taken was that Westminster had unlawfully promoted a number of severely overcrowded households.  As Sullivan LJ noted, one of these promoted households subsequently was Mr Babakandi, but the more general point made was that this was precisely what was required by the 2009 guidance in terms of the monitoring of the scheme’s operation, and was an incidental adjustment as a result of that monitoring.

PTA refused.

Now, with that preface out of the way, let us turn to the Localism Bill.  There is so much going on in this bill that its title is misleading.  It’s not particularly or coherently about “localism”, but, at a much more fundamental level, the housing provisions are about changing the landscape of “the social” in social housing as well as tinkering around the edges (see my comments on the so-called “democratic filter” before a complaint can reach the ombudsman – it’s fair to say that I’m up in arms about that).  If it was about “localism” proper, then that would return us to a pre-1977 free-for-all, which (frankly) few people in power want. Then there are what can only be described as the meanderings of the Housing Minister, Grant Shapps (who, if my sources are right, is not the brightest smartie in the box).  Let me pick two such meanderings: he goes to Harrogate and announces that private rented properties will have to meet minimum standards before being used for homeless households, an announcement which pretty much unpicks the coalition’s policy to private renting and makes it seem, at best, incoherent; second, he says at one point that the minimum period for the flexible tenure should be five years, goes back on that, gets criticised for going back on that (not unreasonably), and then re-issues a draft direction (links to Inside Housing story) saying that they should be for five years and the minimum period of two years should only be used in exceptional circumstances.

What are we to make of all this? Not being in charitable mood this morning for various reasons, my view is that the coalition’s housing policy is pretty woefully thought-through; even that suggestion of thought may be too charitable.  But, at least, you would have thought that they would take account of local views as well as the views of experts.  As regards the former, we have previously commented on the frankly outrageous (told you I’m not in charitable mood) fact that the consultation period on the document, Local Decisions: A Fairer Future for Social Housing, ended on the day of the second reading of the Bill in Parliament (17.01.11) and the summary of the responses (leading, of course, to no change) was not published until 28.02.11 (see our respective discussions here and here).

As regards the latter, I’m not claiming for myself expertise in these matters, but the House of Lords contains too many experts on housing and draftspersonship to mention.  They are also a body which is responsible for the scrutiny of proposed legislation.  And they do it pretty well most of the time.  Yes, they can be a thorn in the side of government (as Thatcher would tell you) but they also moderate and make good some pretty frightful drafting (as I remember their approach to the then Housing Bill 1996).  Much of their best moderation (and, indeed, in the Commons) comes at Committee stage, when the house gets down to the nitty-gritty of the detail.

Now we come to the Localism Bill.  On 20.07.11, the HL committee stage of the Bill was completed.  In a matter of a few hours, debate was conducted on a range of fairly fundamental proposed amendments, from planning (including sites for Gypsies and Travellers) to the issues around social housing.  The debate was effectively guillotined, and amendments not discussed will be discussed at Report stage of the Bill (along with a raft of other amendments, no doubt, so that will be rushed as well); but the essential point is this: provisions and amendments which will have a huge effect on vulnerable and other households were dispatched in a matter of a few hours.  It’s pretty difficult to disagree with the Law Society press release that “It is impossible for the Lords to effectively carry out their function of scrutiny if they are forced to consider 40% of an enormous Bill in less than five hours.  This Bill includes some of the most radical social housing reforms in recent memory. The government has avoided scrutiny of them through regrettable haste.”  It all now depends on Report stage in the Lords and the amount of time the coalition will set aside from that, given the considerable amount of other business.

The government moved a huge number of amendments at this late stage during the parliamentary process to tidy up the Bill, including an interesting (well, to nerds like me) amendment to section 52, LPA 1925 excluding flexible tenancies from the requirement for a deed and from land registration requirements and changes to succession to shared ownership properties.  If they are doing this at such a late stage (I appreciate that it has been common practice for governments to do this, but look at the resulting quality of our legislation), it might be suspected not unreasonably that there will be some significant glitches (perhaps even worthy of the Prescription Act 1832).

Even Baroness Hanham, the DCLG spokesperson in the Lords, began her response to the grouped homelessness amendments by noting that “this is clearly a debate that needs a lot more time than we have got tonight” (col 1464).  Such was the speed with which the HL dealt with the amendments that the social housing ones were grouped together, so that the proposers spoke to most of the amendments before the government responded.  Reading the debate, the overwhelming feeling is that it was extremely high quality.  And they raised absolutely crucial issues – the length of the minimum fixed term, the scope of the review provisions, protections for vulnerable homeless persons provided with private rented accommodation, the ombudsman filter, etc.  I was particularly struck by a comment from Lord Newton about the “coherence” of the Localism Bill in the context of the coalition’s legislative programme:

I did on one occasion incur some possible unpopularity on my Benches by making the point that we have at least three-if not more-Bills on the go at the moment: the Welfare Reform Bill, the Legal Aid, Sentencing and Punishment of Offenders Bill, and this one, all of which impact on various disadvantaged groups, including disabled people. It is far from clear that there has been a joined-up approach to these bits of legislation. (col 1463)

Lord Newton (Tony Newton) is not one of my favourite politicians, but he has a point.  Let’s hope that the coalition sees some sense in the recess.  I doubt it, though.

In essence, Mr Babakandi was living in a tiny flat with his wife and two daughters.  The flat was severely overcrowded.  He applied for a transfer in May 2009  and is still waiting to be transferred. He was initially placed in Band B.   One reason why he may still be waiting is because he racked up rent arrears – well, when I say “racked up”, he had £222.32, which would hardly be enough to persuade a DJ to grant a possession order on – but Westminster’s scheme refused to allow their tenants with rent arrears to bid for properties (as entitled to do: s 167(2A)).  He was subsequently allowed to bid again after the Director of Housing removed his suspension.  In January 2009, before Mr Babakandi applied for a transfer, Westminster, promoted 44 severely overcrowded households into the highest band; they did the same in January 2010 and included Mr Babakandi’s application, so that he was moved to Band A.  The letter itself suggested that Mr Babakandi would be re-included in the scheme (ie the restriction on his bidding would be removed).

There were three grounds of challenge: the general one – which was based on a lack of transparency arising from the quota system, a failure to identify the criteria on which properties would be allocated to which bands, a the lack of basis in the scheme for the promotion of the severely overcrowded households, and the denial of Mr Babaknadi from the quota allocation; the second ground was that Westminster had fettered their discretion by applying a blanket ban on applicants with rent arrears; and the third ground was that Westminster had created a legitimate expectation that Mr Babakandi would be entitled to bid so that his his exclusion for the rent arrears was overwritten so to speak.

In a judgment which is quite remarkable in a way for the lack of citation of authority (Ahmad is referred to only through the 2009 DCLG guidance) and the only other authority cited is the North and East Devon Health authority case on legitimate expection, Nicol J rejected Mr Babakandi’s grounds.

On the first ground, Nicol J accepted that the scheme might not be as transparent as it might be because of the quotas and matching of properties with bands, “… but the authority was entitled to decide that this disadvantage was outweighed by the advantage of a more equitable distribution of its scarce accommodation” (at [20]).  The scheme had to be considered as a whole, and incorporate not just the scheme itself but also the annual reports, which, Nicol J said, is not unlawful.  It should be noted that Nicol J was “unclear” about how widely the annual report had been disseminated (see s 167(7)) but that didn’t matter as Mr Babakandi had been advantaged by his promotion (at [21]; note to self: it may matter in other cases).  On the question of matching, provided it is monitored as the code of guidance suggests:

[matching] does not necessarily mean that there has been an infringement of the statutory requirement to give “reasonable preference” to the groups specified in s.167(2). I do not interpret this obligation as meaning that such preference must be given at all times and in relation to all properties. It is sufficient if such preference is given over the course of a reasonable period. There is no evidence that the group of which the Claimant was part was not given such a reasonable preference. (at [22])

On the rent arrears suspension ground, Nicol J accepted Westminster’s submissions that automatic suspension had practical advantages (it is swift and effective, for which read efficient), and there was discretion in the Director of Housing where there were exceptional circumstances.  Simply because the criteria for exceptional circumstances were not set out did not make this part of the scheme unlawful.  The argument that the policy was uncertain (eg the “rule” that rent arrears of less than a week would not “usually” be taken into account) was, therefore, rejected.

On legitimate expectation, Nicol J held that the terms of the letter moving Mr Babakandi to Band A did not create a legitimate expectation that the rent arrears bar would be removed, but was addressing his move to Band A.  It was a standard letter to all of the households being moved up, and was not designed to deal with the individual circumstances of each applicant.  It did not create a clear and unambiguous legitimate expectation.

Mr Babakandi’s challenge was, therefore, unsuccessful.  The council did have the grace to say that it looks like Mr Babakandi’s wait for a transfer is coming to an end as he is now near the top of the list.

Of the grounds, and reading between the lines, there are three points by way of comment:

(1) There is something interesting going on in this case (at least the first two grounds) about the detail required in the specification of allocations schemes.  This is something on which we have paused for thought in the past, and on which the cases are less than clear (see our notes on R (Van Boolen) v London Borough of Barking & Dagenham [2009] EWHC 2196 (Admin)) but it isn’t clear that Nicol J really grappled with that issue.  It goes to the very heart of the transparency argument being run for Mr Babakandi.  On the first ground, it is (in my view) clearly right that authorities can’t be expected to specify at the outset their matching criteria because the purpose of matching is to be sensitive to the ongoing context, but, that having been said, one could (should?) do rather more to expose the formula for deciding those criteria, which properly should also be subject to consultation.

(2) More by way of observation, Nicol J’s version of truth on the meaning of reasonable preference shows just how far we have travelled since the heady days of R(A/Lindsay) v Lambeth LBC [2002] HLR 57.

(3) I can’t help feeling that Mr Babakandi had a right to have the decision to exclude him from bidding due to rent arrears reviewed (s 167(4A)(c) and (d)) but it was not clear from the report whether he had been informed of, or exercised, that right before the Director of Housing decided to remove that exclusion in his case.  I suppose, in one sense, it didn’t matter for Mr Babakandi as his suspension had been removed.  There’s a more general point here: the Part 6 review seems (to me) to be unexplored territory in the cases on allocations.  I’m sure that there is a simple answer why it isn’t discussed in the cases (as opposed to the extensive discussion of the Part 7 review process), but perhaps somebody would clarify that for me.  My suspicion is that many authorities’ standard letters don’t tell applicants about the right to review such a decision, but it’s easy for me to say that from my ivory tower and without any evidence to back that suspicion up.  I wish somebody would run such a challenge to expose the fact that the 1997 review regulations don’t apply to Part 6 applications, as they were made on the basis of section 164, 1996 Act, which itself was repealed in the Homelessness Act 2002.

A sensible consultation, a sensible closing date, and genuine openness – we English can only dream.

*This post continues our similarly styled, occasional foray into Welsh affairs.

If you get bored by stats, there are some choice bits.  For example, the government has clearly been stung by the criticism of its HB changes.  In response to concerns about the impact of these changes on the “new flexibilities” around homelessness discharge, DCLG says:

6.6 In fact, in the vast majority of areas, people will see a reduction of £15 per week or less in the Local Housing Allowance. We expect that some people will be able to make up the shortfall themselves and other tenants will be able to renegotiate rents with their landlords.
6.7 In some of the more expensive areas in the country there may be less affordable property available so some tenants may need to move to find cheaper accommodation. Even so, nearly a third of properties will still be affordable to Housing Benefit customers in London. Government is making £190m of additional funding available to help local authorities to provide support where it is needed.

Whether you buy into that or not, the empirical evidence to follow of the evaluation of these changes will prove interesting (DWP were trying to get an evaluation commissioned within a timescale so tight that some people didn’t bother putting in).

There’s also criticism of some respondents failing to appreciate that separating transfer applicants from newbies won’t be a requirement, just an option.

But the really crucial bits of this document are in Section 8.  Here, DCLG begins to outline its thinking on what the tenancy and mobility standards might look like (and, on which they are going to consult again): paras 8.10-12 and 8.24 are required reading. I don’t repeat them here as they are long but scroll down to page 48-9 and 51-2.  The latter is a little dull – internet-based mobility search engines but note the final bullet on p 52, which follows some of the responses that many tenants just don’t have internet access.

There’s more choice bits in Section 8:

• the length of the flexible tenancy: despite “a large majority” of respondents believing that two years isn’t long enough (para 3.24), the two year period remains “though we would expect … the vast majority of tenancies to be provided on longer terms, particularly for vulnerable households or those with children” (para 8.6);
• the length of the flexible tenancy  (again): despite “a majority of respondents” believing that there should be a longer minimum term for some groups (eg those fleeing domestic violence or with children in full time education) (paras 3.29-30), this hasn’t found its way into the proposals (or at least I couldn’t find it, presumably because of the prospect of legal challenge);
• allocations: apparently, the additional flexibility achieved by taking transfers out of the equation (if so desired) will lead to “less risk of challenge from those on the waiting list in housing need” (para 8.16);
• allocations (again): this is really for the afficionado, who’s aware of priority schemes for “good tenants” (like operates in Irwell Valley), but the government appears to back allocations schemes which “rewards tenants with a good track record” (para 8.17), which might make for an interesting series of challenges.

My sense is that, perhaps counterintuitively given the “local” nature that there will be plenty of opportunities for lawyers to muscle in on the local love-in – consultation on changes; increased use of internal reviews/appeals/complaints (see bullet points 4 and 6 in para 8.11); definition of “vulnerable households” (see bullet point 7 in para 8.11); issues over tenancy renewals, etc.  There are lots of unfortunate traps here and, one notable absence from this summary (which was presumably raised by at least the lawyer respondents, who don’t get mentioned [!]): Pinnock.