Well, Nearly Legal asks and the CLG deliver. We posted a note on 12 August, when not much was happening, asking why the new CBL guidance hadn’t seen the light of day (with some scurrilous thoughts), and a couple of weeks later it was published (link here) with no need for transparent envelopes. What’s more, it’s rather more ambitious than the original consultation draft and the CLG should actually be praised for walking the tightrope between the ministerial (and other) zealots on the one hand and, on the other hand, the existing law and practice.
As a result, there’s lots in it for advisors and housing officers/managers – there are reminders of parallel obligations (para 1.6) and continual stress of the need to take those into account in allocation processes (eg paras 4.60 and following concerning choice for disabled people with access needs). One problem is that not much is known about how vulnerable populations fare in the CBL process and compatibility with those other statutory obligations; at the same time, a number of local authorities are developing accessible housing registers, which may or may not impact on CBL processes. Considerable attention is given over in the Code to the identification of such groups and the types of support they might need (paras 5.19 and following).
What is CBL? We finally get an answer at para 2.7, which is worth quoting:
The term “choice based lettings scheme” will be used in this guidance to mean that an authority has adopted allocation policies and procedures which incorporate an advertising scheme.
The principal question with CBL concerns its compatibility with Part 6 as regards reasonable preference. The Code does what it can here to qualm concerns, repeating para 5.9 of the general Allocations code (at para 4.9 of the CBL code), and gives a pretty good statement of the current jurisprudence on this point. There are suggestions that priority cards – which were used by some of the original pilot authorities – may not be the best way of prioritisation (eg para 4.29), although it doesn’t say that they should not be used. On the other hand, the process of backdating applicants in greatest need (where time on the register is the joker) is “not recommended” (para 4.33). There is also an important comment on the limits of the waiting time joker, particularly in high demand areas or where there is a high level of housing need (para 4.47) – one might go further here and say that waiting time on its own is incompatible with Part 6 full stop (and, for those with a long memory, the Cullingworth Committee in 1969 wasn’t wildly happy with this system). But more generally, there is a feeling that there is rather more to be said (and, indeed, might be by the HL in Ahmad).
The policy watchwords with CBL are transparency and mobility. Transparency has a practical bent in terms of giving feedback to “homeseekers” about their chances – in many areas, no doubt the advice is to go elsewhere – but, for advisers, there will now be something to bite on, rather than the often hidden decision-making which used to go on in the grand old days of points schemes. Nowhere is this more apparent than in chapter 6 which concerns partnership arrangements. We don’t know much about RSLs’ allocations policies and practices in general (link here to the Housing Corporation Circular to RSLs), but this is going to be a growth area for JR/ombudsmen as schemes become more transparent and Weaver becomes more clearly embeddded. Chapter 6 of the Code deals with the complexities that may arise between local authorities and RSLs over nominations – note, in particular, para 6.7 about RSL exclusions, information sharing (para 6.12), and monitoring particularly as regards failed nominations (para 6.13-4) – and it also deals with private sector landlords (about which there remains a question as to how a private landlord may be challenged over allocation under Part 6 and 7). There’s nothing there, though, about the review provision in s.167(4A)(d) – the most important, underused (in my experience), and undervalued (there’s no SI supplementing it) right of Part 6 applicants (I still find it difficult to call people homeseekers).
Mobility clearly links with the housing options processes which most local authorities now seem to have in place (and about which there remain concerns about gatekeeping Part 7 applications). There is a general note at paras 4.79-80 and more detailed guidance on structures and processes in regional and sub-regional schemes in chapter 7. Now this is all very good and fine and it may well be entirely appropriate, but concerns must remain about the scope of the contracting out regs (link here). There is an excellent discussion of this issue at chapter 19 of Jan Luba and Liz Davies’ book but is not dealt with in the other books. The Code is rather hazy on this point saying that housing authorities have powers to delegate some of their allocations functions to other bodies but the general question concerns the meaning of the word “functions”. This is an outstanding issue.
Two cheers for CLG?