28/08/2014

A longer waiting to wait

Barnet Council are consulting on changes to their 2012 Allocation policy. The main change proposed is that the current ‘residence requirement’ of two years be increased to five years. That is to say that no-one would be eligible for Barnet’s housing register without five years demonstrable residence in the borough.  (And yes, this applies to the homeless equally). They are not the only London council to consider five years residence requirement – so are LB Southwark – but their stated reason for the increase is specifically because:

Increased costs in inner London combined with restrictions on housing benefit has resulted in more households moving to outer London boroughs like Barnet.

Yes, Barnet fears a tidal wave of central London refugees, pouring into Barnet, renting one of the affordable private sector properties (even though Barnet also say that the PRS rents are “now the 4th highest out of 16 outer London boroughs”), and then living there for two years to get onto the housing list.

Of course, even if you manage to live in Barnet for two years, you will then probably be refused because you don’t also have a reasonable preference under s.166 HA 1996 – see  Annex 1 of the current allocation scheme available here, (apart from Barnet thinking it is s.167 HA 1996, which only applies to Wales. Dear Barnet, you are not in Wales.)

But still, two years is apparently not enough. In order for Barnet to make sure that people aren’t waiting on their waiting list, it is apparently necessary to dramatically increase the length of time people must wait to get to wait on the waiting list in the first place.

Amongst the other proposed changes is an increased penalty for not accepting a reasonable offer (to two years ban from one year) and sneakily:

Households at risk of violence will have to apply as homeless so that they can be placed in temporary accommodation and be removed from the risk more quickly.

Why has this replaced the previous ‘reasonable preference’ and Band 1 priority? The obvious answers are that i) Barnet largely discharges its homeless duty into the private sector, thus avoiding housing those at risk of violence, and ii) as it would apply to transfers, it would end an existing secure tenancy, making any fresh council tenancy, even if actually achieved via the homeless route, into a new flexible tenancy (and see here on Barnet’s flexible tenancy policy).

So yes, Barnet intend to penalise people who are at risk of violence by effectively removing their chances of obtaining or retianing social housing, not to mention keeping them in temporary accommodation in the interim.

And the glorious ‘community contribution’ requirements (for housing preference) for those not employed are to be increased from 10 hours per month to 16 hours per month working for:

a not-for profit organisation that is registered with the Volunteer Centre Barnet or recognised by the Council, or a charity that is registered with the Charity Commission or is funded by the Council or another local authority or a faith based community group or organisation. Tenants and Residents Associations which are constituted are classified as not-for-profit organisation [sic.] They must be registered with Barnet Council or a Registered Social Landlord to qualify.

I spent quite some time looking at the previous/current Barnet allocation policy for talks at HLPA and HLPA North West. I was not impressed – indeed, the policy seemed to have some significant legal flaws. My notes from July 2013 can be downloaded here, with the usual provisos on now being out of date. (E.g. one of the issues raised in that talk may, for now at least, have been rendered academic by R (Jakimaviciute) v LB Hammersmith and Fulham [2013] EWHC 4372 (Admin), but others, I think, haven’t).

However, Barnet so far have avoided challenge, by luck perhaps.

The question is for Barnet (and other councils looking at a five year residence requirement), is whether these requirements are arguably unlawful. This is a question given added impetus by R(Winder) v Sandwell MBC, EHRC intervening [2014] EWHC 2617 (Admin) [our note].

While a residence requirement for allocation is probably not ultra vires, by reason of the Localism Act, the free movement, discrimination and Public Sector Equality Duty grounds raised successfully in the Sandwell Council Tax Relief JR might also be considered in relation to the operation and extent of a residence requirement for allocation. I don’t have a developed argument (yet) but it bears thinking about.

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

16 Comments

  1. JS

    Case Tracker is saying PTA was granted in Jakimavicuite and it is listed for hearing in October

    Reply
    • Giles Peaker

      Excellent. Thanks JS – clearly my moles have let me down ;-)

  2. Geraldine Winkler

    Luck Barnet has not been challenged ? Or out of of scope for public funding. There is more than one way to restrict the public’s options.

    Reply
    • Giles Peaker

      I agree funding post-LASPO makes it difficult. No housing allocation JR funding. If it can’t be squeezed under homelessness, would have to be by a firm with a general public law contract.

  3. Paul Sowerbutts

    We at SSP Law are a legal aid housing firm in Finchley, LB Barnet. When Barnet Council’s Allocation Scheme was changed after the Localism Act we began to discuss with the CAB, local solicitors and the voluntary sector (we meet regularly under the umbrella of Advice Barnet Project – ABP) how we might challenge the new scheme. As ABP we have not had much success, but at SSP Law we have had some in particular by persuading the council to use their discretion and permit qualification – a recent success was a lady found IH, who was denied a place on the waiting list in line with the scheme but following our challenge was accepted.

    We have really only recently begun to establish ourselves in Finchley and so were not involved in the consultation for the first changes to the Allocation Scheme, but we are in the process of putting something forward for this consultation, deadline end of next month. I have focused on the change from 2 to 5 years residence. The council say following an ‘analysis’ this will reduce the number of applicants by 12.7% and assist in further savings. The Housing Committee that considered the changes on 30/6/14 were clearly required to consider the effect from an Equality and Diversity view point and so I have asked for confirmation through a Freedom of Information Request for a copy of any report that followed the ‘analysis’ as it seems to me that if there are a reasonable number of the applicants that would no longer qualify (were the changes put into effect) with ‘protected characteristics’ as provided by the Equalities Act 2010, then the proposals maybe unlawful.

    If anyone has any thoughts on this line I would be grateful. So far the council have referred me to Barnet Homes as to my request for information and Barnet Homes has indicated they may not be able to send me the information until after the consultation has closed; so far the council have not confirmed whether they will extend the deadline. Could a refusal by the council to allow us time to properly consider the information Barnet Homes might send be unlawful?

    Reply
  4. Sarah McKeown

    Hillingdon have a 10-year residence criterion.

    Reply
    • Giles Peaker

      Heavens, so they do. Hmm.

    • Arfan

      We have had some success asking the social welfare panel use their discretion to side step this in some cases. We did look into a possible challenge when this came in but funding was a big issue.

  5. Sally Eva

    Southwark is still thinking about the changes. Last time I looked the residence requirement was still 6 months. One thing driving the change to five years is that other local boroughs are considering it. If your neighbours want five years and you want two then people will choose your side of the border (if they have a choice). There are 19,000 people on the waiting list for council housing in Southwark.

    Reply
  6. John Perry

    Barking & Dagenham have just decided to end their 10-year requirement and revert to a three-year one. When they made the original decision a few months ago, their own impact assessment suggested it would affect an enormous number of people and officers advised that (of the options considered) the 10-year one was likely to be challenged legally. Local campaigners RAMFEL appear to have succeeded in getting them to (partially) back down.

    Reply
  7. Razvan Veer

    Giles can you clarify one point for me? You said : “Of course, even if you manage to live in Barnet for two years, you will then probably be refused because you don’t also have a reasonable preference under s.166 HA 1996 – see Annex 1 of the current allocation scheme available here, (apart from Barnet thinking it is s.167 HA 1996, which only applies to Wales. Dear Barnet, you are not in Wales.)”

    as far as I understand it, s 167 HA 1996 applies to England – I would have thought the s 16 of the Homelessness Act 2002 commenced by order of a statutory instrument made by the Secretary of State. Am I mistaken?

    Reply
    • Giles Peaker

      Razan

      S.167 HA 1996 as amended by Localism Act –

      “167 Allocation in accordance with allocation scheme [: Wales]”

  8. Razvan Veer

    Razvan :)

    why would s 167 only apply to Wales?

    Reply
    • Giles Peaker

      Sorry, Razvan ;-)

      Because s.166A has the provisions for England. And because it says WALES in the section title. Amongst other things.

  9. Razvan Veer

    I realised that. I thought more of the purpose behind it

    Reply
    • Giles Peaker

      Because Wales has separate regulation and control of some areas by Welsh Ministers. And some different rules.

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