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Macbeth, Act 5, Scene 5*

By J
04/02/2024

It takes a special kind of person who, faced with the multifaceted horrors of our disfunctional housing system, decides that what is really needed is to make it harder for some people to access social housing and to create new grounds or possession.** Yet that is the current proposal from the Department of Levelling Up, Housing and Communities.

A “Consultation on reforms to social housing allocationswas published on 30 January 2024 and is open for responses until late March 2024. It marks, among other things, a complete retreat from the Localism Act 2011 reforms, with central government proposing to take away much (perhaps even most) of the freedoms which were given by the 2011 Act and to return to a much more centrally controlled system of social housing allocation in England.***

UK Connection Test

As readers will know, there are already complex immigration law inspired provisions which govern eligibility for an allocation of social housing. In broad terms, you need to be lawfully present in the UK and have no restrictions on your rights to access public funds. Asylum seekers are, therefore, ineligible for an allocation (althogh someone granted refugee status may be eligible). The Secretary of State often adds to the categories of eligible person, with recent examples including people who have fled Afghanistan and Ukraine.

The proposed reforms are badly expressed and explained in the paper, but, again, in essence, mean that the eligibility categories would be limited to:

(a) UK, Commonwealth, Irish and certain EEA/Swiss citizens;

(b) people lawfully present in the UK for at least 10 years with no restrictions on their right to claim public funds; and,

(c) other groups who have arrived in the UK under designated resettlement schemes (Afghans, Ukranians, etc).

It’s “(b)” that’s the important one. It would appear to be aimed at stopping refugees from becoming entitled to an allocation under Part 6. Leaving aside all moral objections to such a policy, it is, in its own terms, stupid. The current Part 6 (allocation of social housing) categories mirror those applicable to Part 7 (homelessness support). So, unless you change the Part 7 conditions as well, all that will happen is that your Part 7 costs will increase. Local authorities will have to accomodate refugees under Part 7, but will not be able to use Part 6 housing to discharge any duty. So, either the LA moves Part 6 stock into Part 7 (which could probably be made revenue revenue neutral to the authority, but would reduce the amount of housing available to allocate to those on the Part 6 waiting list) or the LA discharges the Part 7 duty  to those people by using a private sector discharge (assuming they all have a right to rent… otherwise it’ll need to wait until they get so ill that the Care Act 2014 kicks in or it take accomodate children and families under the Children Act 1989) and watch the housing benefit bill sky-rocket.

Local connection test

The proposal here is to require people to demonstrate a local connection to the local authority (defined as two years residence or employment, whether through themselves or family members, and such other associations as the Secretary of State may define). Exceptions will apply for care leavers, survivors of domestic abuse (where or where is the response to the 2022 consultation on this topic?) and persons arriving in the UK under resettlement schemes.

Given that, in my experience, many, perhaps even most, local authorities already have such a policy, one wonders precisely what this is intended to achieve.

 

Income test

This is perhaps the most vague consultation topic. We know that this is *not* an attempt to revive the failed “Pay to Stay”  policy (see first para under “new test” heading in the paper). Which is good, because that policy is daft, as the excellent  Wendy Wilson (who else?) explains  here.

Rather, this is a proposal that if a household income exceeds an unspecified (!!) sum then the household will not be eligible for an allocation. Welfare benefits would be disregarded, but the government has no idea how it would set the relevant level, or even whether it would be national, regional, sub-regional or even set by each local authority (which they can already do!).

What is this actually aimed at? Most allocations policies already have income/capital thresholds. What happens about making this work with, say, “right to move” provisions? Or local authorities who want to encourage particular kinds of employment in their area?Again, this smacks of headline grabbing rather than serious policy making.

ASB test

There is a propsal to bring back a form of the “ASB exclusion” which presently applies only in Wales (s.160A(7), HA 1996). Except that it seems that this would be a mandatory exclusionary rule, rather than one the authority can decide to adopt (as in Wales and as it used to be in England pre-Localism Act 2011). That’s important because there is a good argument that people who did one daft thing several years ago should not necessarily be excluded from social housing allocation as a result.

And, building on those concerns, the proposal is to have quite an expansive definition of what constitutes ASB, catching not just possession proceedings but also a range of civil remedies.

Interestingly, these prohibitions would lapse after a period of time, mirroring the Rehabilitation of Offenders Act. That would seem to be rather narrower than the current law, which permits even the circumstances behind spent convictions to be taken into account (I know YA says something different but YA was dissaproved in Hussain – see here).

As ever, the exceptions will be important. Domestic abuse or behaviour flowing from a disability seem to be excluded (as to which, see the recent Willott JR, here).

Terrorism

I can’t believe I have to write this. There is a propososal that those who have unspent convictions for specific terrorism offences cannot be allocated social housing. Has this ever happened? Is there really a local authority which hasn’t given itself sufficient flexibility in its scheme to exclude convicted terrorists?!

Fraudulent declaration

Where a person has made a false declaration in their application for social housing, they will be excluded from social housing for a period of time. FWIW, this is probably not objectionable. But how common is this as a problem? It’s already a crime to make a false declaration and in most cases you’d also have a ground for possession. Are local authorities somehow under protected against this horde of dishonest applicants?

New grounds for possession

Finally, we have some discussion around new grounds for possession. The first is a “three strikes and you’re out” proposal. Where a person has been responsible for three proven incidents and have received three warnings from the landlord (so… 6 strikes?) then a new (mandatory? discretionary?) ground for possession should be available. We are also to have a new mandatory ground for terrorism offences, ‘tho whether as adding to this to s.84A or a new ground is unclear. Again, I cannot believe I have to write this, but are there really District and Circuit Judges who are refusing to make outright orders against convicted terrorists?!

 

It’s hard to resist the view that this is posturing ahead of an election. Whilst some of this could be done by SI, you’d need primary legislation to change the grounds for possession with this new “three strikes” ground. If this is going to be shoe-horned into the Renters (Reform) Bill then it might have a chance of getting through Parliament, but otherwise this smacks of electioneering. And, frankly, the housing crisis deserves rather more respect and considered remedies. But then, when the average tenure of a housing minister is shorter than that of an anti-social introductory tenant, are we surprised that we get this dross?

 

 

* “It is a tale / Told by an idiot, full of sound and fury / Signifying nothing.”

** Repeat after me. The only solution to all aspects of the housing crisis is to build. more. housing. and. in. particular. more. social housing.

*** Part 6 is devolved in Wales, but immigration law isn’t. I see a fight coming here.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

2 Comments

  1. Bruce

    To keep the McBeth theme going do you think they have, “eaten on the insane root That takes the reason prisoner?”.

    Reply
    • J

      I think – sadly – that the politicians know full well what they are doing.

      Reply

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