Monthly Archives: January 2013

Social housing and the ‘deserving poor’

Andrew Arden QC and Annette Cafferkey seek out the underlying policy of recent changes in social housing law and conclude that it’s all about ‘the deserving poor’.

Introduction

Sometimes, it’s a struggle to make sense of all the policy changes there have been over the last year or two. Consider the following.

Private sector discharge of homelessness duty

The Localism Act 2011 allows authorities to discharge the main housing duty towards a homeless applicant by the provision of an assured shorthold tenancy, without the applicant’s agreement. If the applicant re-applies within two years, any intervening loss of priority need – such as children ceasing to be dependent – will not affect his or her position, but longer than that means he or she will not qualify for a further discharge of the full duty.

Flexible tenancies

That Act also introduced the flexible tenancy which means, in effect, that many if not most new local authority lettings will not be secure, will not be ‘for life’ and the right to stay on will need to be established anew each time it expires.

Welfare cap

The changes to housing benefit, in particular the caps on local housing allowance and household benefits, will inevitably mean that accommodation – whether by way of homelessness discharge or otherwise – will be outside the main city centres. Homeless applicants are likely to be driven further afield and dispersed to areas of the country with which they will very probably have no connection or even familiarity (although it remains to be seen how this will square with the recent suitability order, Homelessness (Suitability of Accommodation) (England) Order 2012 SI No 2601, which requires the local housing authority to take into account the location of accommodation offered when considering its suitability).

Allocations

The 2011 Act also allowed authorities in England to decide for themselves who are and are not to be ‘qualifying persons’, for the purposes of allocating social housing.

Pay to Stay

This is a policy (High Income Social Tenants Pay to Stay Consultation DCLG, June 2012), discussed in an earlier post, see 29 June 2012. In short, authorities are to be encouraged to charge higher rents to better off tenants – ultimately, the intention is to allow them to charge market rents.

Anti-social behaviour and mandatory grounds for possession

The anti-social behaviour proposals were detailed in the consultation paper, Putting Victims First, More Effective Responses to Anti-social Behaviour (Home Office, May 2012, also discussed,  more fully than here,  in an earlier post on 18 June 2012). The proposals include the extension of grounds for possession to include circumstances where the tenant or a member of his household has been convicted of an offence at the scene of a riot which may have occurred anywhere in the country (and is, therefore, unconnected to housing issues).

Whilst this ground for eviction will be subject to a reasonableness requirement, which affords some protection against abuse, there is a related proposal for the introduction of a mandatory ground for possession which can be used in circumstances where, for example, a tenant or a member of his household or a visitor

  • has been convicted of a serious offence in the locality, or
  • found by a court to be in breach a crime prevention injunction

even where neither has anything to do with the use of the property.

Conclusion

When one takes the proposals together, a theme emerges. The first of the changes – private sector discharge of homelessness duties – speaks for itself: it continues to minimise access to social housing by the homeless as a class – they must qualify not because they need the housing, but because they meet an authority’s own allocation criteria. Here, the Allocation of Accommodation Guidance (June 2012) encourages authorities to give a reasonable preference to members of the armed forces, households in work or seeking work or to those who are contributing to the community in other ways, for example, through voluntary work, fostering or adoption, ie to the ‘worthy’, people who ‘merit’ access to it.

As for flexible tenancies, they were said to be designed ‘to ensure that help and support are focused on those who need it most when they need it most; and to build strong and cohesive communities’ (Local decisions: a fairer future for social housing Consultation, DCLG 2010, para 2.10). Grant Shapps said (when he was Housing Minister): ‘The intention of time-limited tenancies is to give [social] landlords greater control over ensuring that their social housing goes to those most in need. It is senseless to pretend … that everyone … needs a lifetime tenancy’ (Inside Housing, 25 March 2011), he concludes, though most (not merely many) people – even those who are opposed to social housing – would hardly consider it either a pretence or non-sensical to need a home for life.

Plainly the ‘cuts’ to housing benefit were driven by public expenditure cuts, but– in the context of this blog – the point to make is that they were also implemented to ‘ensure that people on benefit are not living in accommodation that would be out of the reach of most people in work‘ ie there is more in play than mere cost-cutting – notions of putative fairness towards those not in receipt of social welfare provision also pervade.

Pay to Stay was also identified as ‘an issue of principle and fairness’, and is aimed at current secure tenants, rather than those to be governed by new, restrictive allocation policies who may only get a flexible tenancy in any event; the idea is to drive them out.

As for the anti-social behaviour provisions, it is increasingly clear that the withdrawal of social housing is being used as a form of punishment for criminal activity, even though the offence may be wholly unconnected with housing matters, and even though it inflicts the punishment on the family as a whole: this marks out those in social housing as being obliged, under pain of punishment, to maintain standards of behaviour which are simply not applicable to other citizens.

Of course, those standards are desirable; it is the way they are achieved that seems to us to be questionable. We have in one form or another been saying this for not years but decades: criminal conduct should be dealt with by the police and the criminal courts, not by housing officers and the civil courts.

Sometimes, standing back is the only way to see it. Taken together, there is a pattern. Social housing is not for life, but for now; you have to be poor enough to qualify and you have to be (and remain) worthy enough to deserve it; apparently, it’s only fair!

It’s unlikely to be considered fair, however, by those who are on the receiving end of it: the family member evicted because another member is engaged in criminality that is unconnected with the house; the homeless applicant sent to live somewhere with which he or she has no connections and to which he or she does not want to go to, where, incidentally, there are likely to be fewer job opportunities than in the cities; the tenant who has to give up his or her local resources and connections – education, medical, social, maybe even employment – because, at the end of a flexible tenancy, he or she cannot afford to live in the area;  the secure tenant who has worked hard for years and achieved promotion and/or higher pay as a result, but who is now required to pay a higher rent for his home than someone in the same accommodation next door.

Nor are we convinced it is fair to housing officers who will be called upon to make highly subjective judgments about people in a number of respects – including their willingness to work and about their life-styles – which few are trained and many will have little inclination to make, but which they will be put under pressure to make by local councillors.

Indeed, it is quite hard to see to whom the policy is ‘fair’. Is it really fairness to take something away from one person simply because someone else does not have it? Arguably, we suppose; but not as fair as making sure they both do so.

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