Monthly Archives: November 2013

Housing allocations – go home foreigners?

Andrew Arden QC and Emily Orme discuss the consultation paper on the proposed new housing allocations guidance and its likely effects.


On October 14, 2013, the Department for Communities and Local Government (DCLG) issued Providing social housing for local people: Strengthening statutory guidance on social housing allocations. The paper follows amendments to Part 6, Housing Act 1996 by the Localism Act 2011 to allow English authorities to set their own categories of “qualifying persons” (as a precondition to allocation, i.e. without qualifying, reasonable preference does not come into play), and the more recent ‘Allocation of accommodation: Guidance for local housing authorities in Englandissued by the DCLG on June 29, 2012. The Ministerial Foreword to the Guidance commented that “Under the previous Government housing waiting lists almost doubled, with many people left languishing on waiting lists for years.”. The changes were said to enable local authorities to “…better manage their waiting lists and promote mobility for existing social tenants.”


The purpose of the new proposals are to allow authorities to ensure that “…they prioritise applicants who can demonstrate a close association with their local area.” More specifically, the consultation paper includes the following.

  • All local authorities should be strongly encouraged to adopt a two-year residency test as part of the qualification criteria for housing allocation.
  • Favouring applicants able to demonstrate a strong association to the area.
  • Provision of exceptions to the above to protect:
    • people moving into a new area whilst fleeing domestic violence;
    • homeless applicants housed outside of their local authority area;
    • care leavers housed outside their local authority area;
    • applicants already in social housing who do not satisfy the proposed new residency test, but who want to downsize or move for employment purposes.
    • A sympathetic approach to ex-service personnel and their families.
    • Reminders to local authorities to operate a housing options approach alongside a restricted waiting list, i.e. assisting people to find non-social housing.


The last proposal is “refined” by reference to foreign nationals sleeping rough and suggests that an appropriate “housing option” might include “…reconnection to their own country”.


If the proposal for applicants to demonstrate a close connection to the local area in order to qualify for an allocation of social housing doesn’t restrict access for foreign nationals and immigrants, then the residency test certainly will. It is very difficult to see how this is not exclusion from social housing by the use of discriminatory criteria. The “exception” for people moving to find work applies only to those already in social housing.


As for the other exceptions, they do not go anything like far enough to take the edge off. Communities shift and change far more rapidly than they ever have before. National and international travel is faster, cheaper and more available than ever. People move between communities for many reasons, not just fleeing domestic violence or in search of employment: families break down and grow, people need to move into or out of areas for reasons of health, or as education begins or ends, or to be near other family members already relocated as each other’s needs change, e.g. to provide one another with care or even, as children leave the home, company. If, within two years of a move to a new local community, housing is lost and a person needs to apply for social housing, they will be excluded from re-allocation.


The proposals are simplistic. They promote indirect discrimination against foreign nationals and fail to take account of the realities of modern living. The outcome may – as intended – mean shorter waiting lists for social housing but only because authorities will be exercising a carte blanche to exclude large numbers of people who currently qualify and the price of it will inevitably be an increase in the number being housed under Part 7, and for longer periods. It might reduce the numbers on the waiting lists, but it is not going to reduce the number of people actually waiting for social housing so much as sweeping them under the carpet.


Nor will this be the end of it. The recent announcement that the government intends to limit access to welfare benefits to those who have been in the country for a year will, of course, extend to exclude assistance under Part 7. If, therefore, a worker moves here from elsewhere in the EU, with a job, family and accommodation – no benefit tourism or even work-seeking involved – but likewise loses the home through no fault of his own, it is not merely that he will not qualify for an allocation under Part 6 – realistically, he would be highly unlikely to have secured one – and not merely that he will not qualify for assistance under Part 7 but that authorities will not be able to assist him; in turn, he will not clock up time for an allocation even in the longer term.


Why do the words “go home foreigners” ring in our ears?

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“Letting” tenants down

Andrew Arden QC and Emily Orme discuss recent announcements about the private rented sector in England and compares them to Wales and Scotland.

Communities and Local Government Committee – First Report of Session 2013-14: The Private Rented Sector was published in July 2013. As part of its conclusion, the Committee recommended five key actions:

  •  getting the law right by reviewing and simplifying the legislation covering the sector and promoting awareness of rights and responsibilities;
  • giving local authorities the tools they need to enforce the law and raise standards across the sector;
  • better regulation of letting agents and a crackdown on unreasonable, opaque fees and charges;
  • a cultural shift towards longer tenancies, with a more consistent and predictable approach to setting rents; and
  • a renewed effort to boost housing supply, with the aim of increasing choice, quality and affordability across the private rented sector.


“Reviewing and simplifying the legislation” – duh; has no one told them about the Law Commission recommendations – Renting Homes? Well, yes, Professor Martin Partington, the former Law Commissioner in charge of the housing law reform programme did appear in front of the Committee, but it – as the last government and this – has continued to ignore the best and most informed opportunity we have ever had to put housing law within the grasp of those most affected by it, tenants and landlords. As for housing standards, the most massive reform for over a century was implemented by Housing Act 2004: the substitution for the concept of unfitness which had barely matured since introduced in statute in the 19th century with the Housing Health and Safety Rating System: so what does the committee want to do in the face of such imaginative innovation? Why, of course, it wants to get rid of it. The only enforcement tool authorities need is the money to do their job, not a 40+% cut in real terms by 2015. As for the other so-called “recommendations”, “better regulation,” “cultural shift,” “renewed effort” – let’s not hold our collective breath until real reform arrives.


And what do we get out of this disappointing beginning of this latest chapter in the roiling review of housing regulation? Unsurprisingly, more disappointment.


On October 16, 2013, the Secretary of State for Communities and Local Government, Eric Pickles, set out a number of proposals, including:

  •  “within days” he would “…publish new regulations that will force letting and property management agents to join a compulsory redress scheme…”
  • “…publish a new code of practice setting standards for the management of property in the private rented sector…”
  • “Set out the timetable for the introduction of a model tenancy agreement, which landlords can use to offer longer tenancies of 3 years or more…”
  • “…produce extra guidance for local councils on how to protect tenants from illegal eviction, how to push for harsher penalties before magistrates for housing offences where these have a real impact on peoples’ lives”, and
  • “to plan for new private rented developments in the future.”.


On the same day, the Department for Communities and Local Government published a Draft Tenants’ Charter, a proposal to “…help more than nine million people who live in the private rented sector in England have a better understanding of what they can expect and, if something goes wrong, where to go for help.


The draft in its current form is eleven pages long and little more than a list of things that tenants ought to think about or investigate when they become a tenant. It does not set out any minimum standards and it is not binding on landlords. It poses questions such as:


  • Is there a written tenancy agreement?
  • Has the landlord provided a rent book?
  • What is the length of the tenancy?
  • ·Why are you reading this vapid document?


As for the new regulations, on October 24, 2013, a Standard Note (The regulation of private sector letting and managing agents (England)), was quietly released by the House of Commons Library which indicated that, contrary to Eric Pickles’ announcement, the Government “…does not intend to introduce regulation in the sector and points “instead to the existing range of available powers under consumer protection legislation…”. What is on offer is an amendment to the Enterprise and Regulatory Reform Act 2013 which enables the Government to require agents to sign up to a redress scheme with regulations to follow. The regulations are now available in draft: while they may, on their face, appear to show some teeth, in practice, and as anyone with the first experience of the private rented sector knows, they will be entirely ineffective so long as tenants lack security of tenure.


There’s no sign of that – just of a culture of longer tenancies!


The code of practice for property management is to be proposed under s.87, Leasehold Reform, Housing and Urban Development Act 1993, but there is no news yet of any steps towards a model tenancy agreement or the production of guidance for councils. Nor, most substantially of all, is there anything concrete directed to the most basic part of the puzzle, the lack of housing available to rent at an affordable price.


In short, what we have is a failure to implement real reform (Renting Homes), coupled to an intention to abandon the best work done in relation to housing standards for 100 years, minor regulation, guidance and codes in a sector in which the balance of power is so profoundly weighted against the tenant that nothing short of legislation can possibly redress it: a few days after November 5, the only thing we can say is “do not bother to stand back after lighting fuse”.


The contrast with Wales and Scotland is embarrassing.


In September, the Welsh Assembly published a White Paper (Renting Homes: A better way for Wales, Welsh Assembly, May 2013) foreshadowing adoption of the original Law Commission proposals, with a draft Bill anticipated in 2015 and the new framework in effect as early as 2016. The White Paper follows Homes for Wales: A White Paper for Better Lives and Communities (Welsh Assembly, May 2012) and Proposals for a Better Private Rented Sector in Wales (Welsh Assembly, July 2012) in which comprehensive proposals for legislation to establish a national, mandatory registration and licensing scheme to regulate landlords, lettings and management agents in the private rented sector were put forward. The Welsh are also moving forward with these proposals together with others, including:


  • simplify and standardise rental contracts, making the overall contract and the specific terms they include much easier to understand.
  • all landlords will be required, as a condition of the rental contract, to ensure that there are no Category 1 health and safety hazards present in the property.
  • a joint tenant may give notice to a landlord and other joint tenants to withdraw from the tenancy without terminating the tenancy of the other joint tenant(s).
  • Removal of Ground 8 – mandatory possession for rent arrears.
  • Requirement for landlords repairing obligations in s.11, Landlord and Tenant Act 1985 to be expressly included all tenancy agreements.


In Scotland, a consultation exercise that started in January 2013 has been seeking views on a proposal to introduce a new Housing Panel to work alongside the current Scottish court system and help resolve housing disputes without recourse to litigation (Better Dispute Resolution in Housing: Consultation on Introduction of a New Housing Panel for Scotland, Scottish Parliament, January 2013). The consultation focused on three main proposals:


  • Expanding the use of mediation, other forms of alternative dispute resolution and other early preventative action by landlords, tenants and relevant regulatory bodies in resolving housing disputes;
  • Creation of a Housing Panel providing a problem solving forum which could make binding interim orders before a case reached court; and
  • Creation of a Housing Panel replacing the court as the main forum for resolving some housing disputes so as to avoid litigation.


Perhaps the answer in England was to be found on the government website for the Minister of Housing which, until very recently, read:


… not a current government role.”


The fact that the widespread ridicule which this generated led to revision of the site does not alter the fact that housing no longer has a Minister, only a Parliamentary Under-Secretary: the reality is, as it has long been, that housing may be an important economic issue, but as a social institution or environment, it isn’t important enough to do anything about except make noises as elections approach.

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