Monthly Archives: January 2014

Something to welcome – for a change!

Andrew Arden QC and Robert Brown consider a new report on social welfare law provision and find much to support in its proposals

It makes something of a change for this blog to to find something to agree with – it happens so rarely. On the other hand, as what we are agreeing with is the proposals in the LAG-commissioned Low Commission report, Tackling the Advice Deficit: A strategy for access to advice and legal support on social welfare law in England and Wales, perhaps it’s not that big a surprise.

The Low Commission was set up in 2012 by LAG to develop a strategy for addressing problems that had arisen as a consequence of cuts to legal aid and local authority funding for social welfare law provision at the same time as demand for services was increasing.

The present Government’s approach to legal aid is well known. Several areas of law were taken out of scope for public funding by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Social welfare law has been hit as hard as any other area. The Ministry of Justice has estimated that £89m per year will be cut from the budget for social welfare law, out of proposed total cuts of £350m per year. At the same time, local authorities are having to cut back on expenditure. The Commission estimates that local authority funding for advice and legal support bodies will reduce from £220m for 2010/11 to £180m (or even £160m) by 2015/16.

The Report contains a precise 100 recommendations. The very first of them relates to housing, which raises mixed emotions; pleased as we are to see housing law accorded the importance it deserves, it is of course a reflection on just how badly it has been treated by Government. It appears that the general public agrees, as the Report records that the public too recognises the importance of help addressing housing disputes: a January 2012 survey found that housing law should be the second highest priority for state funding (after child protection).

Returning to the Commission’s recommendations, the first is that

“The Ministry of Justice should conduct a ‘sense check’ review of the matters excluded from the scope of the LASPO Act and consider reinstatement of some provisions to ensure that there are no inconsistencies between its stated aims and practice. In particular, we consider housing cases involving disrepair and the right to quiet enjoyment (protection from harassment and unlawful eviction); and advice on housing benefit should be restored to the legal aid scheme.”

We wholeheartedly agree. The importance of funding for disrepair and unlawful eviction cases is obvious (some of which remains in scope). Nor can the significance of advice on housing benefit be underestimated: many possession claims have their roots in a housing benefit problem. At risk of stating the obvious, a stitch in time…

It is simply too much to expect tenants to be able to address all of the benefits problems that can arise. The intricacies of benefits law are, after all, something that can surprise even the Department of Work and Pensions, as demonstrated by the recent discovery that as many as 40,000 claimants may have wrongly had their housing benefit reduced due to an apparent oversight in the drafting of regulations implementing the so-called “bedroom tax”.

Proper advice to assist with navigating the complicated bureaucratic maze that is the benefits system can stop a tenant from falling into (or deeper into) rent arrears. In turn, that can save time and money (public money where social landlords are concerned) from being spent on chasing the tenant up for the rent. Even better, benefits advice can sort a problem out before a possession claim is issued, saving court time and public money – not to mention the stress and anxiety that is avoided. Then, of course, it saves money – and avoids misery – arising out of homelessness, whether deemed unintentional or even if intentional (when there are children involved so that social service expenditure has to be incurred).

That sort of joined-up thinking has been sadly lacking in the approach to legal aid and advice funding. As the Report rightly notes, the effect of changes to legal aid funding is not just that people have to wait until they reach crisis point before they can access advice, but that they get caught up in a ‘revolving door’ in the sense that they “keep returning to crisis point as the problem will only be temporarily masked, not solved”.

That cannot be good for anyone – including those who are paying for such a manifestly ineffective system. The case for reform is overwhelming.

To that end, the Report advocates a “fresh approach, which involves measures to reduce the need for advice and legal support in the first place”. Key elements of that approach include public legal education and simplifying the legal system.

Again, we agree. The importance of public legal education has always been a significant Law Centre activity, as the Report acknowledges.

Simplicity and clarity in the law is to be commended, especially in something as fundamental as housing law. Far too often, neither can be found. It is a sorry state of affairs when even experienced housing lawyers are sometimes unable to state with any degree of certainty what benefits claimants are entitled to, or what repairing obligations their landlords have, or whether they will be ordered to leave their properties and so on. Unfortunately, that is often the position.

This is not a new complaint: see A Arden, ‘Enough is enough – a cry for a housing code’, JHL 2006, 9(6), 93-95. We therefore have little optimism that things will get better in England, although there are some encouraging signs in Scotland and Wales, which we covered in a previous post. The Report adds its voice to the continuing demand that the Department for Communities and Local Government should revisit the Law Commission’s Renting Homes recommendations, which as we all know – and keep complaining – have still not been implemented in England.

The Report also calls for promotion of the role of housing associations in

“funding the provision of independent advice, especially face-to-face advice, through publishing examples of good practice, including joint commissioning with other housing associations, while also stressing the need for advice to be seen as an integral part of the business of running a housing association.”

We are less sure about some other recommendations, in particular that

“The Local Government Associations for England and Wales, the National Housing Federation and Community Housing Cymru should investigate the feasibility of making legal insurance cover available to social housing tenants.”

This strikes us as mildly out of touch with reality: true, housing problems are not confined to those who fail to manage their affairs properly (who would therefore be unlikely to take out the cover) but we doubt that the number of those who would anticipate problems early enough to do so would be sufficient to justify the cost of the investigation or experiment. What would be more realistic is a mandatory scheme pursuant to which social landlords are required to raise a small amount of additional rent to be diverted either to legal insurance cover or directly to fund legal advice and assistace: if across the social housing board, the addition would be small: with almost four million homes in the social rented sector, a rent increase of £23 p.a. would replace the £89m cut from the MoJ budget for social welfare law, not all of which is about housing so that an even smaller sum would make up the shortfall.

Taken as a whole, the Report recognises that there are no quick fixes, given the country’s finances, but that a long-term plan is needed, such as annual reviews of the impact of LASPO and a national strategy for advice and legal support for 2015-20.

We can only hope that the Government is listening. If not this one, then the next. Or the one after. Or the one after that. Just like the ones that went before – not!

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Should auld allocations be forgot?

In their first post of 2014, Andrew Arden QC and Robert Brown discuss new housing allocations guidance

As 2013 drew to its inevitable close, an efficient civil servant at the Department for Communities and Local Government (DCLG) took the opportunity to publish new guidance that will encourage local housing authorities to restrict the allocation of social housing to – mostly – local people. The additional guidance, Providing social housing for local people: Statutory guidance on social housing allocations for local authorities in England (the Guidance) was published on December 31, 2013. A cynic might suggest that this could be viewed as a good day to bury bad news, when people have their minds on other matters. Given the doom-laden reports then prevalent about an imminent immigrant invasion, however, we suspect that the reverse is true and that the timing was designed to try to get this into, rather than out of, the news. This might be supported by the – rather misleading – press release that accompanied publication of the Guidance.

“The guidance makes clear that only hard-working families, with a well-established residency, relatives or a job in the local area can go on their council’s waiting list, so they are the first [to] benefit when homes become available.”

The Guidance follows on from the consultation issued by DCLG in October 2013, discussed in a previous blog.

“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.

“…

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

It might have been hoped that the consultation process would soften some of the harsher elements, so that the Guidance did not suffer from the same failings. Sadly, there is no cup o’ kindness here.

Qualification for social housing

Instead, much of the consultation paper finds its way into the Guidance without change, some of it almost word for word. Perhaps more importantly, once we get into the substance of the Guidance, it appears that every substantive proposal put forward in the consultation paper has been adopted in the Guidance. (How far this reflects the responses is unknown: they have not yet been published).

Thus, at para.13, DCLG notes that

“Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing.”

The Guidance goes on to say that

“The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.” (Emphasis added).

The Guidance acknowledges that housing authorities might consider adopting other qualification criteria so that applicants who are not currently resident in the district but still have a “strong association” to it can nonetheless qualify. It is not much of an amelioration, if any. The two examples are: where there is a family association; and, where the applicant or a member of their household is currently employed in the district and has been so for a number of years (para.15). Neither does anything to counter the discriminatory effect of the proposals especially as the treatment of duties under Equality Act 2010 in the Guidance is, to put it mildly, superficial: it does nothing more than reminding authorities of the need to have regard to those duties, without any clue how to do so; merely pointing out a (well-known) set of duties does not equiparate to meaningful guidance.

One new aspect is the suggestion that some authorities may choose to share a common allocation policy with neighbouring authorities and adopt a broader residency test which would be met by living in any of those neighbouring districts (para.14). This appears attractive but consider how it works: there is never an exact match between stock size and profile of waiting list; accordingly, the larger the priority pool, the harder it is for anyone else to get in.

Exceptions

As foreshadowed in the consultation paper, the Guidance does suggest some circumstances in which exceptions should be provided to the residency/association test. The examples, which are said not to be intended to be exhaustive, include: applicants who have to leave another area to escape violence or harm; homeless families (although not, apparently, homeless individuals) and care leavers previously housed by the authority outside of their district; and, applicants who need support to rehabilitate and integrate back into the community (para.19).

At para.20, however, the Guidance also suggests that:

“There may also be sound housing management reasons to disapply a residency test for hard to let stock.”

Putting the principal thrust of the Guidance together with the exceptions and this proposition, what it translates into, somewhat ominously, is the use of those in particular need to fill up the worst stock.

The Guidance also reminds authorities of the Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869), to ensure that members of the Armed Forces are not disadvantaged by residency requirements.

Arguably, the only stance-softening on display (or, rather, not on display) is the failure of the suggestion in the consultation paper that in “the case of foreign nationals who are sleeping rough, appropriate options might include reconnection to their own country” to make it through to the final cut. This approach is, however, already extensively used and its absence is unlikely to stop it.

The Guidance informs us that there is a further consultation to look forward to in the spring, which will look at options to implement the Government’s new “Right to Move” policy. Doubtless, we will return to this at the time, but in the meantime the Government expects

“housing authorities to make appropriate exceptions to their residency test for social tenants so as not to impede labour market mobility.”

We finish by noting that there is also one important addition in the Guidance that had not been found in the consultation paper (para.5).

“Social housing – stable and affordable – is of enormous importance for the millions who live in it now and for those who look to it to provide the support they need in future. The way it is allocated is key to creating communities where people choose to live and are able to prosper.”

We would not disagree with the sentiment: it sits ill, however, with the policy thrust of flexible tenancy; and, the Guidance itself speaks volumes about the sort of divided and discriminatory communities which the government has in mind.

We are left wondering (to borrow immodestly from Arden & Hunter, “For whom is social housing?”, JHL, 2011, 14(5), 95-98):

“If publicly subsidised housing isn’t for the most needy, then who is it for?”

The urge to answer this question with “voters” is irresistible.

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