Allocations, Lettings &

Homelessness

An update on the latest

Case Law

Jan Luba QC

Housing Team

Garden Court Chambers

Keeping ahead…

• Textbooks are more

than 2 years old

• Monthly updater: Recent Developments

in Housing Law (Legal Action Group)

• Weekly updater: Housing Law Week

(Lime Legal Ltd) – free

• Daily updater: @JanLubaQC on Twitter

• Allocations & Homelessness case law

database: Case Law Digest (Trown

Housing Consultancy)

Our very own “enforcers”

• Local Government Ombudsman for

complaints about council practice on

allocations and homelessness

• Allocations archive 2014-2015

(showing 119 decisions so far)

• Homelessness archive 2014-2015

(showing XXX decisions so far)

• Housing Ombudsman for complaints

about housing association lettings and

transfers.

• And for nominations?

ALLOCATIONS

The Localism Act changes –

more than two years on

• Localism Act 2011

• In force from 18 June 2012

• Changes in England only

• Re-casting Housing Act 1996 Part 6

• Two key changes to law on local

housing allocation schemes:

• Ability to exclude/include by class

• Ability to take out non-priority transfers

• June 2012 and December 2013 Codes

of Guidance

Varying the local schemes:

consultation and more

• The minimum obligation to consult: HA 1996 section 166A(13)

• The Supreme Court on consultation requirements (Moseley v Haringey LBC [2014] UKSC 56).

• Taking into account: • Local Tenancy Strategy

• Local Homelessness Strategy

• London Housing Strategy

• Public Sector Equality Duty

• Need an equality impact assessment?

What about those on the old

scheme?

• Does the new scheme:(1) address transition from the old scheme; or (2) represent a ‘clean sheet’?

• Guidance from Faraah v Southwark

• What about the legitimate expectations of those on the old arrangements?

• Guidance from Alansi v Newham

• Importance of information and transparency: see Angus Council (ombudsman decision on transfer incentives)

Who “qualifies”

• The power of HA 1996 section 160ZA(6)

and (7) to set qualifying classes

• The December 2013 Code

• Describe those classes who qualify?

• Or just those classes who do not?

• Clear and careful drafting needed

• Different rules for different types of stock?

• What categories to adopt?

• When to check for qualification: (1) on

application or (2) pre-let or (3) both?

Can we keep ‘reasonable

preference’ hordes out?

• The five classes

• Two need no definition

• The tricky three

• Must all the applicants from all those

5 groups “qualify”?

• What the Code suggests

• What you actually do?

• Lessons from Jakimaviciute v

Hammersmith & Fulham LBC

[2014] EWCA Civ 1438

Do we need residual discretion?

• Qualifying rules are for ‘classes’ so they

will be hard-edged, precisely to define

who is in the class or not.

• Do we need sub-classes, excepted from

the main class?

• What about the one-off case?

• What do the Codes say?

• What will the Courts say?

• Hillsden v Epping Forest DC

[2014] EWHC Admin

How do we protect the

scheme from legal challenge?

• Never mind “What will the judge

say?”

• Better question: “Does our scheme

show our customers and staff who

gets what, when, why and from

whom?”

• Get it checked by a lawyer

• Remember the parameters from

Ahmad v Newham on challenges

HOMELESSNESS

The tricky questions

about duties owed

(Housing Act 1996 Part 7)

• Homeless?

• Priority Need?

• Eligible?

• Became Homeless Intentionally?

• [Got a Local Connection?]

A person is “homeless”

Unless s/he has:

• “accommodation”;

• “available for occupation”;

• with a right or entitlement to occupy;

• able to secure entry; (see 175(2)) and

• reasonable to continue to occupy

Not all easy questions

Temur v Hackney LBC

[2014] EWCA Civ 877.

Priority Need: “Vulnerable”

• Section 189(1)(c) & PN (England)Order

• Nearly 40 years on, two key questions…

• Do you need a comparator? (If so, compared to

whom?)

• Johnson v Solihull MBC [2013] EWCA Civ 752

• Ajilore v Hackney LBC [2014] EWCA Civ 1273

• What if the applicant can manage with help?

• Hotak v Southwark LBC [2013] EWCA Civ 515

• Kanu v Southwark LBC [2014] EWCA Civ 1085

• Supreme Court:

• 15-17 December

Eligibility

Everyone eligible for Part 7 services

except…

• persons subject to immigration control

(subject to exceptions); or

• persons from abroad (within the

definition of those treated as ineligible)

• Hines v Lambeth LBC [2014] EWCA

Civ 660 (pre-change Zambrano case)

• Samin v Westminster CC [2012]

EWCA Civ 1468 (EU ‘worker’)

• Supreme Court: 9 and 10 March

2015

Intentional Homelessness

• Deliberate act?

• Huzrat v Hounslow LBC [2013] EWCA Civ

1865

• Farah v Hillingdon LBC [2014] EWCA Civ

359

• Cause and effect:

• Noel v Hillingdon LBC [2013] EWCA Civ

1602

• “Would it have been reasonable to have

continued to occupy?”

• Birmingham CC v Balog [2013] EWCA Civ

1582

• Viackiene v Tower Hamlets LBC [2013]

EWCA Civ 1764

Intentional Homelessness 2

• As at what date?

• Haile v Waltham Forest LBC [2014]

EWCA Civ 792

• Supreme Court: 29 January 2015

Local connection

The optional extra

• The usual rules:

• Got a connection with us?

• If no, got a connection elsewhere?

• If yes, can we refer?

• If we can, shall we refer?

• Did you freely chose your last

location? NJ v Wandsworth [2013]

EWCA Civ 1373

The tricky issues

about performance

(Housing Act 1996 Part 7)

• Main housing duty

• Charging for accommodation

• Reviews

Main housing duty

• Section 193

• Performing it with an offer: s193(5)

• Nzolameso v Westminster CC

[2014] EWCA Civ 1383

• Ending it with an offer: s193(7) et

seq

• But is it suitable?

• Slattery v Basildon BC [2014]

EWCA Civ 30

Reasonable charges

• How much can we charge for

accommodation?

• A ‘reasonable amount’?

• R(Yekini) v Southwark LBC [2014]

EWHC 2096 (Admin)

Reviews

• Reviewer is reviewing the whole

question of what duty (if any) is owed.

• So on a review of “homeless but no

priority need” can decide “not

homeless”: Temur v Hackney LBC

[2014] EWCA Civ 877

• That means taking account of new

material, post initial decision:

Mohamoud v Birmingham [2014]

EWCA Civ 227