Our responses to the questions put are set out below. We have omitted the questions directed solely to local authorities. However, as general comment on this Consultation Paper, and bearing in mind that the drafters of this response include lawyers who, individually, have up to 50 years of experience in responding to consultation papers, including those from departments of the UK government, we regret to add that that we have not previously come across such a shallow paper as this. So much so that we wondered whether the actual purpose of the paper was to reduce the burgeoning housing waiting lists by avoiding the allocation of accommodation or provision of more. Normally we would have expected the relevant factual and legal background to be set out, followed by a reasoned analysis and identification of the perceived problems and finally positive and clear proposals. There is scarcely any of that in this paper and, on occasions, we were left with the impression that the DLUHC wanted the consultees to do its job for it. We have done what we consider to be the best we can do.
UK Connection Test
QUESTION
Q2 – Do you agree that an individual should have to demonstrate a connection to the UK for ten years before qualifying for social housing (if they do not meet the test otherwise or are exempt)?
RESPONSE
We do not agree with this proposal and do not propose any alternative qualifying period. As above we do not support a “UK connection test” as proposed (10 years) or of any length. Our reasons are as follows:
(1) As Chapter 4 of the Consultation Paper (CP) states, before there can be an allocation, 3 criteria are to be met, the first being eligibility: “Persons subject to immigration control are only eligible if they have an immigration status with recourse to public funds, for example, a refugee or a person with indefinite leave to remain.” A person (or persons eg a family unit) who has achieved refugee status has already undergone an exacting process in order to do so. This includes a journey initiated by danger or persecution, carried out with hardship, the risk of a crossing and an anxious period (possibly measured in years) of interview, examination and waiting. During that time, the person (or persons) are not eligible for either homelessness assistance or an allocation from the local housing authority. Support from the state is provided by way of s.95 Immigration and Asylum Act 1999 support, by the Home Office. It seems to us that connection with the UK and determination to establish such has already been demonstrated by the time refugee status is achieved and should not need a further lapse of time to do so.
(2) the 2nd criterion is that a person must meet {local authority} qualification tests. The consultation states: “[s]ince 2012, local housing authorities have set their own criteria, determining who qualifies for an allocation of social housing, for example, requiring that an individual has lived within the local authority area for a certain period of time. These tests vary between each local authority area”. We note that no alteration is proposed here and so the refugee will be subject to the same criteria as any other applicant. (However, please refer to our answer to Question 9 below)
(3) the third criterion is that “a person must have sufficient priority for an allocation. Local housing authorities are required by law to devise schemes that give ‘reasonable preference’ to certain categories of applicant. [s 166 A (1) (3) Housing Act 1996] This includes people who are homeless, people occupying insanitary or overcrowded housing, people with a need to move on medical or welfare grounds (including relating to a disability), and people who need to move to a particular area to avoid hardship to themselves or to others. ‘Additional preference’ may be given to people with ‘reasonable preference’ in urgent housing need and must be given to certain members of the armed forces community. Otherwise, local housing authorities have discretion over how they allocate social housing in their area.” Again, the refugee will be subject to the same criterion- of being in housing need- as any other applicant. In our view, housing need is and should remain the major criterion.
(4) in addition, there is no assessment of the impact that imposing such a test would have on the availability of social housing, (which is to be substantially increased according to the Paper). We suspect it would be marginal. However the Paper has no information to offer on that aspect. We would have thought that was a relevant consideration since the logic of the test proposed is that meeting the housing need of the applicant who is not a refugee is disadvantaged by meeting the need of the refugee absent length of residence. We observe that this proposal is potentially a breach of the requirement, under Convention relating to the status of refugees 1951, that refugees are entitled to equal treatment once refugee status has been granted.
QUESTION
Q3 – Do you think there should be any further exemptions to the UK connection test, for example for care leavers?
RESPONSE
As we do not agree with UK connection test as proposed or at all, we have no response to this
question.
Local Connection Test
QUESTION
Q9 – Do you agree that an individual should have to demonstrate a local connection with an area for two years before qualifying for social housing (unless exempt)?
RESPONSE
We do not agree with this proposal. Nor do we propose any alternative. First, we observe that it is unclear whether the proposal is that the local connection can be established while the applicant was still an asylum seeker or that the two years only starts to run after refugee status has been granted. If this proposal is implemented, that needs to be clarified. However, whatever the position, we oppose this proposal for the following reasons:
(1) We appreciate that this test is intended to apply to all applicants and is not confined to those who have achieved refugee status. However it is likely to have greater effect on refugees than longer term residents such as citizens those with indefinite leave. We refer to (1) under our response to Q.2 above. In view of the experience the applicant has already undergone before achieving refugee status, including a period in which s/he has been residing in accommodation, not necessarily of his/her own choice, or in a location of his/her own choice we consider it unfair to further restrict qualifying for an application for social housing (which application will not necessarily lead to an offer of housing in any event).
(2) We observe that the local connection provisions of the Housing Act 1996, in Chapter 7 “Homelessness : England”, upon which this proposal is supposedly modelled, do not require an applicant for accommodation as homeless to have a local connection with the local authority to which the application is made. Local connection only becomes relevant if that local authority considers that the applicant has no local connection with it but has a local connection with another local authority. If the homeless applicant has no other local connection than the local authority to whom the application has been made must accept it. The proposal , although apparently following the local connection test for homeless applicants, is, in fact, stricter.
(3) We refer to (3) under our answer to Q2 above. As above In our view, housing need should be the major criterion.
(4) We refer to (4) under our answer to Q2 above. Similarly there is no assessment of the impact that imposing a local connection test would have on the availability of social housing.
(5) We further note that this proposal is intended to impose a mandatory requirement on local housing authorities to apply a local connection test. The Localism Act 2011 permitted local housing authorities to apply qualification tests but did not require them to do so. Whilst many local housing authorities do apply a local connection or residence test, we consider that it is right for local housing authorities to have the discretion whether or not to apply a qualification test.
QUESTION
Q10 – The government intends to use the same definition of local connection as in section 199 of the Housing Act 1996. This definition would mean that a person has a local connection:
– because they are, or in the past were, normally resident there, and that residence is or was of their own choice;
– because they are employed there;
– because of family associations; or
– because of special circumstances.
Do you agree that definition should be used?
RESPONSE
As we do not agree with a local connection test as proposed or at all, we have no response to this question. Please see our response under Q9 above.
Exemptions from test
QUESTION
Q11 – The government proposes to exempt care leavers from the local connection test for social housing up to the age of 25 to align with broader Corporate Parenting Principles, which sets out the responsibilities of local authorities towards children and young people in care. Do you agree?
RESPONSE
As we do not agree with a local connection test as proposed or at all, we have no response to this question.
QUESTION
Q12 – Do you think there should be any further exemptions to the local connection test?
RESPONSE
As we do not agree with a local connection test as proposed or at all, we have no response to this question.
Income Test
QUESTION
Q16 – Should the same threshold for the income test apply across England or should it vary?
RESPONSE
Our observations are as follows:
(1) If the government with the resources and opportunities for obtaining information at its disposal cannot make a proposal on this issue, it is difficult to understand why it expects consultees to do so. Nor does the Society have those resources or expertise available. We do not make a threshold proposal. We do make the general points that follow.
(2) We oppose an “income” test as proposed or at all. In particular we oppose a blanket income threshold that automatically excludes an applicant from consideration. The result of any such test, if introduced, should be treated as a relevant factor and not determinative.
(3) We refer to our response to Q2 in particular at (3) above. The main criterion for allocation should be housing need as indicated by statute. We acknowledge that this can involve an assessment of the applicant’s financial resources in order to determine whether it would be reasonable for the applicant to obtain his/her own accommodation from his/her own resources. This can be achieved on a case by case basis.
(4) In the event that there is such a test, the local authorities, which are in the best position to do so, should be allowed to set their own thresholds based on local circumstances, reflecting local incomes, local housing costs etc. A national threshold would fail to take into account the wide variations between income, resources and housing costs that exist in different parts of the country.
(5) We note that this proposal reflects the “pay to stay” provisions in Housing & Planning Act 2016, Chapter 3, which has not been brought into force and there is no intention to bring into force, due to concerns about how these proposals would be implemented. What happens if an applicant’s income fluctuates, for example? What are the privacy implications of requiring an applicant to state his or her income? Will tax returns be required? The proposals are not cost-effective.
QUESTION
Q17 – Should income data be assessed at household or individual level? If household, whose income data should be assessed?
RESPONSE
The Society does not take a view on this issue.
QUESTION
Q18 – Assuming household income is based on the two highest earners working full time, what should the income cap be set at?
RESPONSE
The Society makes no further response to this question. The response to Q16 at (1) above refers to this as well.
QUESTION
Q19 – Should capital assets be included in the assessment? If yes, what type of capital assets should be included, and what threshold should be set? Capital assets could include savings in an interest-bearing savings account; savings in a non-interest-bearing current account; bonds, stocks and shares; property that the applicant does not live in; and land.
RESPONSE
The Society makes no further response to this question. The response to Q16 at (1) above refers to this as well.
QUESTION
Q20 – Do you agree that households where an individual is in receipt of Universal Credit, housing benefit or other legacy benefits (which are being replaced by Universal Credit); households who need or live in supported housing; and members and veterans of the UK armed forces should be exempt from an income test?
RESPONSE
If there is an “income test” of any description, then we agree with these exemptions.
QUESTION
Q22 – Do you think there are any circumstances where a minimum income threshold to determine who should be allocated a social home is appropriate, for example to incentivise being in work? If yes, please detail:
RESPONSE
The Society does not agree with any such proposal. We refer to (1) and (3) under our answer to Q2 above. need should be the major criterion. Incentivising seeking employment at a higher wage is not an appropriate consideration in deciding whether or not to accept an application for accommodation, in our view.
Anti-Social Behaviour Test
QUESTION
Q24 – Do you agree that a conviction/sanction for anti-social behaviour should result in a disqualification period from accessing social housing? If yes, how long should someone be
disqualified for?
RESPONSE
We do not agree with this proposal for the following reasons.
(1) Local authorities already have the power to introduce anti-social behaviour (ASB) criteria into their allocation systems and have done so as the consultation paper acknowledges (as well as setting out the battery of provisions for dealing with ASB that already exists). We see no reason why this issue should not be left to them, taking into account local circumstances. No reason or evidence is produced to show that the present system is not working satisfactorily save for the bald assertion that “there is no common approach”. Nor is that necessarily a criticism and no evidence is produced to show that it justifies any. We believe that a lack of common approach is appropriate. It allows for policies to be responsive to local needs.
(2) As previously indicated, we do not support blanket exclusion tests/disqualifications that leave the decision maker with no discretion, particularly in the area of housing need.
(3) Following from that, were such a measure introduced then its application should be discretionary and subject to a review, if exercised, both initially, and on re-application at regular intervals within the disqualification period at regular intervals. The kind of review we have in mind is that which occurs when a decision is made that an applicant is neither eligible nor a qualifying person for accommodation (s 166 A (9) (c) Housing Act 1996). This proposal, as others made in this Paper, have the flavour of someone having speculated “ If something I consider wrong, were to happen then a law/provision must be made to prevent it”. We do not consider that is how laws or similar provisions should come into being.
QUESTION
Q25 – Should all members of a household be subject to a check for history of anti-social behaviour, rather than just the lead tenant?
RESPONSE
We refer to our response to Q24.
QUESTION
Q26 – The government is considering whether exemptions to the anti-social behaviour test should be made for victims of domestic abuse; or those with a condition or disability that was a relevant contributing factor to the anti-social behaviour. Are there any additional groups that should be considered for an exemption from this test?
RESPONSE
We refer to our response to Q24. In particular we refer to that part where we propose that the local authority have discretion whether or not to apply any such provision in individual cases. That is the approach we would prefer rather than exempted classes. We add that we acknowledge ASB is a serious problem in relation to housing and community relations generally, not just social housing. Members have appeared both for local authorities and defendant tenants in such cases. However, it is also the case that allegations are made that are racially motivated or motivated out of hostility to homosexual or trans people or out of clash of culture. The factual circumstances can vary widely which is why we prefer to discretionary approach.
Terrorism Test
QUESTION
Q29 – The government is proposing that an unspent conviction, including under the Terrorism Acts 2000 and 2006 (such as for membership of a proscribed terrorist organisation) should result in a permanent disqualification from accessing social housing, unless doing so would increase public safety risks. Do you agree with this proposal? If no, please explain.
RESPONSE
We do not intend to comment on this proposal particularly as it is unclear what evidential base there is for it.
Grounds for eviction (asb and terrorist offences) Test
QUESTION
Q32 – The government has committed to exploring a ‘three strikes and you’re out’ eviction expectation for all social landlords, meaning three proven instances of anti-social behaviour, accompanied by three warnings from a landlord, would result in eviction. How should a ‘strike’ be defined?
RESPONSE
We are not prepared to agree with this proposal in view of:
(1) the raft of measures already existing and referred to in the Consultation Paper available for curbing ASB and taking action against perpetrators
(2) the absence of evidence that adding to those measures would make those aims more achievable
(3) and because it seems to us that what is required is not additional laws but more vigorous application of the laws already in existence. Making this proposal implies that the current measures are not effective although that is not explicitly stated. However it is difficult to see how this proposal would be any more effective. We suspect that were local authorities asked, they would say that more could be done with more resources. It seems to us that should be the preferred route.
QUESTION
Q33 – Do you believe that a new ground for eviction should be introduced to ensure that those with unspent convictions for terrorism offences be evicted from social housing, unless doing so would increase public safety risk?
RESPONSE
We do not intend to comment on this proposal particularly as it is unclear what evidential base there is for it.
Fraudulent Declaration
QUESTION
Q34 – Do you agree that those who provide fraudulent information in social housing applications should be prevented from qualifying for a set period, in addition to any disqualification period that would have applied had they not made a false declaration? If yes, how long should this period be?
RESPONSE
We consider that this is a matter which should be left to local authorities to decide in their discretion i.e. whether to disqualify, for how long and which local authority areas e.g. any local authority could decide to disqualify an applicant who had given fraudulent information to any other local authority or England – wide. We also note the following criminal offence in Part 6 Housing Act 1996 “Allocation of Housing Accommodation” at s 171. What sentence was imposed could have an effect on the exercise of discretion.
171
False statements and withholding information.
(1) A person commits an offence if, in connection with the exercise by a local housing authority of their functions under this Part—
(a) he knowingly or recklessly makes a statement which is false in a material particular, or
(b) he knowingly withholds information which the authority have reasonably required him to give in connection with the exercise of those functions.
(2) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Applicants on Waiting List
QUESTION
Q38 – Should there be a limit on how many local housing authorities an applicant can apply to? If yes, please indicate the limit.
RESPONSE
We note that this issue appears for first time in this Paper in this question. There is no previous consideration to explain why this is considered to be an issue, indicating any evidence that there have been multiple applications, for what reason or how, if so, they have been dealt with by local authorities to justify any limit. In the absence of such consideration, we do not consider this matter should be pursued.
Public Sector Equality Duty
QUESTION
Q39 – Do you expect that any of the policies affecting social housing applicants would have a particular impact on those with a particular protected characteristic? If so, please give further detail on the relevant policy and its impact.
RESPONSE
The protected characteristics identified by s 149 (7) of the Equality Act 2010 include pregnancy and maternity, race, religion or belief, sex and sexual orientation. It can be anticipated that a significant proportion, at least, of applicants will share one or more of those characteristics. The local authority will, therefore, be obliged to comply with the Public Sector Equality Duty. This could be problematic, as, for example, the UK connection test and the local connection test involves treating refugees differently from other applicants with the result that a significant proportion of those so treated are more likely to share protected characteristics than those who are not. We note the Court of Appeal in R (Gulllu & Ward) v Hillingdon LBC ([2019] EWCA Civ 692, [2019] HLR 30, CA), found that a 10-year residence requirement unlawfully discriminated against refugees, who held the protected characteristic of race. Residence requirements have been held to be unlawfully discriminatory on the grounds of sex, in the case of survivors of domestic abuse R (HA) v Ealing LBC ([2015] EWHC 2375 (Admin)).
QUESTION
Q40 – Do you expect that any of the policies affecting social housing tenants would have a particular impact on those with a particular protected characteristic? If so, please give further detail on the relevant policy and its impact.
RESPONSE
The protected characteristics identified by s 149 (7) of the Equality Act 2010 include pregnancy and maternity, race, religion or belief, sex and sexual orientation. It can be assumed that a significant proportion, at least, of local authority tenants share one or more of those characteristics. The local authority is and will, therefore, be obliged to comply with the Public Sector Equality Duty. The Society does not consider it can take this aspect any further.