Council to amend unlawful housing allocation banding process

8 Apr 2021 | William Ford

For the last 8 years Brent Council has stopped the majority of homeless applicants from bidding for rehousing, treating them as ‘no priority’. Brent have now agreed to change this policy.

The Policy

Every council must have a published policy for how it allocates tenancies to those who apply for rehousing. Brent Council published its ‘Allocations Scheme’ for this in 2013 (with some amendments in November 2014 and June 2019). Brent’s Scheme places applicants in priority bands D to A, where A is the highest priority. People in higher priority bands will out-bid people in lower priority bands who express an interest in the same property on Brent’s housing register. Band D is the lowest and it is for those who Brent says have ‘no priority’. People in band D are not allowed to bid at all.

Brent’s Scheme says homeless applicants have ‘no priority’ and will be placed in band D, so that they cannot bid. The only exception to this is if Brent has accepted a ‘main housing duty’ towards a homelessness applicant, in which case they are placed in either band C or A.

What does the ‘main housing duty’ mean?

In order to have a ‘main housing duty’ accepted under homelessness law, you have to go through the long process of making a homelessness application to Brent. You also need to fulfil certain criteria. If Brent decides you do not have a ‘priority need’ (e.g. you do not have a dependent child or a serious health condition that makes you very vulnerable), or that you have made yourself ‘intentionally homeless’, then you would not qualify for a ‘main housing duty’. It takes at least 8 weeks for Brent to make a decision about whether they owe you a ‘main housing duty’, but often takes longer.

The ‘main housing duty’ basically means that Brent has to continue to provide you with temporary accommodation until you secure suitable long-term accommodation.

Why is the Policy unlawful?

The law gives the council a lot of freedom to choose the rules in its Allocations Scheme and how to prioritise different applicants. However, the law does require the council to give ‘reasonable preference’ to certain categories of people, including people who are homeless.

“Homeless” does not just mean living on the street. The legal definition includes anyone who:

  • Does not have accommodation they have a right to live in (e.g. by permission, by a tenancy, or by home ownership);
  • Cannot access their accommodation; or
  • Does not have accommodation that would be reasonable for them to continue to live in (e.g. because of domestic violence or if the property is in such a poor state to be uninhabitable).

The law says Brent has to give ‘reasonable preference’ to homeless people even if they are not owed the ‘main housing duty’. This means that Brent has been unlawfully denying homeless applicants who are waiting for a final decision on their homelessness applications, or who do not fulfil the criteria for a ‘main housing duty’, their right to bid for rehousing. What is most concerning is that this policy appears to have been in place for 8 years and is likely to have negatively affected hundreds if not thousands of homeless applicants over this time.

Brent’s agreement to change the Policy

Sam O’Flaherty at Osbornes wrote to Brent’s legal department on 11th March 2021 requiring them to change their scheme to allow all homeless people to bid and be given ‘reasonable preference’. We also asked Brent to ensure that our homeless client would be given reasonable preference, at least in band C, whilst Brent amended their scheme.

Brent’s legal team replied on 26th March 2021 as follows:

The Council has considered the Claimant’s exceptional circumstances, as outlined in the pre-action protocol letter of 11 March 2021 and has decided that it would be appropriate for the Claimant’s case to be referred to the Operational Director for him to exercise his discretionary powers under 12.22 of the allocation scheme to ensure that she is awarded reasonable preference in accordance with s.166A of the Housing Act 1996. Her case will be referred to him with the recommendation that she be awarded Band C from the date of her initial application on 17/02/2021.

In respect the request to review and amend the Allocation Scheme, the Council is already in the process of reviewing the scheme with a view to making amendments during the course of this year. It is not possible to set out the timescales at this stage, as finalising and publishing the scheme, will depend on consultation with stakeholders, an Equality Impact Assessment and Cabinet Approval of the changes.

In other words, Brent has effectively accepted that its scheme is unlawful and that it will be changed this year. In the meantime, if you are homeless and have been placed in band D by Brent, you should ask them to make a referral to the Operational Director to place you in band C until the scheme has been amended.

If you would like to discuss a housing matter with our litigation team please call 020 7485 8811 or complete an online enquiry form.

Related Services:

 

 

Share this article

Contact

Contact us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you






    More from WilliamVIEW ALL

    1. 14.11.2022

      Housing allocation case questions lawfulness of council’s...

      Until February 2022, the social housing allocation scheme for the London Borough of Newham allowed people who lived outside the borough...

      Read more
    2. 5.8.2022

      Legacy benefits uplift: appeal granted by Court of...

      On 18 February 2022 the High Court dismissed the case brought by Osbornes on behalf of 4 claimants challenging the governments failure to...

      Read more
    3. 5.11.2021

      Council overturns unlawful housing policy

      Homeless teenager claims victory for more than 1,200 homeless people after forcing council to overturn unlawful housing policy A homeless teenager...

      Read more
    4. shoreditch london
      3.9.2021

      Homeless Teenager takes London Council to High Court

      A homeless teenager is taking a London council to the High Court for ‘unlawfully’ banning hundreds of homeless people from...

      Read more
    5. 19.8.2021

      Housing Disrepair Scandal in South London

      Following an investigation by ITV nearly 500 homes in the Eastfields Estate in Mitcham, south London, owned by the housing association...

      Read more
    6. 29.4.2021

      High Court challenge the denial of benefit increases...

      The High Court is to decide whether it was lawful of the Government not to give nearly 2million people on...

      Read more
    7. 29.1.2021

      What does the national lockdown mean for possession...

      The coronavirus pandemic has caused disruption to all elements of life, and possession proceedings are no exception. The number of...

      Read more
    8. 23.12.2020

      EU Nationals with Pre-Settled Status entitled to benefits...

      Court Judgment means EU Nationals with Pre-Settled Status can access benefits and housing On 18 December 2020 the Court of Appeal handed...

      Read more
    9. 22.12.2020

      Young mother secures accommodation after illegal evictions during...

      Here at Osbornes we have seen illegal evictions on the increase during this global pandemic. Osbornes have been advising many...

      Read more
    10. 22.12.2020

      Osbornes applying to Supreme Court in housing possession...

      In the case of Gateway Housing Association –v- Begum (2) the Court of Appeal recently decided that a tenant must leave...

      Read more
    11. london apartments
      22.12.2020

      Housing disrepair issues resolved after three years

      Osbornes were instructed on behalf of a disabled tenant who had been decanted from her temporary accommodation for some three...

      Read more
    12. 22.12.2020

      Eviction from home of vulnerable man during lockdown...

      Osbornes were instructed just before the lockdown to prevent the eviction of a vulnerable man with capacity issues. He had...

      Read more
    13. 24.11.2020

      Is the delay in the Renters Reform Bill...

      There have been issues tenants have faced for a long time before pandemic; namely no fault evictions and the other...

      Read more
    14. 20.11.2020

      Up Up and away to the First Tier...

      This year we assisted in written representations for a welfare benefit case in the Upper Tribunal. This is a Housing...

      Read more
    15. 20.11.2020

      You are homeless because you are in shared...

      It is well established that shared facilities are not suitable for families with children as long term accommodation. The client...

      Read more
    16. 9.11.2020

      Case Summary: Private Tenant affected by leaks settles...

      Our client had a private sector tenancy for a flat located in a block owned by a local authority. Our...

      Read more
    17. 27.5.2020

      I am vulnerable and homeless but the Council...

      Homelessness law and procedure can be very complicated. We hope this blog gives you some helpful pointers but it is...

      Read more
    18. 4.5.2020

      No recourse to public funds in the time...

      Anyone working in the field of social welfare law will be familiar with the term “no recourse to public funds”....

      Read more
    19. 29.4.2020

      Case news: Housing benefit decision addresses issue of...

      The background You might be forgiven for thinking that the question of whether a course is full time or part...

      Read more
    20. 17.4.2020

      Harassment and Unlawful Evictions of Tenants during COVID-19...

      At these hugely challenging times, I thought it would be helpful to provide some insight for tenants facing harassment and...

      Read more
    21. 31.3.2020

      The Coronavirus Act 2020 and Social Care

      The Coronavirus Act 2020 (“the Act”) came into law on 25 March 2020 and passed sweeping emergency legislation that is unprecedented in peacetime....

      Read more
    22. london house
      30.3.2020

      I have a disrepair issue can I withhold...

      Withholding rent is not your best course of action. I see the logic in using the non-payment of rent as...

      Read more
    23. 27.3.2020

      COVID-19 – the impact on landlords of residential properties...

      From the 26th March 2020, landlords will have to give their tenants 3 months’ notice if they intend to seek possession compared...

      Read more
    24. 26.3.2020

      British child living with her mother in the...

      In AH v Secretary of State for Work and Pensions [2020] UKUT 53 (AAC), the claimant and her parents are British citizens. ...

      Read more

    VIEW ALL