Blog post by Liz Davies KC of the Garden Court Housing Team.
The Department for Levelling Up, Housing and Communities (DLUHC) consulted between January and March 2024 on proposals to change the eligibility criteria for applicants wishing to apply for an allocation of social housing from local authorities in England. The consultation was publicised by DLUHC as prioritising “British homes for British workers”, an ugly phrase reflecting the narrative that immigration is squeezing public services.
The “Consultation on reforms to social housing allocations” proposed that a person cannot apply to a local housing authority’s allocation scheme (colloquially, the “waiting list” for council and housing association houses) without first passing a “UK connection test”. British citizens, Irish citizens, and EEA nationals with equal treatment rights would pass that test. Other people would have to demonstrate lawful residence in the UK for ten years before they could apply to go on the scheme. There may be exemptions for refugees who arrived through the Afghan and Ukraine schemes.
There are already restrictions on who can apply for an allocation. Asylum seekers, anyone unlawfully in the UK and those with a No Recourse to Public Funds (NRPF) condition on their leave are not eligible. DLUHC is proposing to require lawfully resident foreign nationals, who are entitled to work, who pay taxes and can claim benefits, to wait ten years before they can apply to go on a waiting list for social housing. This consultation both promotes and responds to the myth that social housing is disproportionately allocated to immigrants. A myth not supported by the official statistics: 90% of new lettings are to UK nationals, 4% to EEA nationals, and the remaining 6% to applicants with other nationalities [1].
This will predominantly affect refugees, who have been granted asylum and therefore have the right to equal treatment with British citizens. Nevertheless, they will be required to wait ten years before they can even apply for an allocation. As is well known, admission onto the allocation scheme does not rapidly produce an offer of social housing. Whilst a bare majority of new tenants (58%) waited less than a year before they obtained a tenancy in 2022 – 2023, 9% were on the waiting list for five years or more [2].
Others affected will be those who succeed in having their NRPF conditions lifted, or are granted leave without a NRPF condition (such as under Domestic Violence Indefinite Leave to Remain). Anyone who is currently on an allocation scheme, and becomes ineligible under these proposals, will be removed from the scheme and have to wait until she or he has completed their ten years’ lawful residence before they can re-apply.
The consultation document presents no evidence that the presence of those who are not British citizens waiting for an allocation of social housing is problematic. The opposite is the case: the people caught by these proposals will be eligible for homelessness assistance. If local housing authorities cannot put them onto their allocation schemes, then they will either be trapped in temporary accommodation for up to ten years, or they will be given private rented offers (which may, or may not, last for ten years). This proposal will lead to further costs in temporary accommodation, whilst households live in insecure and often poor conditions.
The consultation also contains proposals to make existing qualification criteria mandatory. Currently, local housing authorities can set what criteria they choose for applicants to qualify for their allocation schemes. Many local housing authorities set criteria requiring a local connection, no anti-social behaviour history and/or maximum income levels. Those are all lawful, so long as they do not breach the Equality Act 2010 [3].
DLUHC proposes mandatory qualification criteria, which all local housing authorities in England will be required to apply. It will comprise of a two year local connection test, a maximum income level, an anti-social behaviour test, and a prohibition on allocation to those with certain terrorist offences. This is a reversion away from the principles of the Localism Act 2011 (introduced by Coalition government), which removed the one mandatory qualification criterion of anti-social behaviour and permitted local housing authorities to apply their own criteria. As with the eligibility criteria, it is unclear which problem DLUHC thinks it is addressing. These criteria is already widely operated by local housing authorities without significant criticism.
It seems that secondary legislation may shortly be introduced to implement the proposals in the consultation document. It is impossible not to think that this is part of a Conservative election campaign, allowing them falsely to claim that they protect social housing from immigrants. The proposals have been widely opposed. 16 housing organisations and campaigns, including the Local Government Association and other social housing providers, signed a letter to Secretary of State, Michael Gove MP, on 26 January 2024. They said: “[i]mposing extended qualification periods before people can even get on the housing register is likely to force more people into homelessness. If the government’s main concern is to increase the availability of social lettings, it could achieve this far more effectively by building more social housing.” Gove replied on 26 February 2024, acknowledging that those caught by the proposed eligibility criteria would either remain in the private rented sector or by accommodated through homelessness duties.
There are real concerns about whether any regulations implementing these proposals could be compatible with the Equality Act 2010, or other non-discrimination provisions. The bigger political concern is the government’s preparedness to engage in dog-whistling rhetoric, setting up migrants as the problem instead of acknowledging that the crisis in social housing (and housing more generally) caused by years of diminution of social housing stock.
[1] DLUHC Social housing lettings in England Tenants April 2022 – March 2023: Nationality of lead tenant by type of new social housing letting 2022/2023, Table 3e: Social housing lettings in England, tenants: April 2022 to March 2023 - GOV.UK
[2] DLUHC Social housing lettings in England Tenants April 2022 – March 2023: Social housing lettings in England, tenants: April 2022 to March 2023 - GOV.UK
[3] See R (Gullu & Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692, [2019] HLR 30, CA.
