Helen Tucker, litigation partner in the social housing team at Anthony Collins, warns that the Government's social housing reforms could lead to more litigation.
The Government’s proposed reforms to overhaul social housing allocations would almost certainly lead to a sharp rise in homelessness and an increased risk of litigation.
Much attention has been given to the specific proposal that would require those applying for social housing to demonstrate a ‘close connection’ with their local area and the UK – a policy that has been labelled ‘British workers for British homes’. Despite the controversy surrounding this particular proposal, one wonders how it differs from the existing ‘right to rent’ restrictions. Social landlords have, unsurprisingly, not been positive in their response.
Some of the other proposed reforms have received far less attention but are of interest. The ‘terrorism test’ will impact a tiny number of people. It brings to mind when the new ground for possession for riot-related offences committed in any location was introduced after the last serious riots. Has it ever been used since?
The anti-social behaviour test covers those with unspent convictions for criminal anti-social behaviour (ASB), as well as those who have faced civil sanctions for ASB. Both could be disqualified from social housing for a period of up to five years. The ‘three strikes and you’re out’ test would apply to social housing tenants who are found to have caused anti-social behaviour repeatedly.
It seems the longest exclusions would be for criminal ASB, with less time for civil ASB, such as breach of a civil ASB injunction or where a closure order is in place. A small number of exclusions to the eligibility criteria for social housing allocations are proposed. For example, exclusions could apply in situations where an anti-social behaviour sanction is breached due to domestic abuse or there are other mitigating factors related to the disability of the tenant or a member of their household. Currently, most anti-social behaviour possession claims which are defended raise a disability defence. If a tenant is not only going to be evicted for ASB but also excluded from any social rehousing at all, then landlords can perhaps anticipate facing many more cases being defended.
At a time when mental health and social care services are stretched to the limit, support for tenants and families with complex needs is much reduced and really hard to engage. Tighter tests with few exemptions are pretty obviously going to lead to more street homelessness. There is also the very real prospect of more costly and time-consuming appeals and judicial reviews of local authority decisions about how they apply the exemptions.
In summary, all social landlords will no doubt want to scrutinise the detail and submit detailed responses to the consultation by the 26th March. Restricting local authority discretion on homelessness decisions is likely to exacerbate the worsening homelessness crisis as well as lead to more litigation.
