Birmingham's Social Housing Allocation: Eligibility, Application, and Process, Lecture notes of Law

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Birmingham Choice

Birmingham City Council Housing Allocation

Scheme

November 2021

Contents

• 1.0 OVERVIEW
  • 1.1.0 INTRODUCTION
  • 1.2.0 PURPOSE OF THIS DOCUMENT
  • 1.3.0 PRINCIPLES OF THIS SCHEME
  • 1.4.0 CONSULTATION
• 2.0 INFORMATION, APPLICATIONS AND DECISION-MAKING
  • 2.1.0 INFORMATION
  • 2.2.0 APPLICATIONS
  • 2.3.0 DECISION-MAKING
  • 2.4.0 REVIEWS
• 3.0 ELIGIBILITY AND QUALIFICATION
  • 3.1.0 ELIGIBILITY
  • 3.2.0 QUALIFICATION
  • 3.3.0 DETERMINING ELIGIBILITY AND QUALIFICATION
  • 3.4.0 NOTIFICATIONS OF DECISIONS AND RIGHT TO A REVIEW
  • 3.5.0 RE-APPLICATION
• 4.0 ALLOCATIONS
  • 4.1.0 ADOPTING THIS SCHEME
  • 4.2.0 DETERMINING PRIORITY FOR AN ALLOCATION FOR HOUSING
  • 4.3.0 LOCAL LETTINGS SCHEMES
  • 4.4. 0 AVOIDING DISCRIMINATION AND ENHANCING EQUALITY OF OPPORTUNITY
  • 4.5.0 BEST INTERESTS OF CHILDREN
  • 4.6.0 DISCRETION
• 5.0 BEING ALLOCATED A PROPERTY.................................................................................................
  • 5.1.0 CHOICE
• 6.0 OTHER GENERAL POINTS
• 7.0 OTHER ARRANGEMENTS
  • 7.1.0 DIRECT APPLICATIONS TO REGISTERED PROVIDERS
  • 7.2.0 NOMINATIONS
  • 7.3.0 TRANSFERS
  • 7.4.0 CONTRACTING-OUT
  • 7.5.0 COMPLAINTS, APPEALS AND LEGAL CHALLENGES
• RENTED HOUSING APPENDIX 1 – DETERMINING AN APPLICANTS’ ABILITY TO AFFORD AN ALLOCATION OF SOCIAL
• OVERCROWDING, UNDER-OCCUPANCY AND FOR AN ALLOCATION OF ACCOMMODATION APPENDIX 2 – DETERMINING AN APPLICANTS’ ENTITLEMENT TO BEDROOMS, FOR ASSESSING

The Local Authority intends to allocate homes in a fair, transparent, and effective way, that prioritises applicants who are most in need, is lawful and makes best use of the homes available. 1.2.2 This document explains how priority between applicants will be determined and the arrangements for making an offer of home owned by the Local Authority and for nominating applicants to private registered providers of social housing (“ Registered Providers ”), who own and/or manage social rented housing in the Local Authority area. 1.2.3 A copy of this document will be made available to any person who requests one. A summary is also available. A copy has been sent to the Regulator of Social Housing, the Housing Ombudsman, and the Local Government & Social Care Ombudsman. 1.2. 4 This Scheme has been framed with consideration of the housing requirements of current and future potential tenants. Most applicants will be afforded choice in the dwellings offered to them; in that they will be able to express a preference in respect of the available properties that meet their housing needs. 1.3.0 Principles of this Scheme 1.3.1 This Scheme has been formulated with regard to the law and regulatory requirements, including:

1. Housing Act 1985
2. Housing Act 1996
3. Homelessness Act 2002
4. Homeless Reduction Act 2017
5. Housing and Regeneration Act 2008
6. Localism Act 2011
7. Armed Forces Act 2006
8. Asylum and Immigration Act 1996
9. Immigration and Asylum Act 1999
10. Children Act 2004
11. Equality Act 2010
12. Data Protection Act 2018
13. European Union (Withdrawal Agreement) Act 2020
14. Statutory guidance: a. Allocation of accommodation: guidance for local authorities, June 2012, updated, September 2021 b. Providing social housing for local people, December 2013 c. Right to Move and social housing allocations, March 2015 d. Improving access to social housing for victims of domestic abuse, November 2018

e. Improving access to social housing for members of the Armed Forces, June 2020

15. The regulatory standards for registered providers of social housing in England: a. Tenancy Standard, published April 2012 1.3.2 Case law from the English and Welsh Courts has also been taken into consideration. 1.3.3 This Scheme only relates to the allocation of social rented housing in the Local Authority area, which extends to:
16. Affordable rent social housing.
17. General needs social housing.
18. Extra care social rented housing.
19. Affordable rent supported housing.
20. General needs supported housing (i.e. sheltered). 1.3.4 For the purpose of this Scheme, an “ allocation ” is defined as occurring when the Local Authority select an applicant to be a secure or introductory tenant of social rented housing held by the Local Authority, or nominates a person to be an assured tenant (encompassing fixed term and affordable tenancies) of social rented housing held by a Registered Provider, subject to certain exceptions that are set out in 1.3. below. 1.3.5 Actual entry by an applicant into a tenancy agreement for a particular property is beyond the scope of this Scheme which concerns the principles and procedures by which the selection of applicants for an allocation will be undertaken. The law requires Local Authorities and Registered Providers to publish rules and policies about how housing allocations will be made. Applicants should consult individual Registered Providers about their rules and policies concerning allocation of social rented housing. Copies of this allocation scheme are available from the Authority as described at the end of this document. 1.3.6 The main exceptions to the position set out above in 1.3.4 are as detailed below. An allocation of social rented housing will not occur in any of the following cases. The Local Authority and/or Registered Providers shall have their own rules and polices for these matters , which should be referenced for further details:
21. The granting of a tenancy that is not of the type specified in the legal definition of allocation, such as one without security of tenure (e.g. a ‘family intervention tenancy’, temporary accommodation provided to homeless households that are owed a duty of assistance, etc).
22. Granting a tenancy to a person who is currently and lawfully occupying a property held on a family intervention tenancy.
23. The vesting (by succession) of a periodic secure or introductory tenancy on the death of the current tenant.
24. The devolution of a fixed term secure tenancy on the death of a tenant.

the Local Authority website, or via another suitable form of communication), within a reasonable period of time, to bring to the attention of those likely to be affected by it: a. any alterations made to this Scheme. b. any subsequent alteration to this Scheme that would affect the relative priority of a large number of applicants; and c. any significant alteration to any associated procedures for administering this Scheme. 1.3.9 Elected Councillors of the Local Authority, are prohibited from making decisions about any individual allocation, pertaining to any accommodation situated in their electoral ward area, or any person who is resident in their electoral ward area. Elected Councillors may seek to obtain general information about the allocation of housing, can represent their constituents and discuss their cases with Local Authority Scheme administrators. Elected Councillors participate in making decisions about the overall content of this Scheme. Elected Councillors will consider whether the Local Authority’s Code of Conduct requires them to declare an interest before participating in such deliberations. If in any doubt, the advice of the Local Authority’s Monitoring Officer will be obtained. The Local Authority arranges for Elected Councillors to be provided with suitable training in these matters. 1.3.10 Copies of this document are made available by the Local Authority to any person who requests one. Electronic copies will be provided, copies in alternative formats will be considered on an individual basis. People will be informed about their rights to information, advice and assistance concerning this Scheme. For further information, see section 2 of this document. 1.3.11 People will not be able to join the Scheme if they are either not eligible for an allocation of social housing, and/or are of a class of person matching the disqualification criterion set out in this document. For further information, see section 3 of this document. 1.3.12 Applicants will be prioritised for an allocation by Band. Within bands, applicants will be prioritised by waiting time, from the date that their application was placed in the current band that they have been afforded, For further information, see section 4 of this document. 1.3.13 Applicants will be allowed to express a preference for the homes available to let. This will be subject to certain limitations. Applicants will be penalised for refusing reasonable offers. For further information, see section 5 of this document. 1.4.0 Consultation 1.4.1 The Local Authority carried out consultation on how it intended to prioritise the allocation of social rented housing. Applicants who were members of this Scheme

and other people, such as advocates for people from protected characteristics groups and Registered Providers, etc, were consulted before finalising this Scheme. 1.4.2 The Local Authority has published a report on the consultation of this Scheme, on the outcomes of the consultation and any changes that have been made to the scheme. 1.4.3 A variety of consultation methods, such as focus groups and online surveys, were used to solicit opinions. The Local Authority has taken account of the needs of specific groups, such as persons with a disability, or learning and support need. An Equality Impact Assessment has been completed in conjunction with adopting this Scheme. 1.4.4 This Scheme will be reviewed by the Local Authority at least every two years (and more often if required, for example due to legislative or regulatory changes) in conjunction with applicants and other appropriate persons or organisations. 1.4.5 Any major changes to this Scheme that will affect the relative priority of a large number of people have been communicated in writing (using email, letter or notification via the Scheme or Local Authority website) to potential applicants that might be affected.

have difficulty in making an application to join the Scheme. This assistance will include (this list is not intended to be exhaustive):

1. Help to complete any form that might exist
2. Explaining what evidence might be required for the Local Authority determine any eligibility and qualification criterion that might be in force and help with collecting this evidence for assessment
3. Explaining what evidence might be required to determine the degree of priority to be given to an application and help with collecting this evidence for assessment
4. Explaining what evidence might be required to help determine the type of property that should be allocated and help with collecting this evidence for assessment 2.1. 6 The Local Authority will provide every applicant with the following general information, accompanied by a free summary of this document:
5. How their application is likely to be treated.
6. Whether or not they have been accepted as being eligible for an allocation or any reasons for being determined as ineligible.
7. Whether or not they qualify to join the Scheme and the reasons for being disqualified.
8. The type of property they are likely to be allocated and the number of bedrooms they might be entitled to have.
9. The method that will be used in assessing their needs.
10. The number of other applicants with equal or greater priority.
11. An assessment of the likely time that they will have to wait to receive an offer by reference to average waiting time or the number of allocations of similar properties, based on data available for the most recent 12 - month period.
12. Any facts about the applicant’s case which have been or will be taken account of when making decisions.
13. The right to request a review of any decision that they are not eligible and/or do not qualify to join the Scheme or concerning an allocation of or nomination to social rented housing (see section 2.4.1 for further details).
14. A written review decision, where a review has been requested along with the reasons for that decision. 2.1. 7 The Local Authority will advise all persons that equalities information will be collected, to enable a better understanding of people’s housing needs and to ensure that no one is discriminated against as a result of the way this Scheme has been framed, or during the administration of it. People will be informed either orally or in writing as to how such data will be used, handled, and stored. 2.1. 8 The Local Authority is subject to the information disclosure requirements of the Data Protection Act 2018. The administration of this Scheme will ensure compliance with this legislation. For further information please reference the Local Authority’s Data Protection Policy.

2.1. 9 All persons making an application to join the Scheme, have the right to confidentiality. An application will not be divulged to any other party without an applicant’s consent unless it gives rise to a safeguarding concern. An applicant will be asked to give consent to share relevant details of their application, with relevant third-party organisations, such as public authorities, registered providers, voluntary organisations, and others. Where consent is given, this only extends to those who can provide evidence that can help to determine an application and/or who need to know to process an allocation (e.g. employees of health, social care, criminal justice, social housing organisations, etc). For further information, please refer to the Local Authority’s Information Sharing Protocol. Where consent is not given, this may affect the ability of the local authority to process an application. The authority may not be able to process an application if it is unable to make the necessary enquiries due to a failure to of refusal of consent. 2.2.0 Applications 2.2.1 Each applicant will be provided with a user account that they will be able to securely log into via the Scheme website. The Local Authority will primarily communicate with applicants via their user account, to provide them with information and advice, give assistance, issue warnings about fraud, seek further evidence or clarify matters relating to evidence already submitted, make notifications as whether someone is eligible and qualifies to join the Scheme, make an offer of an allocation, confirm whether an applicant wish to accept an offer of an allocation and other matters relating to their application. Whenever necessary, the Local Authority will also communicate with applicants via other means, such as email, telephone/videotelephone, letter/leaflet or in-person, etc, such as when they are having difficulty using their Scheme user account, this includes where a person with a protected characteristic, needs or asks for an alternative. 2.2.2 All applications must be made using the prescribed online form published by the Local Authority. Whenever necessary, the Local Authority will also arrange for applications to be completed by other means, such as when an applicant is having difficulty completing the prescribed online form, this includes where a person with a protected characteristic, needs or asks for an alternative.. Applications can only be made by a sole individual, all other persons who might presently live with an applicant can feature as usual household members. Applications are welcomed from persons who live at two separate addresses, but who wish to live together at one single address, one person will have to feature as the applicant with the other person(s) featuring as usual a household member. Anyone who might usually reside with an applicant, or who might reasonably be expected to reside with an applicant, can feature as part of the application. A usual household member is a person who normally lives with an applicant. People who usually live with the applicant but are temporarily absent due to circumstances beyond their control (e.g. they are in prison, care of a local authority, staying in hospital, away serving in the armed forces, etc), are also considered a usual household member. People who do

determining an application, (ii) collecting evidence to determine eligibility and qualification for an allocation, (iii) the degree of choice they are entitled to and (iv) how applicants are prioritised for an allocation) will be provided free of charge to any person who is likely to have difficulty in making an application (e.g. due to mental or physical impairment, or because of any other special characteristic) to join the Scheme. This assistance will be extended to those who might require help to express a preference for an available property to let. The Local Authority is subject to the Equality Act 2010 , which has been duly considered when formulating this Scheme (and any associated rules, procedures, policies and processes). A separate Equality Impact Assessment has been completed and copies can be requested from the Local Authority or downloaded from the Scheme website. The Equality Impact Assessment has identified any potential impact on people with a protected characteristic, showing these as positive, negative, or negligible, plus includes actions to mitigate any such negative impacts. This Scheme aligns with the Local Authority’s Strategic Equalities Plan. To ensure compliance with Equality Act duties, reasonable alternative arrangements will be made by the Local Authority and/or Registered Providers for each individual applicant and property, including:

1. A mechanism (e.g. assistance provided via the Scheme website, phone, or in person, or by any other necessary means) for providing support in making applications.
2. A mechanism (e.g. a specific question on the online application) to identify the requirements of disabled applicants.
3. Informing an applicant of a property’s accessible features (e.g. via the Scheme website, or by email or letter, on the phone or in person, or by any other necessary means). Whenever properties with accessible features are advertised via the Scheme website, they will be marked as such.
4. A mechanism (e.g. at the stage of offer or nomination) to allow extra time, (of a duration relevant to the circumstances of any given case) for disabled applicants
5. A mechanism (e.g. at the stage of offer or nomination) to allow extra time, (of a duration relevant to the circumstances of any given case) for disabled applicants if they need it to accept an offer. 2.2. 7 The Local Authority will process applications; this will involve a preliminary assessment. Firstly, consideration will be given to whether the applicant is eligible for social rented housing in accordance with the law. It will then be determined if an applicant qualifies to join the Scheme under the terms set out in this document. For further information on eligibility and qualification, please see section 3 of this document. Detailed scrutiny will take place when an applicant is due to be allocated or nominated for a particular property, to determine whether the applicant:
6. Is still eligible.
7. Is still a qualifying person.
8. Meets any specific lettings criteria for the particular property (e.g. due to a Local Lettings Scheme being in force (see section 4.3.0 for further details), or the having accessible features suitable for persons with a disability).

4. Has a household size that matches any size criteria for the property (see section 5.3.4 for further details). 2.2. 8 The Local Authority will process applications within a reasonable period of time (relative to the particulars of any given application) after all documentation has been received from an applicant. Upon receipt of an application, the Local Authority will inform the applicant of its complaints procedure and how they may seek the help of the Local Government & Social Care Ombudsman. 2.2. 9 The Local Authority will accept applications from current tenants of Birmingham City Council (including tenants of Registered Providers), for transfers (“ Transfer Applicants ”) to alternative social rented housing available in Birmingham. Such applicants have the right to:
5. Make applications.
6. Have their applications considered.
7. Be notified as to their rights to information and review.
8. Confidentiality of the fact of their application. 2.2. 10 The Local Authority will initially treat Transfer Applicants in the same way as all other applicants, except that there will no inquiries made about eligibility. This is because the law dictates that all current tenants of social housing are eligible for a further allocation of social housing accommodation regardless of their immigration or habitual residence status. Transfer Applicants will be prioritised in the same way as new applicants (e.g. by housing need and then date of banding. Transfer Applicants will not be offered an allocation that would result in them under- occupying the dwelling against the Bedroom Standard, being overcrowded by the Bedroom Standard or being unable to afford rental or service charges at the date an allocation or nomination is made. As a general rule, allocations will be made so that a property is fully occupied. If this is not possible, under-occupation will be considered, subject to an affordability assessment completed at the same time an offer is made, but prior to a letting being agreed. Transfer Applicants will be required to satisfy the qualification criterion for this Scheme set out in section 3. 2.2.1 1 The Local Authority will handle applications as per the provisions set out in this document. Any application which gives the Local Authority a reason to believe a person may be homeless or threatened with homelessness, will trigger inquiries as to what duty of assistance, if any, is owed under Housing Act 1996, Part 7 (as amended). Such inquiries and any subsequent assistance a person might be entitled, to are outside the scope of this Scheme. The Local Authority has separate arrangements in force to administer public law homelessness duties. Contact details for which are as follows
9. Housing Solutions and Support Service
10. New Aston House, Newtown Shopping Centre, Newtown, Birmingham, B 2SW
11. 0121 303 7410

3. Confirm whether an applicant is qualifying or is disqualified for an allocation of social rented housing, in accordance with the criteria set out in section 3.2.0: i. If the applicant has applied on the grounds of being homeless or owed a homelessness duty, ascertain whether the applicant has already made an application for homelessness assistance. ii. If yes, access the Local Authority’s homelessness database for information relevant to the applicant’s application for an allocation of social rented housing. iii. If no, subject to the applicant’s acquiescence, arrange for the applicant to make an application for homelessness assistance and share any information from the applicant’s application for an allocation of social rented housing that might be relevant to their application for homelessness assistance. iv. If an applicant has applied on the grounds that their existing accommodation is overcrowded, follow the steps set out in Appendix 2, section 2.1.0.
4. Confirm an applicant’s priority for an allocation of social rented housing, in accordance with the criteria set out in section 4.2.0.
5. Confirm the best interests of any children that might need to be taken into account, promoted and/or safeguarded, in accordance with the arrangements set out in section 4.5.0.
6. Confirm whether an applicant’s; circumstances warrant the exercise of any discretion, in accordance with the arrangements set out in section 4.6.0.
7. Confirm the degree of choice an applicant is entitled to express, in accordance with the arrangements set out in section 5.1.0.
8. Confirm what would constitute a reasonable offer of accommodation, in accordance with the criteria set out in section 5.16. i. Affordability will be determined in accordance with the criteria set out in Appendix 1. ii. Bedroom entitlement will be determined in accordance with the criteria set out in Appendix 2, section 2.2.0. 2.2.15 Subsequent to completing the steps set out in section 2.2.14, the Local Authority will inform an applicant:
9. Whether they are or are not eligible for an allocation of social rented housing and of their right to request a review of this decision, in accordance with section 2.4.0.
10. Whether they are qualifying or disqualified from joining the Scheme and of their right to request a review of this decision, in accordance with section 2.4.0.
11. The priority they have been afforded (e.g. the Band they have been placed in) for an allocation of social rented housing and of their right to request a review of this decision, in accordance with section 2.4.0. 4.The account that has been taken of the need to safeguard and/or promote the best interests of any children. 5.Whether or not their circumstances warrants the exercise of any discretion.

6. The degree of choice they will be entitled to express.
7. The extent of their household and the type of social rented housing they will be considered for and of their right to request a review of this decision, in accordance with section 2.4. 2.2.16 The Local Authority will then command the database to allow an applicant to express choice relevant to them and their households needs. 2.2.17 The above steps will be repeated whenever the applicant notifies the Local Authority of a change of circumstances and also at the point the Local Authority will make an offer of social rented housing to an applicant. 2.3.0 Decision-Making 2.3.1 The Local Authority will notify applicants in writing of any decisions about their applications, regardless of whether they are adverse or successful. Where the notification confirms a successful decision, applicants will also be told when realistically they might be made an allocation of social rented housing. 2.3.2 Where the notification confirms a decision that an applicant is ineligible for an allocation of social rented housing or disqualified from joining the Scheme, an applicant will be given reasons for the decision based on the relevant facts of the case. Additional arrangements will be made for applicants who might have difficulty understanding the implications of the decision, to be informed orally (e.g. via telephone/videotelephone or in person). Copies of all adverse decisions will be made available for a reasonable period of time for collection by the applicant, or by someone on their behalf, at the main offices of the Local Authority, when an applicant has not does not have an active user account on the Scheme website nor has provided either an email address or postal address. 2.3.3 Decisions about applications made by employees of the Local Authority, will be made in accordance with the rules set out in this document. However, all such decisions will be verified via a series of checks by a designated senior officer, who has responsibility for administering housing allocation functions for the Local Authority. Applicants will be asked at the point of making an application, whether they (or anyone who lives with them or might reasonably be expected to live with them) are an employee of the Local Authority. Where a person affirms on their application that they (or a usual household member), is an employee of the Local Authority, they will be notified of the process to deal with any conflicts of interest which will involve a senior officer processing the application and ensuring that it is dealt with impartially without any reference to the relevant employee. The same principle will be applied to relatives of persons who are employed by the Local Authority.

Scheme. If an applicant is dissatisfied with how their application and any subsequent complaint has been handled by the Local Authority, they will be informed of their right to make a claim of maladministration to the Local Government & Social Care Ombudsman.

3.0 Eligibility and Qualification 3.1.0 Eligibility 3.1.1 The following classes of persons, subject to the satisfying a habitual residency test (see section 3.1. 6 ), will be eligible to join the Scheme:

1. British citizens (constituting the nations of England, Scotland and Wales).
2. Commonwealth citizens with a right of abode in the UK immediately before 01 January 1983 who have remained commonwealth citizens throughout (excluding non-British citizens from Pakistan and South Africa, but inclusive of citizens from Gambia and Zimbabwe).
3. Irish citizens (constituting the nations of Northern Ireland and Republic of Ireland)
4. EEA Nationals (other than those from Ireland) and their family members, who a. have acquired limited leave to enter and remain in the UK b. were frontier working before 31 December 2020, or c. are lawfully residing in the UK by 31 December 2020, but still have to apply to, or acquire status under the EU Settlement Scheme before the deadline of 30 June 2021, and are covered by the “Grace Period statutory instrument”
5. Persons exempt from immigration control (e.g. diplomats and their family members based in the UK and some military personnel).
6. Persons granted refugee status by the UK Government.
7. Persons granted exceptional or limited leave to enter or remain in the UK with condition that they and any dependents have resource to public funds (e.g. humanitarian or compassionate circumstances).
8. Persons with current leave to enter or remain in the UK with no condition or limitation, and who are habitually resident in the UK, The Channel Islands, the Isle of Man or the Republic or Irelands (defined as the Common Travel Area) (a person whose maintenance and accommodation is being sponsored must be resident in the Common Travel Area for five years since date of entry or date of sponsorship, unless the sponsor has died).
9. Persons who have humanitarian protection granted under the Immigration Rules (e.g. a person whose asylum application has failed, but they face real risk of harm if they returned to their state of origin).
10. Persons who are Afghan citizens with limited leave to enter or remain in the United Kingdom, who are habitually resident in the Common Travel Area.
11. Persons who are habitually resident in the Common Travel Area, who have Calais leave to remain under the Immigration Rules
12. Persons who are habitually resident in the Common Travel Area, who have been granted leave to remain as a stateless person under Immigration Act 1971