CHAPTER ONE – THE APPLICATION OF PART 6 OF THE HOUSING ACT 1996
Local housing authorities
As set out in the introduction to this book, Part 6 applies to local housing authorities who “shall comply” with it.[1]
When does Part 6 not apply to an allocation of social housing?
A housing allocation scheme decides who is eligible for social housing and the condition applicants are required to meet. Part 6 of the Housing Act 1996, however, sets out some parameters as to the types of allocation that Part 6 applies to. Importantly, the provisions within Part 6 do not apply in the following circumstances.
Part 6 does not apply to a person who is already: (a) a secure or introductory tenant[2] of a local authority, or, (b) an assured tenant in relation to accommodation held by a private registered provider of social housing[3] (“PRPSH”) or a registered social landlord[4] (“RSL”) unless:
- the allocation involves a transfer of housing accommodation for that person,
- the application for the transfer is made at the request of that person, and
- the local housing authority is satisfied that the person is to be given reasonable preference under section 166A(3), Housing Act 1996.[5]
This means that in the circumstances described above, any application to transfer to other accommodation by an existing secure, introductory or assured tenant of a local authority or PRPSH/RSL, as the case may be, where the tenant has a reasonable preference for an allocation, must be treated in the same way as any allocation under Part 6 of the Housing Act 1996. Reasonable preference will be discussed later in this book.
As confirmed by paragraph 1.6 of the statutory guidance for local authorities, this means that a local housing authority can retain flexibility in setting policies that deal with all other types of transfer. This will include circumstances where a local housing authority offers a management transfer (because such a transfer is initiated by the local housing authority rather than the tenant it would fall outside of the scope of section 159(4B) of the Housing Act 1996).[6]
A management transfer, sometimes referred to as a management move, allows someone to be allocated a property outside the allocation scheme despite the fact there may be others on the waiting list that would qualify for such an allocation. Local housing authorities will have policies dealing with circumstances within which management transfers can be considered and/or made. Such circumstances may include moving tenants where they, or their household, have particular needs arising from a disability. It may also include moving tenants where they, or their households, are at a risk of violence, for example, where someone is at risk from gang violence. In addition, whilst a local housing authority should take account of situations involving domestic abuse when creating its housing allocations scheme, management transfers, which would not be a Part 6 allocation, are also used where a tenant, or a member of their household, has been subjected to domestic abuse. A decision not to accommodate on the basis of a management transfer could be the subject of a claim for judicial review: see, for example, R (on the application of TRX) v Network Homes Ltd [2022] EWHC 456 (Admin); [2023]
HLR 6.
Another common circumstance which will not be a Part 6 allocation is where a local housing authority has to temporarily decant (i.e. move someone out of their home on a temporary basis) a tenant and their household to do repairs.[7] Such a temporary move should mean that the tenant and their household move back into their home one works are carried out. Again, local authorities are likely to have policies and procedures in place for temporary moves due to disrepair.
The flexibility, provided because of how Part 6 operates, allows local housing authorities to decide how best to manage their social housing stock and respond to urgent circumstances of need. This is important when there are huge pressures on social housing and is something local authorities are best placed to do.[8]
Part 6 of the Housing Act 1996 will also not apply where an introductory tenancy becomes secure following the end of the introductory trial period or any trial period extended in accordance with section 125A of the Housing Act 1996[9] (a trial period can be extended by 6 months if certain conditions are met). So long as any trial period is not extended, the duration of an introductory trial period is the period of 12 months (or one year) starting from the date on which the tenancy was entered into or the date, if such a date is later, on which a tenant was entitled to possession under the tenancy. Being entitled to possession is likely to be the date upon which a tenant can move into a property.[10]
Further, Part 6 will not apply where a secure or introductory tenancy:
(a) has been succeeded to following the death of the tenant with the tenancy consequently vesting in the successor under section 89 of the Housing Act 1985 (secure tenancy) or section 133 of the Housing Act 1996 (introductory tenancy);[11]
(b) is assigned (i.e. transferred) to a person who would be qualified to succeed the secure or introductory tenant if the tenant had died immediately before the assignment; or
(c) vests (i.e. given to someone else) or is otherwise disposed of in pursuance of:
(i) a property adjustment order in connection with matrimonial proceedings under section 24 of the Matrimonial Causes Act 1973 or section 17(1) of the Matrimonial and Family Proceedings Act 1984,
(iii) an order for financial relief against parents under paragraph 1 of Schedule 1 to the Children Act 1989, or
(iv) a property adjustment order in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc. under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004.[12]
In relation to secure tenancies, there are some additional circumstances set out in subsection 160(2) of the Housing Act 1996 where the provisions of Part 6 will not apply. The first is where a tenancy remains secure pursuant to section 90 of the Housing Act 1985. Section 90 of the Housing Act 1985 applies where a secure tenant dies and the tenancy is a tenancy for a term certain. A “term certain” is not defined in the Housing Act 1985 but is a term used throughout a variety of legislation and is part of the common law. Despite its long term use, relatively recently, in Livewest Homes Ltd (formerly Liverty Ltd) v Bamber [2019] EWCA Civ 1174; [2019] 1 WLR 6389, after a review of its use, case law and Blackstone’s Commentaries on the Laws of England, the court held at [59] that the word “certain” means that the lease (or tenancy) was granted for a term expressed to expire on a certain dated rather than on an an uncertain date. What section 90 of the Housing Act 1985 provides for is what happens to such a tenancy where the secure tenant dies. Part 6 does not apply to such circumstances.
The other two circumstances are referred to generally as mutual exchange i.e. where a secure tenancy:
(a) is assigned (i.e. transferred) by way of exchange (i.e. a swap of homes/tenancies) under section 92 of the Housing Act 1985; or,
(b) is granted in response to a request under section 158 of the Localism Act 2011. In brief, this is where a tenancy is exchanged by ending the existing tenancy and granting a new tenancy in the circumstances that are set out in section 158 of the Localism Act 2011.
In addition, section 160 of the Housing Act 1996 provides a power for the Secretary of State to make regulations as to when Part 6 will not apply.[13] The relevant regulations are the Allocation of Housing (England) Regulations 2002.[14] Regulation 3 provides that Part 6 does not apply in the following cases.
- Where a local housing authority secures the provision of suitable alternative accommodation pursuant to its duty to rehouse residential occupiers under section 39 of the Land Compensation Act 1973. Section 39 of the 1973 Act sets out a duty to rehouse residential occupiers when they are displaced from any land as a consequence of certain actions of a local authority using various powers local authorities have to acquire, improve, redevelop, or make orders in relation to, land, houses and/or buildings.
- The grant of a secure tenancy to a former owner-occupier or statutory tenant of a defective dwelling-house under sections 554 and 555 of the Housing Act 1985.
- Accommodation let by a local housing authority on a family intervention tenancy.[15]
When Part 6 applies – the meaning of “allocation”
Finally, section 159(2) of the Housing Act 1996 also sheds some light on the circumstances in which Part 6 applies (or will not apply). Section 159(2) sets out what an “allocation” is. Part 6 only applies to an allocation as defined by this section. Section 159(2) provides that, for the purposes of Part 6, a local housing authority allocates housing accommodation when they:
“(a) select a person to be a secure or introductory tenant of housing accommodation held by them,
(b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person,
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord,
(d) select a person to be a tenant under a secure contract[16] or an introductory standard contract[17] of housing accommodation held by them, or
(e) nominate a person to be a tenant under a secure contract or an introductory standard contract of housing accommodation held by another person”.
Selecting a person to be (a) a secure tenant; or, (b) a tenant pursuant to a secure contract; or, (c) a tenant under an introductory standard contract, includes circumstances where a local housing authority exercises any power to notify an existing tenant or licensee that their tenancy or licence is to be of a type set out at (a) to (c) of section 159(2).[18] Selecting a person in such circumstances will include, for example, where a local housing authority notifies an applicant that a tenancy granted pursuant to any homelessness function under Part 7 of the Housing Act 1996 where the local authority is the landlord will be secure. In the ordinary course of things, such a tenancy is not a secure tenancy.[19]
Nominating a person to be a secure or introductory tenant of housing accommodation held by another person is an allocation. So too is nominating a person to be an assured tenant of housing accommodation held by a PRPSH or RSL or a tenant under a secure contract or an introductory standard contract of housing accommodation held by another person. It does not include nominating a person to be an assured shorthold tenant.[20] The reference to nominating a person to be a certain type of tenant within section 159(2) will also include “nominating a person in pursuance of any arrangements (whether legally enforceable or not) to require that housing accommodation, or a specified amount of housing accommodation, is made available to a person or one of a number of persons nominated by the authority”.[21]
The definition of an allocation makes it clear that there will be other circumstances relevant to local housing authorities that will fall outside the Part 6 regime as it only applies where someone is selected or nominated to be a secure, introductory or assured tenant or a secure or introductory standard contract holder. Whilst this may cover the majority of scenarios, there are other obvious examples, in addition to the circumstances already outlined above, where there will not be an “allocation”. Such examples include where temporary accommodation is being provided to a homelessness person under a non-secure tenancy agreement and where an agreement is granted under the Mobile Homes Act 1983.
Is an allocation the same as granting a tenancy?
It is important to recognise that an allocation is not the same as a local housing authority granting a tenancy. In Birmingham City Council v Qasim [2009] EWCA Civ 1080; [2010] PTSR 471, the Court of Appeal considered Part 6 of the Housing Act 1996 (prior to the Localism Act 2011 amendments) and, as part of that consideration, asked itself whether or not an allocation under Part 6 include the grant of a tenancy. The Court of Appeal held that Part 6 of the Housing Act 1996 was:
“18. …concerned with, indeed limited to, establishing and then managing priorities between applicants for residential accommodation (which may or may not be owned by the local authority in question) as it becomes available for letting, which effectively is preliminary to, and not part of, the actual letting of such accommodation, which is governed by Part II of the 1985 Act”.
Whilst acknowledging at [20] that distinguishing an allocation (under Part 6, Housing Act 1996) and a disposal (under Part 2, Housing Act 1985) in such a way may be “artificial” and “rather technical”, in checking the analysis worked, the Master of the Rolls pointed to:
- the use of the words “select” and “nominate” within section 159(2); and,
- the fact that in some cases the rules under Part 6 do not apply under what is now subsection (4A), (4B) and (5) of section 159 and section 160,
and held that the procedure in the legislation for selecting an applicant to be a secure tenant of available accommodation was not a purported disposal by way of the grant of a secure tenancy.[22]
What is the consequence of granting a tenancy to a person not selected in accordance with Part 6 of the Housing Act 1996?
This was the second question considered in Birmingham City Council v Qasim [2009] EWCA Civ 1080; [2010] PTSR 471. It was held that, whilst housing is to be allocated in accordance with a local housing authority’s allocation scheme, as the grant of a secure tenancy is different to deciding whether a person should be allocated accommodation, “the grant of a secure tenancy by an authority to someone to whom accommodation has been allocated inconsistently with the authority’s scheme does not thereby render the tenancy void or ineffective”.[23] On the most basic level Qasim confirms that a tenancy will be valid in circumstances where it has been granted to a person that was not selected or nominated in accordance with a local housing authority’s allocation.
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[1] Subsection 159(1), Housing Act 1996.
[2] A local authority or a housing action trust may elect to operate an introductory tenancy regime.
[3] The Housing and Regeneration Act 2008 created the concept of private registered providers of social housing. This is a term apply in England only. Section 80 of the Housing and Regeneration Act 2008 explains how “provider of social housing” is to be construed and, thereafter, how the words “registered providers” and “private registered providers” are applied. On the most basic level, this term refers to social landlords in England who are not local authorities.
[4] Again, on the most basic level, this is how social landlords in Wales are referred to. When the Housing and Regeneration Act 2008 created PRPSHs in England, it restricted the “registered social landlord” system to Wales. Prior to these changes, social housing providers in England were also known as RSLs.
[5] Subsections 159(4A) and (4B), Housing Act 1996.
[6] It should be noted that whilst a local housing authority should take account of situations involving domestic abuse in its housing allocations scheme, management transfers, which would not be a Part 6, Housing Act 1996 allocation, are also likely to be relevant where an applicant has been subjected to domestic abuse. A decision not to accommodate on the basis of a management transfer could be the subject of a claim for judicial review: see e.g. R (on the application of TRX) v Network Homes Ltd [2022] EWHC 456 (Admin); [2023] HLR 6.
[7] See the statutory guidance for local authorities at paragraph 1.9.
[8] See e.g. Harrow London Borough Council v Qazi [2004] 1 AC 983, 997, para 25; Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 at [54]; London Borough of Hounslow v Powell [2011] UKSC 8; [2011] 2 AC 186 at [35] and Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5 at [25].
[9] Subsection 160(3)(a), Housing Act 1996.
[10] Section 125, Housing Act 1996. There is also provision in section 125 regarding the trial period where a tenancy is adopted by a local authority or housing action trust or where an introductory tenant was formerly a tenant under another introductory tenancy. Such detail is outside the scope of this book.
[11] The complexities of succession are outside the scope of this book. For further details, see Law Brief Publishing, A Practical Guide to Succession to Social Housing Tenancies by Stephanie Lovegrove (March 2023).
[12] Subsection 160(2) and (3), Housing Act 1996.
[13] Subsections 160(4) and (5), Housing Act 1996.
[14] SI No. 3264.
[15] Family intervention tenancies were introduced by the Housing and Regeneration Act 2008 (section 297) and are not secure or assured tenancies (see schedule 1, Housing Act 1985 and schedule 1, Housing Act 1988).
[16] Secure contracts are one of the types of tenure available under the Renting Homes (Wales) Act 2016. Whilst this book does not cover the provisions relating to the allocation of accommodation in Wales, there could be circumstances where a local housing authority in England has cause to nominate someone to be a tenant under a secure contract. It should be noted that in Wales, those holding secure contracts are known as contract-holders rather than tenants.
[17] Introductory standard contracts are a type of tenure available under the Renting Homes (Wales) Act 2016.
[18] Subsection 159(3), Housing Act 1996.
[19] See paragraph 4, schedule 1 of the Housing Act 1985.
[20] Subsection 159(2)(c), Housing Act 1996.
[21] Subsection 159(4), Housing Act 1996.
[22] Birmingham City Council v Qasim [2009] EWCA Civ 1080; [2010] PTSR 471 at [21]-[24].
[23] Birmingham City Council v Qasim [2009] EWCA Civ 1080; [2010] PTSR 471 at [25]-[37].