The Law Society has been coordinating responses from members of its relevant committees (planning, conveyancing and housing) to large parts of the Localism Bill. This is the bill that proposes to bring in far-reaching plans to devolve power to the local community to build on the government’s idea of the ‘Big Society’. The government’s own press notice described the bill as introducing ‘the most radical reform of social housing in a generation’.

The Society’s Housing Law Committee (HLC) has been involved in the consultation exercise in respect of part 6 of the bill. Membership of the HLC comprises practitioners and academics with considerable experience working with social ­registered landlords, local authorities and tenants. Like other interested ­parties, the HLC has made submissions to the bill, which had its second reading in the House of Commons on 17 January and is now before the standing ­committee.

The government published a policy paper on 22 November 2010, Local decisions: a fairer future for social housing. This paper discussed the government’s aim of introducing measures to give people assistance when they most need it, but with a view to ensuring fair access to social housing at all times to as many as possible.

In its response to the government’s proposals, the HLC focused on key aspects of the bill which may fail to achieve this objective. The concern is that more issues are likely to arise in the housing field at a time when legal aid cuts will restrict access to justice for those who may need to challenge issues, with a corresponding rise in spending for those who administer or allocate housing budgets.

The committee’s focus has essentially (but not exclusively) been on three areas: homelessness and ­allocation; tenure reform; and ­succession rights.

Homelessness and allocationOver the past 13 years the number of people on the waiting list for council housing has almost doubled, to five million. Ministers have argued that this has been caused by centrally determined rules which do not necessarily respond well to local community concerns. A proposal is to devolve power to local authorities to determine the categories of persons who will or will not qualify to be allocated housing. Local authorities will be allowed to discharge the main homelessness duty by arranging for an offer of suitable accommodation through a private landlord, without requiring the applicant’s agreement.

Clauses 121-123 of the bill would allow local authorities to prepare an allocation scheme through which they would have the freedom to determine who should qualify to go on the waiting list. The problem with this proposal is that it fails to recognise that, in practice, various local authorities have developed different allocation schemes, and these have complicated matters.

There is a need for homogeneity to promote simplicity. This would minimise the potential for delay in handling issues that invariably arise from those who call for assistance when they are homeless. The determination of the government to provide wider discretion to local authorities may be at the cost of a lost opportunity to have properly considered seeking such cohesion within the allocation schemes.

The idea of trying to make the allocation system more fluid is coupled with controversial proposals for the homeless, whereby a local authority would be allowed a discretion to discharge its full duty by offering accommodation in the private sector, if the need could only be met in that way.

The difficulty is that the infrastructure is not in place in the private rented sector to make this proposal work properly. To allow discharge to private rented accommodation without implementing better regulation of private sector landlords is likely to create a situation where households become trapped in a cycle of insecure tenancies, without the prospect of ever securing a stable home. More often than not, private rented accommodation is expensive and varies in quality. And it is invariably insecure, as most lettings are on an assured ­shorthold basis.

There is already an undesirable practice occurring among some local authorities, where homeless applicants are provided private sector accommodation without being informed that, in effect, they will lose their place on the housing allocation list. The bill does not address this problem. Instead it provides that there would once again be a main homelessness duty to those applicants who reapply for accommodation upon becoming unintentionally homeless within two years of accepting a private accommodation. This approach would legalise a ‘revolving door’ approach to homelessness. It does nothing to aid public spending, both in terms of legal aid funding for such issues when they return, and local authorities finding the same number of people ending up requiring assistance.

Flexible tenanciesSection 130 of part 6 of the bill proposes tenure reforms which will allow local authorities to offer new social housing tenancies on a fixed-term basis of at least two years. Housing minister Grant Shapps considers that this would help end the concept of ‘a council house for life’, compelling more fluid movement among properties for those most in need.

The idea is fraught with operational difficulties, in particular in relation to those on relatively modest incomes. The majority of people recognise that the most in need, on welfare benefits, rely on social housing, so there is an inclination to think that the two go ‘hand in hand’ – you’re on benefit so you live in social housing. But, of course, that is not the case. Those on relatively modest incomes are at risk of being excluded, especially if their needs are perceived to have diminished after being provided with a fixed-term tenancy. In London and the south-east, for example, choices are limited in the housing market. People in the latter group would be marginalised by the proposals and end up being compelled to find accommodation in an inadequately regulated private rented sector.

Time-limited tenancies would require additional resources to be invested by local authorities who are already under pressure from cuts to their manpower. Before such tenancies could be terminated, there would need to be a review. This would require delving into the private lives of householders to ascertain whether or not a family should move on. It would call for investigations into someone’s income, family composition and all manner of extremely private matters.

As Shelter stated in its response to the bill, it could be counterproductive in respect of the government’s ­intention to boost social mobility. Many people may not want to aspire to improve their income at the possible cost of losing both their home and, in all probability, the life they have built in the community where they reside.

Succession rightsClause 134 proposes removing all the categories able to qualify for statutory succession rights, other than spouses and partners who are able to succeed to a secure tenancy. This is potentially damaging to the concept of a sustainable community. It would work against those families whose household is of an unconventional, but perfectly legitimate, composition, made up of relatives or those most close to them, choosing to live together for very personal reasons. The proposal could, for example, operate against those who, for cultural or economic reasons, live together in households where a family member has formed a stable home with a ­tenant who has no spouse or partner to succeed.

The proposal threatens to destabilise and undermine the notion of what a home can mean to those who have invested their lives in a place. There is insufficient research on the potential impact of this provision upon those it may affect. The committee considers that this proposal should not be implemented.

ConclusionThere is concern that the government is seeking to rush in reforms without providing a proper foundation for them. There was a very limited ­timeframe for responses between the consultation stage and the bill passing through to the standing ­committee.

The committee has long been of the view that other major reforms should not be contemplated without due consideration to resurrecting the work that had started on the Law Commission’s Rented Homes Bill into simplification of tenure in housing law and the implementation of the ­findings of the Rugg report on ­regulating the private rented sector. Both would have provided the ­necessary foundation for introducing other, ambitious changes as contemplated for social housing in the Localism Bill. If some of the proposals in the bill go through without ­amendment, the long-term effect may be exactly contrary to the government’s intentions. Moreover, there will be no corresponding saving in government spending.

  • The summary of responses to the consultation was published on 28 February.

Debra Wilson is a solicitor and partner at Anthony Gold Solicitors and a member of the Law Society’s Housing Law Committee. Contact Debra Wilson on email. The HLC seeks to represent the views of solicitors practising in the housing field and welcomes comments pertaining to housing law reform