Social housing allocations in Scotland: practice guide

7. Other Requirements to be Considered in Allocations

This section covers the other rules and regulations that landlords should consider when reviewing or developing an allocation policy.

By working through this section readers will:

• be aware of the range of factors, including residency, outstanding debts, age and income, that cannot be taken into account when allocating.
• understand the role of Councillors and Management Committees in relation to allocations.

7.1 Factors which should not be taken into account

The factors which landlords must not take into account when allocating properties are set out in section 20(2) of the 1987 Act (as amended by section 10(3) of the 2001 Act).

Residency

The first provision under section 20(2) of the 1987 Act (as amended) states that a landlord cannot consider the length of time for which an applicant has lived in its area. This makes sure that the time an applicant has lived in the area does not influence decisions on priority for housing.

It prevents, for example, the award of points purely for the time lived in a landlord's area. For local authorities, "area" means their administrative area. For RSLs, "area" means the local authority area(s) or parts of such areas in which they have housing.

The law does not prevent landlords from giving points for the length of time an applicant has been on the housing list. However, time on the housing list must not dominate an allocation policy and where such points are given they should be given to anyone on the list irrespective of where they currently live.

The provisions at section 20(2)(aa) of the 1987 Act (as amended) prevents a landlord from taking into account whether an applicant lives in its area if the applicant:

i) is employed, or has been offered employment, in the area; or

ii) wishes to move into the area to seek employment and the landlord is satisfied that this is the applicant's intention; or

iii) wishes to move into the area to be near a relative or carer; or

iv) has special social or medical reasons for requiring to be housed within the area; or

v) wishes to move into the area because of harassment; or

vi) wishes to move into the area because he or she runs the risk of domestic abuse.

The law does not however prevent landlords from considering the fact that someone lives in their area and giving priority to local people. This is known as having a local connection to an area and landlords can take into account the fact that the applicant is resident in their area. This is usually best done through a Local Letting Initiative. They cannot take living in their area into account for applicants in the circumstances listed above under residency.

Local connection criteria could include giving priority to people in specific neighbourhoods or communities, in line with what is set above. Criteria cannot, however, include any of the factors landlords cannot take into account under section 20(2) of the 1987 Act (as amended).

Please note that local connection is also covered under homelessness legislation and is defined differently in relation to homelessness. Landlords should refer to the Scottish Government's Code of Guidance on Homelessness 2005. The Code is available at: /publications/code-guidance-homelessness/

Outstanding liabilities

Section 20(2)(a) of the 1987 Act (as amended) also does not allow landlords to take account of:

(ii) any outstanding liability (such as rent arrears) attributable to the tenancy of a house of which the applicant was not the tenant;

(iii) any rent or other liabilities accrued by the applicant on a previous tenancy which are no longer outstanding;

(iv) any such liability which is outstanding but where:

(a) the amount outstanding is not more than 1/12th of the annual amount payable (or which was payable) by the applicant to the landlord in respect of the tenancy; or

(b) the applicant:

• has agreed arrangements with the landlord for paying the outstanding liability;
• has made payments in line with that arrangement for at least three months;
• and is continuing to make such payments.

(v) any outstanding liability (including council tax arrears) of the applicant or anyone who will live with the applicant which do not relate to the tenancy of a house. This means that any outstanding debts which do relate to the tenancy of a house, such as rent or service charges, can be taken into account if they do not fall within the exceptions already set out above.

The criteria at (ii) to (v) above are aimed at limiting the circumstances in which a landlord refuses to make an offer of housing to an applicant because of their previous debts.

It may be reasonable for landlords to not make offers of housing to applicants with significant unpaid rent arrears, service charges or cost of rechargeable repairs and these criteria do not prevent landlords from doing this.

However, landlords cannot withhold an offer of housing:

• because of non-housing debts; or
• if they have had arrears of rent or service charges which have since been paid; or
• where the rent or service charges arrears amount to no more than a month's charges, (to avoid penalising applicants for purely technical arrears); or
• where the applicant has come to an arrangement for paying arrears, has kept to the arrangement for at least three months and is continuing to make the payments. This helps applicants who are making a genuine effort to pay off arrears.

Age

Landlords cannot take into account:

(vi) the age of the applicant provided that the applicant is 16 years of age or over except in the allocation of:

(a) houses which have been designed or substantially adapted for occupation by persons of a particular age group;

(b) houses to persons who are, or are to be, in receipt of housing support services (within the meaning of section 91 of the 2001 Act) for persons of a particular age group.

"Housing support services" includes any service which provides support, help, advice or counselling to an individual with particular needs so that individuals occupy, or continue to occupy, a house as their home (see section 91 of the 2001 Act). The provisions relating to the disposal and management of premises in the Equality Act 2010 are excluded from the scope of the ban on age discrimination in that Act and therefore do not affect the provisions in the 1987 Act (as amended).

These exceptions reflect the fact that age should not be a barrier to being eligible for and receiving an offer of housing.

In some cases, certain types of housing will be particularly or only suitable for certain age groups. The law does not define these age groups, and this can include, but is not restricted to, sheltered housing for older people and supported housing, such as foyers, for young people.

The law doesn't define the term "substantially adapted" in subsection (a), but this is likely to involve major adaptations to houses. Substantial adaptations are generally determined as work that involves structural or other permanent changes to a house. Further information on adaptations is available from the Scottish Government's website at: /policies/housing-and-independent-living/housing-adaptations/

While it is important for landlords to match a property to an applicant and take into account the potential impact of a new tenant on existing tenants, this can be achieved by sensitive allocations, sometimes known as sensitive lettings, rather than by a blanket approach based on age.

Legislation does not prevent landlords from taking into account the composition of a household when allocating a specific property and landlords will need to determine their approach on this. For example, landlords may decide not to allocate a multi-storey flat to a family with young children because of the lack of play space.

Income

Landlords cannot take into account the income of the applicant or their family.

Income in this context refers to income of all sources including benefits. The law prevents landlords from taking the income of housing applicants into account when allocating homes. This restriction also applies to applicants for housing who are non-UK nationals, whether or not they can receive benefits, and who may as a result, have problems in paying their rent.

Other factors

The 2001 Act extends Section 20(2)(b) of the 1987 Act so that it now applies to allocations by both local authorities and RSLs. This prevents landlords from imposing certain requirements before they allocate housing to an applicant. Landlords cannot specify that:

• an application must have stayed in force for a minimum period. This means that landlords cannot require someone to have been on their housing list for a set period of time before they are eligible for an offer of housing;
• the applicant gets a divorce or judicial separation; or
• the applicant no longer lives with, or in the same house as, some other person.

7.2 Role of Councillors and RSL Management Committees

The role of Councillors and governing body members is to set and review the policy and monitor progress against policy aims. Councillors and RSL Management Committee members generally approve the allocation policy and have overall responsibility for ensuring the policy is delivered.

Section 20(3) of the 1987 Act (as inserted by section 154 of the Leasehold Reform, Housing and Urban Development Act 1993) excludes Councillors from decisions under certain circumstances.

It excludes local Councillors from being involved in a decision on allocating a council house (or a house where the local authority has nomination rights), where the house in question is situated, or the applicant for the house in question lives, in their electoral division or ward.

This does not prevent Councillors from making factual information known to the local authority or from making representations to the local authority on behalf of a constituent.

Management Committees must have no involvement in discussions or decisions about individual allocations, which must stay the responsibility of officers of the RSL.

7.3 Allocations to staff or family members

Care must be taken when members of staff or their families apply for housing. Any member of staff or a member of their family is entitled to join a landlord's housing list and be made an offer of housing under the same rules as any other applicant.

The application form should ask applicants if they are a member of staff or are related to a member of staff. Where this is the case, the member of staff concerned should play no role in assessing the level of priority to be awarded or in making any offers of housing.

There should be clear processes for awarding of priority or making an offer of housing to a member of staff or family members. This should be checked and approved by a senior member of staff who is not involved in the day-to-day allocations work. A full record of why the applicant was awarded any priority and why any specific offer of housing was made should be kept.

Key Points

A landlord cannot consider the length of time for which an applicant has lived in its area. However, the law does not prevent landlords from taking the fact that someone lives in their area into account except under certain circumstances.

Landlords are not allowed to take a range of financial liabilities into account.

Landlords cannot take age into account except in the allocation of houses which have been designed or substantially adapted or where people will be in receipt of housing support services for people of a particular age.

Landlords cannot take into account the income of the applicant and his or her family.

Councillors and RSL Management Committees should not be involved in individual allocations decisions. Only staff should run the day-to-day operation of the allocation process.