The Homelessness Act 2002 and Housing Allocations: All Change or Business as Usual?
| Author | Emma Laurie |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.06701003.x |
| Date | 01 January 2004 |
| Published date | 01 January 2004 |
LEGISLATION
The Homelessness Act 2002 and Housing Allocations:
All Change or Business as Usual?
Emma Laurie
n
The Homelessness Act 2002
1
represents the ¢rst piece of housinglegislation from
the Labour Government since taking o⁄ce in May 1997, and therefore the ¢rst
opportunity to assess the Government’s stance on public sector housi ng alloca-
tions and homelessness.
2
The Act seeks to regulate the wayi nwhich local author-
ity landlords decide who should become tenants of their housing stock,
3
and as
such also presents an opportunity to evaluate the Government’s approach to
central-local government relations in this area.
4
The philosophy ofthe 2002 Act is,
in some respects, in keeping with that of its legislative antecedents. Indeed, certain
of its provisions can be tracedback to the ¢rst legislation to controllocal authorities’
activities in this sphere. However, the Act can also be seen as a radical attempt to
shift the culture of public sector housing allocations, and particularly to alter the
way in which authorities select their tenants.This note focuses on the provisions
of the Homelessness Act 2002 relating to housingallocations (as distinct from the
separate homelessness provisions) and locates them in the context of the broader
debate on central-local government relations. It will be argued that in order to
assess the signi¢cance of the 2002 Act, it is necessary to consider both how it
a¡ects the substantive law on housing allocations and how it impinges upon,
and can be understood as a re£ection of, central government’s relationship with
local government.
The ¢rst part of the note sets the sc ene bycomparing the approach adopted by
successive Parliaments towards the allocation of public sector housing before 1996
with the changes implemented by the 2002 Act’s immediate predecessor, the
Housing Act 1996, and the implications of those changes for the central-local
n
Lecturer in Law, University of Southampton. I am grateful for the comments of Professor Nick
W|keley,Professor Dave Cowana nd an anonymousreferee on an earlier draft.
1 The Act received Royal Assent on 26 February 2002 a nd the allocation provisions were brought
into force on 31January 2003; The Homelessness Act 2002 (Commencement No 3) (England)
Order 2002, SI 2002 No 3114.
2 The 2002 Act extends only to England and Wales.The Housing (Scotland) Act 20 01 governs al-
locations byboth local authorities and Registered Social Landlords (RSLs) in Scotland.
to the allocation of both secure and introductory tenancies, and nominationsto RSLs; Housing
Act 1996, s 159(1).
4 Housi ng associations were not governed directly by the allocations scheme of the 1996 Act, and
this has not cha nged under the 2002 Act. The Housing Corporation’s Regulatory Code and
statutory Regulatory Guidance (which replace the earlier, and more prescriptive, Performance
Standards) require housing associations to workwith local authorities to e nable the latter to ful¢l
their duties to the homeless and people in priority housing need:The Housing Corporation,The
Way Forward:OurApproach to Regulation (London:The Housing Corporation, 2002).
rThe Modern LawReview Limited 2004
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(2004) 67(1) MLR 48^68
relationship. It also reviews the key features of the Green Paper that preceded the
2002 Act. The second section considers the provisions of the Homelessness Act
2002 in outline before proceeding toexamine in more detail two areas that repre-
sent a departure from the traditional approach; a move away from allocating
housing according to need and the relevance of ‘behaviour’to an application for
local authorityhousing.The third section concludes byconsidering the inferences
that may be drawn from the 2002 Act about the state of relations between local
authoritiesand the current government, andthe extent to which this haschanged
since 1996.
FROM DISCRETION TO JURIDIFICATION?
Allocation of public sectorhousing has traditionally been characterised bya broad
degree of discretion conferred on local authorities to decide to whom they
allocatetheir housing stock.
5
The reasons forgranting local authorities a free hand
in this sphere are multifarious and complex.
6
However, successive governments
have recognised that local circumstances demand a local response and it is there-
fore atleast impracticable (if not undesirable) to formulate a centrally determined
solution.
7
This non-interventionist attitudechanged dramatically with the Hous-
ing Act1996. Indeed, Part VIof the 1996 Act marked a distinct departure fromthe
style of previous legislation. For the ¢rst time it laid down a comprehensive stat-
utory framework forthe allocation of housingby local authorities.The numerous
and broadly stated regulation-making powers reserved to the Secretary of State
constituted a particularly novel feature.
8
The imposition of a detailed statutory
framework raised concerns during the parliamentary debates that the Govern-
ment was attempting to limit local government’s discretion.
9
Fears were also
expressed that the new regulation-making powers would enable the Secretary
of State to intervene at the level of detail in an unprecedented way.
10
The Govern-
ment denied this intention
11
and claimed that local authorities would retain a
substantial degree of discretion in their allocations functions;
12
a claim that has
5 Local housing authorities have merely been required to give a ‘reasonable preference’to certain
categories of people,origi natingi n the Housing (Financial Provisions) Act1924and co nsolidated
in the Housing Act 1985.
6 E. Laurie, The Enduring Appeal of ‘Reasonable Preference’: Public Sector Housing Allocations within the
Contextof the Central-Local Government Relationship (unpublished PhD thesis, University of South-
ampton 2002).
7 Central Housing Advisory Committee, Council Housing Purpose, Procedures and Priorities.Ninth
Report of the Housing Management Sub-Committee of CHAC (London: HMSO, 1969)
para 54.
8 In contrast with previous housing allocations legislation, regulation-making powers were con-
tained in virtually every section of PartVI of the 1996 Act.
9 In Parliament the opposition parties argued that the Governmentwas proposing ‘a single, mono-
lithic, bureaucraticmechanism’,rather than‘apluralistic framework thato¡ers diversity and choice
and recognises a range of di¡erent needs’; HC Standing Committee G col 577 13 March 1996,
Nick Raynsford MP.
10 HL Deb vol573 cols 390-1 19June 1996,Earl Russell.
11 Ibid, col 392, LordMackay.
12 HC Deb Standing Committee G cols 600, 617,625 13 March1996, David Curry MP.
Emma Laurie
49rThe Modern LawReview Limited 2004
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