Section: Allocations & Transfers

Eligibility Loophole Closed by New Regulations

The Government strengthened the rules on access to council housing and homelessness assistance in England for persons from abroad. The new amending regulations came into force on 20 April, and serve to ensure that nationals from the European Economic Area (EEA) who do not have a right to reside in the UK are not eligible for council housing and homelessness assistance in England.

This closed a loophole arising from a recent Appeal Court ruling (London Borough of Barnet v Abdi and Ismail). That ruling found that the applicants, who were both economically inactive EEA nationals, were subject to immigration control, as they did not have a right to reside in the UK under European law. This meant that, contrary to the understanding of the Government and local authorities, the applicants were eligible for homelessness assistance under the housing rules which apply to persons subject to immigration control.

The new regulations mean that the position is now as intended by the Government when it introduced measures to strengthen the rules in May 2004.

Information Notes

Under the Housing Act 1996, the First Secretary of State can make regulations governing the classes of person from abroad who will be eligible for an allocation of settled housing (through local authority housing waiting lists) and homelessness assistance.

There are separate regulations governing access for people who are subject to immigration control and for other persons from abroad who are not subject to immigration control.

The ODPM considered that nationals from countries within the European Economic Area (EEA) would not be subject to immigration control, and would therefore be subject to the regulations governing access to housing for persons from abroad who are not subject to immigration control. In May 2004, these regulations were amended to ensure, among other things, that EEA nationals who do not have a right to reside in the UK (because they are economically inactive and do not have sufficient financial resources to support themselves) would not be eligible for housing.

On 6 April the Court of Appeal handed down a judgement in the case of London Borough of Barnet v Abdi and Ismail, and ruled that EEA nationals who do not have a right to reside in the UK are subject to immigration control. The effect of this judgement was that local housing authorities needed to consider the housing eligibility of EEA nationals who did not have a right to reside in accordance with the regulations that apply to persons subject to immigration control.

The housing regulations that then applied to persons subject to immigration control included provisions that meant nationals from most countries within the EEA who do not have a right to reside would be eligible for housing. This was not the intention, and undermined the Government's policy.

The Government acted to remove from the housing regulations the eligibility provisions which EEA nationals with no right to reside might rely on. The effect of this is to put the position regarding eligibility for housing back to what it had been considered to be before the Court of Appeal's judgement.

The Allocation of Housing and Homelessness (Amendment) (England) Regulations 2006 SI 1093

Case Law Update

A landmark decision had the effect of banning students from moving into a new 52-homes housing estate close to Loughborough University. The 106 agreement by Charnwood Borough Council requires developers of the houses on the site of a former university hall not to permit 'the use of any dwelling' by anyone aged 18 to 27 who is studying at the college or university.

It is believed that this is the first time any sector of a community has been barred from living in a specific place. The outcome of the decision will be carefully monitored by other university cities, which have to deal with the same type of complaints from residents that instigated the Loughborough decision. In those cities which have areas of high student residence, the decision could lead to local authorities also introducing "no student" clauses in planning decisions. Leeds, Newcastle, and Edinburgh are just a few cities believed to be watching developments with interest.

The National Union of Students was reported to be considering options for a legal challenge to the decision.
In December 2003, Waltham Forest LBC adopted a choice-based lettings scheme, which allowed applicants to bid for available properties and prioritised their applications by a system of banding.

In Judicial Review proceedings, the applicants claimed the scheme did not reflect their composite housing needs. The High Court agreed and declared the banding provisions of the Council's scheme to be unlawful.

R (Cali & others) v Waltham Forest LBC [2005] EWHC 2950 (AC)

Section: Allocations & Transfers

Eligibility Loophole Closed by New Regulations

Information Notes

Case Law Update

Legal Update

Reporting on January-April 2006

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