Housing applications from mixed households
It is important to note that the eligibility criteria for a housing allocation from a local authority apply only to the applicant themselves. No tenancy can be offered to a non-eligible applicant, and no ineligible person can be a joint tenant either. This exclusion does not apply to certain tenancy transfers that arise by the operation of the law, such as a statutory succession or mutual exchange (for example, from a sole tenant to a joint tenant). See s.160 of the Housing Act 1996 for the full list.
In all other cases, when assessing the needs of the applicant, all of the household have to be taken into account, whether eligible or not. This is because the authority has to give preference to applicants with children or those living in overcrowded conditions, irrespective of whether those children, or other residents taken account in the overcrowding are eligible. The 'Kimvono' case (R (Kimvono) v Tower Hamlets (2000) QBD) (reference CO/3579/2000, case report [2001] 33 HLR 78) established this, and clarified that the local authority has no discretion in this area.
However, the Kimvono case looked at a 'nuclear' family, parent and minor children. In Ariemuguvbe, the local authority's decision not to accept five adult children as members of the household was upheld. The court decided that the Council was entitled to interpret 'household' by reference to its ordinary, everyday usage. It was up to them to decide whether these five adult children were members of the claimant's household. They decided that these children ought not to be taken into account as part of the household, given their ages and also given their precarious immigration status, and the court agreed that they had the discretion to do this. The case was different from Kimvono because Tower Hamlets had sought to disregard the presence of minor children.
For 'mixed families' making homelessness applications different rules apply: these are 'restricted cases' as a result of amendments to the Housing Act 1996 introduced in 2009, which created a new section 193(7AD) of the Housing Act 1996 (in England) which is largely reproduced in the Housing (Wales) Act 2014.
For allocations, the effect is that such restricted cases attract no reasonable preference given to homeless applicants but should attract the reasonable preference given to people for other reasons (medical or social need, overcrowded or insanitary conditions, etc.)
For homeless applications, the local authority need not have reason to believe that the applicant is eligible to start an application and then needs proof of that to proceed. Section 185(4) of the Housing Act 1996 in England and Schedule 2 of the 2014 Act in Wales provide that a person from abroad who is ineligible must be disregarded in determining whether an applicant is homeless or in priority need.
For example, if an applicant is homeless because her home cannot accommodate her children, both she and at least one child must be eligible for homelessness services. If a man applies for help, and would be in priority need because of his disabled wife, both he and she must be eligible. However, once an applicant is deemed eligible, homeless and in priority need, temporary and interim housing should be offered for the whole household (i.e. those who are actually living with the applicant), eligible or not. But when it comes to allocations, the authority can decide who it wants to include in the household for an allocation, as long as it is reasonable (as in Ariemuguvbe, see above).
The provisions for 'restricted' cases apply where
- the applicant is eligible
- the applicant is not a person subject to immigration control (i.e. is a UK national, Irish citizen or Commonwealth national with right of abode).
- the applicant depends for a definition of homelessness or priority need on a person who would normally be regarded as ineligible (i.e. a person subject to immigration control and not in one of the classes listed as eligible by regulation).
Who might these be? Typically, they would include British nationals who have married/partnered/cohabited with a person from abroad, who is then subject to a bar on recourse to public funds for five years, or a British national with a partner who is an overseas student or worker. If the applicant's priority need depended entirely on the partner (because, for example, she was pregnant), then this would be that type of household.
These provisions do not affect
- eligible people subject to immigration control who are not in priority need because the relevant family members are not eligible (for example a person with indefinite leave to remain whose spouse/partner/cohabitee came to join him or her and is now pregnant): they remain simply not in priority need (but in this example, will be in priority need once the baby is born, because the baby will be British)
- eligible UK nationals, Irish citizens and Commonwealth nationals with right of abode who have an ineligible family member but do not depend on him or her to be defined as homeless or in priority need (for example, a UK national who already has a UK national child living with him/her and also has a pregnant partner who is ineligible)
How does the 'restricted person' provision work?
The legislation creates a type of person, a 'restricted person' who is effectively neither eligible nor ineligible for housing. This is used just to describe the ineligible family members of eligible people not subject to immigration control.
Where an eligible applicant applies as homeless but is only defined as in priority need or homeless because of the presence of a restricted person in his/her household, then s/he will be offered emergency and interim accommodation.
His/her application for a housing allocation should not attract any reasonable preference given to homeless applicants but should attract the reasonable preference given to people for other reasons (medical or social need, overcrowded or insanitary conditions, etc.).
The local authority should seek, so far as is practicable, to bring their duty towards such cases to an end by offering private sector accommodation (but this is discretionary and the local authority can offer social housing if it so chooses: it can only do so in line with its published allocations policy, however).
The local authority must serve a notice on the applicant explaining their decision which should:
- inform the applicant that their decision was reached on that basis
- include the name of the restricted person
- explain why the person is a restricted person, and
- explain the effect of the relevant legislation.
Many councils now discharge their duties to all or most homeless people via the private rented sector, which puts them all into a similar position to restricted cases. Restricted people, however, will not be 'picked up' as homeless automatically if they lose their accommodation within two years even if they are still in priority need. If they do lose their accommodation within that period and are still restricted they will simply go through the whole process again.
