Housing applications from mixed households
Housing applications by ‘mixed families’
This page explains in more detail the housing position of 'mixed families' where one is eligible for a housing allocation or help as homeless but the other is not. Although the page refers to the eligible family member being British or Irish, the same rules apply to any other similar family where one person is eligible (for example, has indefinite leave to remain) but another is ineligible (e.g. has limited leave).
Anyone aged 16 or over has the right to apply to the local authority housing list for an allocation. However, a tenancy cannot be granted to person who is subject to immigration control (unless that person is already a secure tenant (Immigration control (Housing and Homelessness) Order, Art.6) (pdf). So if in a couple the applicant is eligible but their partner is ineligible the applicant must be the sole tenant.
If a British/Irish citizen makes an application for housing and s/he has ineligible family members (i.e. limited leave or no leave) the authority must assess the applicant’s needs according to their allocation scheme, and give reasonable preference to certain types of application including those made on the grounds of overcrowding or social or medical need. The other household members must be taken into account in deciding need and reasonable preference, even if they themselves are ineligible: see the 'Kimvono' case (R (Kimvono) v Tower Hamlets (2000) QBD) (reference CO/3579/2000, case report [2001] 33 HLR 78).
When a local authority receives an application in this type of case it must first decide who it is reasonable to treat as a member of the household and in doing so the temporary nature of a person's immigration status can be a factor it takes into account: see Ariemuguvbe. So whilst it would be reasonable for the council not to include the applicant’s adult child where that child had already been living independently (Ariemuguvbe) it would be unreasonable to exclude a child that was a minor (Kimvono - see above).
Homeless applications where people with limited leave are part of the household
Homelessness applications made by a British/Irish applicant with ineligible family members are treated in the same way as for a housing allocation (i.e. the reasonable preference rules).
An ineligible family member of a British/Irish applicant is a ‘restricted person’ (s30(6) Housing (Scotland) Act 1987). The procedure for dealing with this type of application is as follows:
- If the applicant is homeless but is only defined as such because of the presence of a restricted person, normally a child, 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 to an end which it can do by making an offer of private rented accommodation for a period of at least 12 months (s31(2A)-(2H) Housing (Scotland) Act 1987 (as inserted by Housing and Regeneration Act 2008 schedule 15) (but can offer social housing if it chooses - but if it does so the offer must comply with its published allocations policy).
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The local authority must serve a notice on the applicant explaining their decision which
the law says 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.
If the authority offers private accommodation its duty is discharged whether or not the applicant accepts the offer, provided the applicant has been informed of (a) the possible consequence of refusing it, and (b) that they have the right to request a review of the decision.
More detailed information on the legal aspects of dealing with homelessness applications in these cases is given on the page on the law and housing eligibility.
