The main law on eligibility in England is contained in the Housing Act 1996, as amended by the Localism Act 2011, which allows the UK government to introduce regulations about eligibility for allocations and for homelessness services in England.
Rules about who can actually apply for a housing allocation in England now vary between local authority areas, because the Localism Act introduced changes to the Housing Act 1996 which enable councils to set their own local rules about who can apply to be on a housing register or waiting list. However, some councils may not make specific local rules. Any changes in local rules cannot discriminate directly or indirectly against particular nationalities or ethnic groups (for more on this see the page on what is discrimination?)
In Wales, the Housing Act 1996, Part 6, continues to govern allocation of social housing. Local housing authorities in Wales apply Housing Act 1996, Part 6, without the amendments contained in the Localism Act 2011. For applications for homelessness assistance to local housing authorities in Wales, the relevant legislation is the Housing (Wales) Act 2014, which came into force on 27 April 2015. Applications made before that date will still be considered under the Housing Act 1996, Part 7 (without the amendments in the Localism Act 2011).
When considering the relevant legislation, advisers should ensure that they have the text of the Act as it applies in England or in Wales, and should also ensure that the text of the Act is up-to-date. All legislation can be found here (although sometimes amendments are not fully up-to-date).
In England the current regulations are the Allocation of Housing and Homelessness (Eligibility) Regulations 2006. These regulations have subsequently been amended to include people with humanitarian protection, authorised Bulgarian and Romanian workers, certain Afghan citizens who have been granted limited leave to remain; and to exclude people with a European right to reside as the parent/s of a British child (the ‘Ruiz Zambrano’ right to reside).
Regulations 3 and 4 set out who is eligible for an allocation of housing by a local authority (i.e. by obtaining a rented home through the local council or by a nomination for a housing association tenancy).
Regulations 5 and 6 cover the rules affecting people applying as homeless to local councils.
Regulation 3 sets out the classes of people subject to immigration control who are entitled to go on the housing register:
- Those granted refugee status (Class A).
- Those granted exceptional leave to remain which is not subject to restrictions on recourse to public funds (Class B).
- Those with settled status (Class C) (indefinite leave to remain, residence), except:
- those who do not pass the habitual residence test
- those who arrived as sponsored immigrants subject to an undertaking and the undertaking or the arrival was less than five years ago unless the sponsor has died (in which case they have the same rights as other settled people).
- A person who has humanitarian protection granted under the Immigration Rules (Class D).
- A relevant Afghan citizen, who has been granted limited leave to enter the UK under paragraph 276BA1 of the Immigration Rules (usually because they worked as interpreters for British troops in Afghanistan) and who are habitually resident (Class E).
Regulation 4(1) sets out applicants that are ineligible for a housing allocation even though they are not subject to immigration control:
- Those who are not habitually resident in the UK, Channel Islands, the Isle of Man or the Republic of Ireland.
- Those whose only right to reside in the UK is derived from their status as a jobseeker or the family member of a jobseeker.
- Those whose only right to reside is the initial right to reside for a period not exceeding three months under Regulation 13 of the EEA regulations.
- Those whose only right to reside is as the parent of a UK citizen child who has no other rights to reside in the UK. This is given to a person or persons who are not EEA nationals and who are the sole carer/carers of a UK citizen child, where the child would otherwise have to leave the UK. The right to reside is granted under regulation 15A(4A) of the EEA regulations, as amended on 8 November 2012.
So this part of the regulations applies the habitual residence test to all (but some EEA nationals are then exempted from it by regulation 4(2) below) and makes ineligible those EEA nationals whose only right to reside is:
- as a jobseeker (i.e. looking for work, having never worked in the UK) or is
- the three-month right to reside granted to any EEA national on arrival or
- as the parent of a UK citizen child under regulation 15A(4A) of the EEA regulations (but those who applied before this regulation took effect on 8 November 2012 are eligible).
Regulation 4(2) sets out exceptions to Regulation 4(1), so that the following categories of people are eligible for an allocation of housing without having to pass the habitual residence test:
- EEA workers.
- EEA self-employed persons.
- Workers who are from Croatia and are working under the authorisation scheme during the first twelve months or their employment.
- A family member of one of the above groups.
- A person who has a permanent right to reside in the UK because they are:
- An EEA worker or a self-employed person who has ceased economic activity. This will arise where someone has reached retirement age or (for workers only) taken early retirement and they have lived in the UK continuously for more than three years prior to termination and they were economically active for the 12 months leading up to the termination.
- A family member of a worker or self-employed person who has ceased activity.
- The family member of a worker or self-employed EEA national, where the EEA national has died, the family member was resident with them before their death and either the worker or self-employed person had worked in the UK continuously for the two years prior to death, or his or her death was the result of an accident at work or occupational disease.
- A person who is in the UK as a result of being deported, expelled or removed by compulsion to the UK from another country.
Broadly the overall effect of Regulations 4(1) and 4(2) combined is that:
- EEA nationals who are economically active or acquired the right to reside through economic activity are eligible.
- Other EEA nationals with rights to reside (except jobseekers and those with three-months right to reside) are eligible but have to pass the habitual residence test.
- UK nationals and people with right of abode are eligible but have to pass the habitual residence test unless they have been deported or expelled from another country.
- Those EEA nationals who have no right to reside are not eligible.
- Those who have a right to reside as the parent/s of a UK citizen child are not eligible if they applied after 8 November 2012.
Regulations 5 and 6
Regulations 5 and 6 define who is eligible for homelessness assistance by duplicating the rules in regulations 3 and 4, but with the addition of a different Class E of applicants that are subject to immigration control but who are eligible for assistance. Class E covers various types of asylum seeker who made their application for asylum before April 3rd 2000 and who have not received a decision. There are probably no people left in this class. Class F in the homelessness eligibility regulations is the same as Class E in the allocations regulations: a person who has limited leave in the UK via the Afghan resettlement programme and who is habitually resident.
The Welsh Regulations are now identical to those in England. They are the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014, SI 2603 (W.257). These Regulations govern applications for homelessness help and for an allocation of social housing made on or after 31 October 2014.
If an application was made for homelessness assistance before 31 October 2014, the application should be assessed under the previous Regulations governing eligibility in Wales. Broadly, those Regulations meant that nationals of Macedonia and of Turkey could be eligible, and that EEA nationals were generally eligible provided that they had a right to reside under EEA law and were habitually resident.
On 2nd March 2009, an amendment to the Housing Act 1996 came into effect, introduced by the Housing and Regeneration Act 2008 Schedule 15. It created two types of ‘mixed families’. It applied in both England and Wales and is now contained in Part 7 of the Housing Act 1996 (England) and Part 2 of the Housing (Wales) Act 2014 (Wales).
The first is where the applicant is a person subject to immigration control who is eligible because he or she falls within one of the classes of people specified as eligible at Regulation 5 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 or Regulation 5 of the Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014.
If a member of the applicant’s household is not eligible, then he or she cannot be considered by the local housing authority when it is deciding whether an applicant is homeless or whether the applicant has a priority need. This scenario will normally arise where an adult applicant is eligible but his or her child or children are not eligible, and so the adult applicant will not have a priority need because of the presence of dependent children (Housing Act 1996, s.185(4) and (5) (England); Para 1(5) and (6), Schedule 2, Housing (Wales) Act 2014).
The second is where the applicant is:
- eligible; and
- not subject to immigration control (i.e. usually a UK or EEA citizen with a right to reside); and
- dependant on another person to be defined as in priority need or homeless, and that person would normally be regarded as ineligible.
An example would be a British woman who is married to an overseas student and lives with him and his nine-year old son (her stepson).
The ineligible person is described as a 'restricted person’. There is a special procedure for dealing with applications made by those people affected:
- 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) as appropriate.
- The local authority should seek, so far as is practicable, to bring their duty towards such cases to an end by offering private rented 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 section 193(7AD) or (as the case may be) section 195(4A).'
The same principles apply to Wales (Housing (Wales) Act 2014, s. 63).
You can consult the English Code of Guidance issued to local authorities on how to carry out their homelessness duties; this has useful sections on eligibility and related matters but is now very out of date. Guidance on allocations for England was issued in June 2012 and added to in December 2013 (pdf) and in March 2015 (pdf).
The Welsh Government Code of Guidance for Local Authorities on Allocation of Accommodation and Homelessness (pdf) was issued in April 2015.