2. The Allocations Framework
This section covers the key legislation and guidance which must be taken into account when developing a social housing allocation policy.
By working through this section, readers will:
- be aware of the legislation governing the allocation of social housing in Scotland.
- be familiar with relevant statutory guidance relating to the allocation of social housing in Scotland.
- know the outcomes and standards in the Scottish Social Housing Charter that are relevant to the allocation of social housing.
- have an awareness of other relevant legislation that should be taken into account when reviewing allocation policies and procedures.
2.1 Legislative framework
The legislative and regulatory framework for the allocation of social rented sector homes has evolved over time, including through the Housing (Scotland) Act 1987 ("the 1987 Act") and the Housing (Scotland) Act 2001 ("the 2001 Act") and the Housing (Scotland) Act 2014 ("the 2014 Act").
Allocation policies will also need to comply with the homelessness rules set out in Part II of the 1987 Act (as amended by the 2001 Act and the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act")).
Landlords also have a duty to make and publish rules covering priority of allocation of houses, transfers and exchanges (section 21 of the 1987 Act, as amended by section 155 of the Leasehold Reform, Housing and Urban Development Act 1993 and the 2001 Act). This means that any allocation policy should set out clearly how the landlord will decide on priority for housing.
Landlords should take any other relevant legislation into account when developing or reviewing their allocation policy.
Although there is a clear legal framework within which allocation policies must operate, within these constraints, landlords have considerable discretion to develop their allocation policy and practice to meet the needs of the communities in which they operate. This Guide sets out the requirements for complying with legislation and statutory guidance and also covers those areas of policy and practice where landlords can develop their own responses.
2.2 Statutory guidance
There is a range of statutory guidance which should be referred to when reviewing and amending allocation policies and procedures. In particular, landlords should be aware of:
- The Legal Framework for Social Housing Allocations, Statutory Guidance for Social Landlords. Housing (Scotland) Act 2014. (Scottish Government 2018). Available from the Scottish Government's website at: https://www.gov.scot/policies/social-housing/
- Minimum Period for Applications to remain in force - Suspensions Under Section 20B of the Housing (Scotland) Act 1987. Statutory Guidance. Housing Scotland Act 2014 (Scottish Government 2018). Available from the Scottish Government's website at: https://www.gov.scot/policies/social-housing/
Landlords may also wish to refer to the Scottish Government's Code of Guidance on Homelessness 2005. The Code is available at: https://beta.gov.scot/publications/code-guidance-homelessness/
The Code of Guidance 2005 remains the primary source for homelessness related policy and practice at the time of publication of this Guide. However, the work of the Homelessness and Rough Sleeping Action Group (HARSAG) 2018 will lead to policy and practice-related change. This could, in turn, have an impact on landlord's allocation-related policy and practice.
In 2017, the Homelessness and Rough Sleeping Action Group (HARSAG) was asked to provide recommendations to Scottish Government Ministers on the actions and solutions needed to eradicate rough sleeping and transform the use of temporary accommodation in Scotland.
In May 2018, HARSAG published an interim report: Transforming the use of Temporary Accommodation in Scotland. Amongst the recommendations in the report were that there should be a clear national direction of travel to transition to a model of 'rapid rehousing' by default across Scotland. By 'rapid re-housing by default' they mean:
- someone who is rough sleeping or at risk of rough sleeping should be housed in settled mainstream accommodation as quickly as possible.
- someone who has complex needs and is rough sleeping or at risk of rough sleeping should be housed in settled mainstream accommodation with the necessary wraparound support as quickly as possible; and
- someone who is rough sleeping or at risk of rough sleeping for whom rapid rehousing or Housing First would not yet be suitable should be provided with accommodation that deals with their particular needs with the specialist support that is required.
HARSAG also recommended setting targets for rehousing and that 5-year rapid re-housing transition plans would be developed by each local authority area. These should include measures for increasing access to settled accommodation, which may involve upping the proportion of social lets to homeless households, on a transitional basis, to address the 'backlog' of temporary accommodation residents that have built up in some areas. This should form part of a broader 'whole housing system' approach which seeks to maximise the full range of appropriate move-on options available to homeless households.
The Group's final report, Ending Homelessness: The report on the final recommendations of the Homelessness and Rough Sleeping Action Group was published in June 2018.
The report states that: Allocations policies for social housing should ensure that homelessness is not the main way to be allocated social housing, while recognising that appropriate levels of reasonable preference should reflect the urgency of need. This is not a recommendation to reintroduce the concept of Priority Need as abolished by legislation in 2012 but is a recognition that housing allocations can be the last line between a household being homeless and not being homeless and this needs to be prioritised.
Further information, including any further reports or recommendations made by HARSAG, are available from the Scottish Government's website at: https://beta.gov.scot/groups/homelessness-prevention-and-strategy-group/
This Guide sets out the requirements to comply with legislation and regulation, but also covers those areas of policy and practice for which landlords can develop their own responses.
2.3 Scottish Social Housing Charter
The Scottish Social Housing Charter (the Charter), sets out the outcomes and standards that all social landlords should be delivering for their tenants and other customers.
The following Charter Outcomes are of direct relevance to allocation policy and practice:
- Outcome 1: Every tenant and other customer has their individual needs recognised, is treated fairly and with respect, and receives fair access to housing and housing services.
- Outcome 2: Tenants and other customers find it easy to communicate with their landlord and get the information they need about their landlord, how and why it makes decisions and the services it provides.
- Outcome 3: Social landlords manage their businesses so that tenants and other customers find it easy to participate in and influence their landlord's decisions at a level they feel comfortable with.
- Outcome 7: People looking for housing get information that helps them make informed choices and decisions about the range of housing options available to them.
- Outcome 8: Tenants and people on housing lists can review their housing options.
- Outcome 9: People at risk of losing their home get advice on preventing homelessness.
Access to social housing
- Outcome 10: People looking for housing find it easy to apply for the widest choice of social housing available and get the information they need on how the landlord allocates homes and their prospects of being housed.
- Outcome 11: Social landlords ensure that tenants get the information they need on how to obtain support to remain in their home; and ensure suitable support is available, including services provided directly by the landlord and by other organisations.
- Outcome 12: Homeless people get prompt and easy access to help and advice; are provided with suitable, good-quality temporary or emergency accommodation when this is needed; and are offered continuing support to help them get and keep the home they are entitled to.
The full Scottish Social Housing Charter April 2017 can be found on the Scottish Government's website at: https://www.gov.scot/publications/scottish-social-housing-charter-april-2017/
The Scottish Housing Regulator (SHR) monitors, assesses and reports on landlords' performance against the Charter. All social landlords submit an Annual Return on the Charter (ARC) to the SHR and the SHR publishes performance information for each landlord at: https://www.scottishhousingregulator.gov.uk/find-and-compare-landlords.
2.4 Equality and human rights
Landlords may find it helpful to refer to the Equality Act 2010 - Handbook for Advisors produced by the Equality and Human Rights Commission Scotland (EHRC Scotland) when developing or reviewing their allocation policy and practice. The Handbook can be found on the EHRC's website at: https://www.equalityhumanrights.com/en/publication-download/equality-act-2010-handbook-advisors
Landlords should also refer to the SHR's most recent requirements of landlords, currently available at: https://www.scottishhousingregulator.gov.uk/publications/equalities-statement-equalities-impact-assessment-regulatory-framework-consultation
Equality Act 2010 and the Public Sector Equality Duty
The Equality Act 2010 provides the legal framework to protect the rights of individuals from unfair treatment and promotes a fair and more equal society. It places a duty on all businesses and organisations not to discriminate against a person because of one or more of their protected characteristics, which are:
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- religion or belief;
- sex; and
- sexual orientation.
The interconnected nature of discrimination means that it can take place because of several characteristics which operate and interact with each other at the same time. If this happens, someone will be experiencing multiple discrimination.
Whilst age is a protected characteristic under the Equalities Act 2010 this protection does not apply in relation to the disposal and management of premises. This allows landlords to take account of age in allocating properties in very limited circumstances (see section 7.1).
EHRC Scotland's Equality Act 2010 Handbook for Advisors explains the duty to make reasonable adjustments for disabled people is an anticipatory duty in the context of services and public functions.
This means that a social landlord must anticipate the needs of potentially disabled applicants and tenants.
The 2010 Act places a duty to make reasonable adjustments:
1. Where a provision, criterion or practice puts disabled people at a substantial disadvantage compared to those who are not disabled, to take reasonable steps to avoid the disadvantage.
2. Where a physical feature puts disabled people at a substantial disadvantage, compared with people who are not disabled, to avoid that disadvantage.
3. Where not providing an auxiliary aid puts disabled people at a substantial disadvantage compared with people who are not disabled, to provide that auxiliary aid.
The Equality Act 2010 introduced a public-sector equality duty (PSED) which requires public authorities to have due regard to the need to eliminate discrimination, promote equality of opportunity and foster good relations. Organisations not listed in the Equality Act 2010, such as RSLs, must also comply with the public sector equality duty if they carry out public functions.
The Scottish Government has supplemented that general duty through the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended). The 2012 Regulations are aimed at supporting the bulk of Scottish public authorities to improve implementation of the PSED by requiring them to: report progress on mainstreaming equalities; propose and publish equality outcomes; assess policies and practices from the perspective of equality; and publish employee information on pay and occupational segregation. They are also required to:
- take reasonable steps to involve people who share a relevant protected characteristic or the representatives of the interests of these people.
- consider relevant evidence relating to people who share a protected characteristic.
There are specific duties which also require some public authorities to publish schemes setting out how they will promote equality, including their method for formal impact assessment of policies and practices. While RSLs are not subject to these specific duties, the
Equality and Human Rights Commission (the enforcement body for these duties) encourages other bodies to take on board the principle of these duties and prepare equality impact assessments where appropriate. Further information can be found in the Equality and Human Rights Commission's Services, Public functions and Associations: Statutory Code of Practice: https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf.
The right to housing is a human right enshrined in international law. The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights recognise the right to housing as part of the right to an adequate standard of living. The UK and its public administrations and bodies, including the Scottish Government and local authorities in Scotland, therefore have an obligation to protect and promote people's right to adequate housing. In its General Comment No. 4, the UN Committee on Economic, Social and Cultural Rights provides an authoritative interpretation of the right to adequate housing, which must be accessible, affordable, habitable, and culturally adequate, and provide access to infrastructure, facilities and services.
The Human Rights Act 1998 confers rights and freedoms granted by the European Convention on Human Rights. The rights protected by the Act include the right to:
- respect for private and family life, home and correspondence;
- freedom of religion or belief;
- freedom of expression; and
- peaceful enjoyment of your possessions.
Landlords need to take into account the law on allocations, equality and human rights, as well as regulatory standards when deciding on their allocation policies, processes and procedures.
Any social housing allocation policy should be compliant with a range of key legislation and statutory guidance including:
- Sections 19 and 20 of the Housing (Scotland) Act 1987, as amended by Sections 9 and 10 of the Housing (Scotland) Act 2001 and the Housing (Scotland) Act 2014.
- the Statutory Guidance supporting the 2014 Act.
Landlords should also be aware of any Code of Practice on Homelessness. As at 2018, this remains the Code of Guidance on Homelessness 2005. Landlords should keep up-to-date with any emerging policy in this area.
Allocation policies should also reflect the Scottish Social Housing Charter.
Landlords should ensure that their allocation policy complies with the relevant equality and human rights duties.
Email: Claire McHarrie