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ARTICLES

Nominations: A Practical Issue
David Cowan, Professor of Law and Policy, University of Bristol, and Barrister, Arden Chambers
Housing allocation; Judicial review; Local authorities; Nomination; Social landlords; Statutory reviews

This article is short, necessarily so because there is not much to say. There are no cases about nominations of households by a local authority to a registered social landlord, although there are statutory provisions and some assistance from the relevant Code of Guidance. That is not to say, however, that nominations do not cause problems in practice—they do, and sometimes they can be the cause of considerable ongoing friction in practice between local authority and RSL. Furthermore, it is suggested here that nominations may well be the subject of future challenge. We are able to make these claims on the basis of an empirical study conducted during 2007, funded by the Economic and Social Research Council.1 As part of this research, we interviewed a number of local authority housing managers as well as conducting three in-depth case studies. Our findings go well beyond the limited scope of this article.2

to refuse a nominated household. It is also likely to specify service-level timescales.6 A nomination under Pt 6 must be made in accordance with the allocation scheme set by the local authority, taking into account the reasonable preference categories as well as any households entitled to additional preference.7 The scheme may take account of factors to determine priorities between households, including the financial resources of households, the behaviour of any member of the household which affects that person’s suitability to be a tenant, and local connection.8 Persons may not be entitled to reasonable preference if they or a member of their household have been guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant and, in the circumstances of the case at the time it is considered, they deserve not to be treated as falling within a reasonable preference category.9 RSLs have a duty to co-operate with local authorities ‘‘to such extent as is reasonable in the circumstances’’ in their duties to households with priority.10 However, they are also entitled to exclude households for ‘‘unacceptable behaviour [which] is serious enough to make them unsuitable to be a tenant.’’11 In our study, the usual reasons for exclusions related to past rent arrears or mis-behaviour. For our purposes here, the crucial point lies in the ability of an applicant to request a Pt 6 review.12
Authorities/London Boroughs Association/National Federations of Housing Associations, 1989). 6 For information about good practice in drafting nominations agreements, see ODPM, Effective Co-operation in Tackling Homelessness: Nomination Agreements and Exclusions (London: ODPM, 2004). 7 Housing Act 1996 s.167(2). 8 Housing Act 1996 s.167(2A). 9 Housing Act 1996 s.167(2B)–(2D). 10 Housing Act 1996 s.170. 11 Housing Corporation, The Regulatory Code and guidance (London: Housing Corporation, 2005), para.3.6(e). See also Tenancy Management Eligibility and Evictions, HC Circ. 02/07. 12 Housing Act 1996 s.167(4A)(d).

The legal context
A nomination of a household to be an assured tenant of RSL accommodation is an allocation under Pt 6 of the Housing Act 1996.3 Such nominations may be made in pursuance of an agreement in respect of a proportion of housing accommodation let by an RSL and made available to a person or a number of persons.4 This refers to nominations agreements, which are the usual method of arranging the relationship between local authority and RSL. Such agreements usually specify a percentage of ‘‘true voids’’ that the RSL will make available to the local authority for a Pt 6 nomination.5 The agreement may also specify the criteria by which the RSL is entitled
RES-000-22-1930 (D. Cowan, M. McDermont, K. Morgan). They can be found at http://www.bris.ac.uk/law/research/centresthemes/nominations/index.html [Accessed January 23, 2008]. 3 Housing Act 1996 s.159(2)(c). 4 Housing Act 1996 s.159(4). 5 The term ‘‘true void’’ caused friction during the 1980s and seems to remain a problematic issue: D. Levison and I. Robertson, Partners in Meeting Housing Need: Local Authority Nominations to Housing Associations: Good Practice Guide (London: Association of London
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Volume 11, Issue 2, 2008

understandable system. they mean a transparent.167(4A)(b) and (c). At present. There is no set procedure. 16 Housing Act 1996 s. Maybe. Secondly.166(2).167(4A)(b) and (c).ARTICLES An applicant has that right of review where they are caught by s. of their vacancies through the scheme. 15 Housing Act 1996 s. no Statutory Instrument.14 They also have the right to request that information. but in principle they should. 2003). If I bid for a property and am the bidder who comes out top. it is also likely that the RSL will be showing 13 14 Conclusion There is not much to say by way of conclusion either. Housing Act 1996 s. 17 ODPM. This research was not the usual kind of policy-based ‘‘good practice’’ research—we went out of our way to find ‘‘bad practice’’ so our funding is even more odd. If. It is the forgotten sibling of the Pt 7 right. Why.13 or where the local authority have taken a decision ‘‘about the facts of his case which is likely to be. Hunter. only introduced in its current formulation by amendment made in the Homelessness Act 2002. Code of Guidance on the Allocation of Accommodation (London: ODPM. we were told that nominations agreements are becoming more flexible in the era of choice-based lettings where RSLs are putting a substantial portion. to allow for this. and no apparent time-limits for seeking a review. or has been. This is not the place to rehearse the general findings of the research. where they have been shown the property. they might even have been interviewed by the RSL. The disappearing applicant Our research did not find a single case of an applicant exercising their right to a review of a Pt 6 allocation decision where a nomination had been rejected by the RSL. no right of appeal to the county court on a point of law. No judicial reviews of nominations exist (to our knowledge anyway). para. the notification ‘‘must give clear grounds for the decision. nomination agreements require the local authority to provide more than one nominee from which the RSL is entitled to choose (without giving reasons as to its choice). there may be other reasons why they might not seek a review. Applicants are now likely to infer this information or. However.17 This right of review is quite unlike the Pt 7 right in relation to homeless persons.160A(9). it is to be noted that applicants may request this information—the local authority does not need to provide it as a matter of course.18 However. this may become a problem area. Housing Act 1996 s. Annex 13. or (more usually) ignored. 2008 27 . other households the property—often. However. Cowan and S.16 Annex 13 to the Code of Guidance restates these provisions but does not offer any guidance beyond saying that. The Pt 6 right of review seems to have been forgotten at least in this context as well as in the statutory scheme. where they are ineligible. then please read our final report.2. raise the question. 18 See D. Some. Most usually. Halliday with C. at the moment. but they were unlikely to know that they were the subject of a nomination let alone a problematic one. Nominees were basically written out of the stories we were told in our research because the bureaucracy of the process tended to make them invisible. of course. other reasons). Nominations agreements are being rewritten. will this become a future issue? The answer is because other factors are likely to catch up with nominations. 2002). The issue was regarded as being between the RSL and the local authority.160A(9) and 167(4A)(b). if choice-based lettings mean anything. Perhaps there is no problem. Applicants are unaware of what is being done in their name. no doubt. as suggested. becoming instead statistics or cases as opposed to rights-bearing individuals. If you think that. Issue 2. The Appeal of Internal Review (Oxford: Hart. one finding is relevant because it may explain why no review application was made and why Pt 6 rights have been subverted in practice.15 Local authorities must inform applicants that they have these rights. in relation to ss.167(2B)–(2D). applicants disappeared from the process. Their applications might have been considered by the RSL. Even where they are rights-bearing individuals. Put simply. Volume 11. practice across all our study areas effectively denied nominees their rights. which must be based firmly on the relevant facts of the case’’. then it will be obvious that something has affected my application and my right to review will be available. taken into account in considering whether to allocate housing accommodation to him’’. which have been identified in previous research (and. Not all schemes do so. if not all. If I come out top but am not offered the property. everything is just fine in practice. the applicant themselves did not appreciate that they had even been the subject of a nomination. at least. then. then it is important for local authorities to demonstrate a paper trail of why nominations have been refused going beyond the usual ‘‘property unsuitable’’ line. may well be so aware—for example. First. the scheme may allow for me to be told.