Government to consult on social housing ban for up to five years for those sanctioned for ASB, plus new UK and local connection tests

January 30, 2024

The Government has launched a consultation on a package of reforms to social housing in England that could see those who commit anti-social behaviour (ASB) banned from social housing for up to five years, and lead to the introduction of new UK connection and local connection tests.

In relation to ASB, the Department for Local Government, Housing and Communities (DLUHC) consultation paper says the Government intends to mandate a new qualification test that would disqualify social housing applicants who have unspent ASB convictions or civil sanctions in the area that the anti-social behaviour was committed.

“This would require local housing authorities to check whether there is evidence of an applicant having been subject to specified anti-social behaviour sanctions," it said.

The ASB proposed for inclusion in this test aligns with behaviour that would lead to eviction under the absolute (mandatory) grounds for possession for secure tenancies (see also the grounds for possession for assured tenancies). The proposed sanctions for ASB include both criminal and civil offences, as well as eviction, and are as follows:

breaching a criminal behaviour order under section 30 of the Anti-social Behaviour, Crime and Policing Act 2014 or section 339 of the Sentencing Code (criminal conviction);
breaching a noise abatement notice or court abatement order (criminal conviction);
breaching a civil injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014 (civil order);
previously having been a tenant of a dwelling-house that was subject to a closure order lasting over 48 hours (civil order);
previously having been a tenant who was evicted for anti-social behaviour under an absolute ground for possession (section 84A of the Housing Act 1985/see also ground 7A in Schedule 2 to the Housing Act 1988) or a discretionary ground for possession (Housing Act 1985: nuisance, ground 2; riot, ground 2ZA; domestic violence, ground 2A; see also the Housing Act 1988: nuisance, ground 14; riot, ground 14ZA; domestic violence, ground 14A) (civil order).

DLUHC said the Government intends that where an applicant has received a relevant ASB sanction, they are disqualified from social housing allocation from the local housing authority or authorities in England where the behaviour takes place. “This disqualification would be for a set period after the anti-social behaviour conviction or sanction, or until the date on which their conviction (if they have one) is spent, whichever is sooner. This ensures the approach to spent convictions is in line with the Rehabilitation of Offenders Act 1974.”

The Government is considering a disqualification period between 1 and 5 years and proposes it should be longer for people who receive a criminal sanction compared to a civil sanction.

DLUHC said it is considering whether to exempt some groups from the ASB test, including those with a condition or disability that was a relevant contributing factor to the anti-social behaviour, and domestic abuse survivors, where the domestic abuse was a mitigating factor in the anti-social behaviour.

The consultation also reveals Government plans to introduce a new UK connection test at the eligibility stage of the social housing allocation process.

“This is to ensure that social housing is given to those who have a close connection to the country,” DLUHC said, adding that the proposed test would replace the existing eligibility rules.

To be eligible, the test would require that an applicant for social housing shows either:

(a) that they are a British citizen, Irish citizen, Commonwealth citizen with a right of abode, or EEA or Swiss citizen with equal treatment rights;

(b) that they have recourse to public funds and have been lawfully resident in the UK for a continuous period of ten years; or

“The new test would help to ensure that more social housing is allocated to British citizens and those who have a strong connection to the country,” DLUHC said.

It added: “We propose that one way to meet the UK connection test is that applicants must be lawfully resident in the UK for ten years. Current immigration rules provide that the time which most non-British citizens must be lawfully resident in the UK for before they can apply for settlement or become naturalised as a British citizen ranges from immediately to ten years. To ensure the test has the greatest effect, we propose to set the test at the upper limit of that range.”

New applicants and those on a waiting list would need to satisfy the new test, or be part of an exempted group, before they are allocated social housing, DLUHC said.

The Government also intends to mandate a new test for local connection at qualification stage to establish a minimum national level.

“We intend to require applicants to have a connection with the local housing authority area for at least two years before they can access social housing there,” DLUHC said, adding that local housing authorities would be able to set a longer period than two years, if desired, allowing for local needs.

“Requiring that every social housing applicant must pass a local connection test will incentivise households to make sustained links to their communities, whether through work, family or residence, before they qualify for social housing,” DLUHC claimed.

“Setting a minimum national level will improve the consistency in how these tests are applied, helping to reduce the disparity between local areas during the social housing application process. The new system will no longer incentivise people to consider moving away from the area where they currently live, and the disruption this brings, to apply for social housing in an area without a local connection test.”

The consultation paper also reveals that the Government intends to use a broader definition for local connection than residence, in order to capture employment and family associations as well.

“We propose using the same elements of local connection as in section 199 of the Housing Act 1996, but for the purposes of accessing social housing, households will need to demonstrate they have fulfilled at least one of the elements for two years,” DLUHC said.

This definition would mean that a person has a local connection:

because they are, or in the past were, normally resident there for a period of two years, and that residence is or was of their own choice;
they are employed there and have been for a period of two years;
because of family associations, and those family members have lived in the area for a period of two years; or
because of special circumstances.

The Government intends to maintain the existing exemptions from local connection tests for members and veterans of the UK armed forces and proposes to add the following additional exemptions:

Care leavers
Domestic abuse victims
Those who have arrived or will arrive as part of the UK Resettlement Scheme, Afghan Relocations and Assistance Policy Scheme, Afghan Citizens Resettlement Scheme, and the Ukraine temporary visa schemes (the Ukraine Sponsorship Scheme (Homes for Ukraine), Ukraine Family Scheme and Ukraine Extension Scheme) to align with the exemption for the UK connection test.

Earlier this month Local Government Lawyer reported on Hounslow Council agreeing to review a residence criterion in its housing allocation scheme that required applicants to have lived in the borough for five years, after a legal challenge brought by a refugee who had fled severe gender-based violence in her home country found it amounted to unlawful discrimination.

Other proposals DLUHC is consulting on include:

An income test – setting thresholds for applicants and those on a waiting list to qualify for social housing. “This will have no impact on existing tenants, but rather will ensure new tenancies are reserved for those who, at the point of signing for a new social home, would most struggle to afford private accommodation.”
A terrorism test – terrorist offenders with unspent convictions will not qualify for social housing unless excluding them would increase the risk to public safety.
A fraudulent declaration test - mandating a period of disqualification for those who knowingly or recklessly make false statements when applying for social housing.

There is also a proposal to apply the new eligibility and qualification tests not only to new applicants but also to those currently on a social housing waiting list.

Housing Minister Lee Rowley said: “Today we are proposing further steps to make the allocation of social housing fairer for people. If you abuse the system, making peoples’ lives a misery or actively work against our British values, you are making a choice – such choices will have consequences and our proposals seek to stop such people getting a social home.

“The message is clear: play by the rules, pay in and we will support you. If you choose not to, this country is not going to be a soft touch.”

He added: “The public want to know decent and hardworking people that have contributed to this country will be prioritised for new social tenancies. People already living in social homes want to know that anyone moving near them will be respectful of their neighbours with their communities protected from those who persistently break the law.

“That is why it is right that the finite resource of social housing is allocated fairly and local law-abiding citizens in need have more access to a home in their own communities.”

In his foreword to the consultation paper, the Minister also said: "It is the case that qualification tests vary between each local authority area: they can be tailored to meet local needs. These differences in how qualification tests are used and applied by local housing authorities can, however, sometimes result in confusion for social housing applicants. The proposals in our consultation will seek to end this postcode lottery while still allowing local housing authorities flexibility on the ground."

Responding to the announcement, Cllr Darren Rodwell, Housing spokesperson for the Local Government Association said: “The vast majority of social housing lettings go to UK nationals and many councils already have policies relating to anti-social behaviour, criminal behaviour, rent arrears and income thresholds in their allocation policies. The LGA has raised concerns that restricting eligibility criteria for social housing and extending qualification periods could result in a rise in homelessness.

“With almost 1.3 million households on council housing waiting lists and record numbers in temporary accommodation, this is symptomatic of our wider housing shortage. We are calling on the Government to use the Budget to grant councils the flexibilities needed to resume their historic role as a major builder of affordable homes.

“This can be done by implementing our six-point plan for social housing, including further reform of Right to Buy by allowing councils to permanently retain 100 per cent of receipts.”

The consultation runs until 26 March 2024.

The policy proposals set out in the consultation apply to the social rented sector in England and will inform changes to secondary legislation regarding eligibility and qualification criteria under Part 6 of the Housing Act 1996, DLUHC said. “We are not proposing to change the rules or guidance on reasonable and additional preference that local housing authorities follow to prioritise allocations.”