Allocation of accommodation: guidance for
local housing authorities in England
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Scope of guidance and definition of an allocation
Chapter 2 Overview of the amendments to Part 6 made by
Framing an allocation scheme
Private Registered Providers and contracting out
Indicators of criteria in reasonable preference
Rights to reside in the UK derived from EU Law
Social housing is of enormous importance - for the millions who live in it now, and the
many more who look to it to provide the support they need in future – and the way it is
allocated is key to creating communities where people choose to live and are able to
Under the previous Government housing waiting lists almost doubled, with many people
left languishing on waiting lists for years. That is why we have taken decisive steps to
tackle this problem, including an affordable homes programme set to exceed
expectations and deliver up to 170,000 new homes and lever in £19.5 of new
investment – in stark contrast to the net reduction of 421,000 affordable homes for rent
from 1997 to 2010. Through the Localism Act 2011 we have introduced the most radical
reform to social housing for a generation.
The new freedoms in the Localism Act which allow councils to better manage their
waiting lists and promote mobility for existing social tenants came into force on 18 June.
This guidance will assist councils to make full use of these new freedoms - and the
existing flexibilities within the allocation legislation - to encourage work and mobility, and
to tailor their allocation priorities to meet local needs and local circumstances.
The guidance makes clear that we expect social homes to go to people who genuinely
need them, such as hard working families and those who are looking to adopt or foster
a child in need of a stable family; and not to those who do not, such as people who
already own a home that is suitable for them to use.
Through the Military Covenant, the Government has made clear its responsibility to
support our Armed Forces in return for the important contribution they make to the
country. This guidance will assist councils to ensure that Service families get the
priority for social housing they deserve.
The guidance encourages councils to adopt a modern measure of overcrowding and
encourages them to give appropriate priority to tenants who want to downsize, helping
them move to smaller, more manageable properties and freeing up precious social
housing for crowded families.
I know that an increasing number of councils are already starting to think creatively
about how social housing can change people’s lives. This guidance will help others
It is half the size of the previous guidance it replaces and is evidence of the
Government’s commitment to ‘cutting red tape’. It is also an important part of the
Government’s commitment to make the social housing system more flexible and
responsive, to get the best out of our four million social homes, and to make the system
fairer for all.
Rt Hon Grant Shapps, MP
link to page 6 link to page 6
Scope of guidance and definition of an allocation
This guidance is issued to local housing authorities (‘housing authorities’) in England
under s.169 of the Housing Act 1996 (‘the 1996 Act’). Housing authorities are required
to have regard to it in exercising their functions under Part 6 of the 1996 Act (‘Part 6’). In
so far as this guidance comments on the law, it can only reflect the Department's
understanding at the time of issue.
This guidance replaces all previous guidance on social housing allocations.
Definition of an ‘allocation’
For the purposes of Part 6, a housing authority allocates accommodation when it:
• selects a person to be a secure or introductory tenant of accommodation held by
• nominates a person to be a secure or introductory tenant of accommodation held
by another housing authority
• nominates a person to be an assured tenant of accommodation held by a Private
Registered Provider (or Registered Social Landlord in Wales) (s.159(2))
The term ‘assured tenant’ includes a person with an assured shorthold tenancy,
including of an Affordable Rent property1
. ‘Secure tenant’ includes a person with a
flexible tenancy granted under s.107A of the Housing Act 19852
Allocations to existing tenants
Provisions in relation to existing tenants are contained in s.159(4A) and (4B). These
provide that Part 6 does not apply to an allocation of accommodation by a housing
authority to a tenant of a local authority or Private Registered Provider unless:
• the allocation involves a transfer made at the tenant’s request, and
• the authority is satisfied that the tenant has reasonable preference.
1 Affordable Rent is not subject to the national rent regime but is subject to other rent controls that require
a rent (including service charges, where applicable) of no more than 80% of the local market rent.
2 Inserted by s.154 of the Localism Act 2011.
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Accordingly, social tenants applying to the housing authority for a transfer who are
considered to have reasonable preference for an allocation must be treated on the
same basis as new applicants in accordance with the requirements of s.166A(3).
Transfers at the tenant’s request, where the authority is satisfied the tenant does not
have reasonable preference, do not fall within Part 6 and housing authorities may set
their own transfer policies in relation to these tenants. Authorities should consider how
to make the best use of this flexibility. Providing tenants with greater opportunities to
move within the social sector can help promote social and economic mobility and make
the best use of social housing stock.
Authorities should consider the importance of giving social tenants who under-
occupy their accommodation appropriate priority for a transfer. This will be important in
light of the measure in the Welfare Reform Act 2012 which will reduce Housing Benefit
entitlement for working age social sector tenants who under-occupy their property
(measured in accordance with the Local Housing Allowance size criteria) from April
. Authorities should also consider whether there are other provisions that might
make it more difficult for under-occupiers to move, such as a prohibition against tenants
with minor rent arrears transferring, and the scope for removing or revising these in
relation to under-occupiers.
Housing authorities may decide to operate a separate allocation system for
transferring tenants who are not in the reasonable preference categories (with a
separate waiting list and lettings policy) or to continue with a single allocation system
which covers all applicants but which, for example, rewards transferring tenants with a
good tenancy record, or gives a degree of priority to those who want to move for work.
Transfers that the housing authority initiates for management purposes do not fall
within Part 6. These would include a temporary decant to allow repairs to a property to
be carried out. The renewal of a flexible tenancy in the same property also does not fall
within Part 6; neither do mutual exchanges between existing tenants, including
exchanges between secure and assured tenants and those with flexible tenancies
(under s.107A of the Housing Act 1985). Other specific exemptions from the provisions
of Part 6 are set out in s.160 of the 1996 Act and the Allocation of Housing (England)
Regulations 2002 (SI 2002/3264).
3 The LHA size criteria allow one bedroom for each: adult couple; any other adult (aged 16 or over); two
children of the same sex aged 10 or over; two children under 10 regardless of sex; any other child.
Overview of the amendments to Part 6 made by the
Localism Act 2011
The Localism Act 2011 introduces significant amendments to Part 6. The main
policy objectives behind these amendments are to:
• enable housing authorities to better manage their housing waiting list by giving
them the power to determine which applicants do or do not qualify for an
allocation of social housing. Authorities will be able to operate a more focused list
which better reflects local circumstances and can be understood more readily by
local people. It will also be easier for authorities to manage unrealistic
expectations by excluding people who have little or no prospect of being
• make it easier for existing social tenants to move by removing the constraints of
Part 6 from those social tenants who apply to the housing authority for a transfer,
unless they have reasonable preference. Housing authorities will be able to strike
a balance between meeting the needs of existing tenants and new applicants for
social housing, while making best use of their stock. Part 6 continues to apply to
transferring tenants with reasonable preference, ensuring they continue to
receive priority under the authority’s allocation scheme
• maintain the protection provided by the statutory reasonable preference criteria –
ensuring that priority for social housing goes to those in the greatest need
The detailed changes to Part 6 contained in the Localism Act 2011 are set out in the
By virtue of new s.159(4B) the term ‘allocation’ continues to apply to a transfer at
the request of an existing secure, introductory or assured tenant where the authority is
satisfied that he or she has ‘reasonable preference’ for an allocation. Existing secure,
introductory and assured tenants seeking a transfer who are not considered to have
reasonable preference are now outside the scope of Part 6 (s.159(4A).
New s.160ZA replaces s.160A in relation to allocations by housing authorities in
England. Social housing may only be allocated to ‘qualifying persons’ and housing
authorities are given the power to determine what classes of persons are or are not
qualified to be allocated housing (s.160ZA(6) and (7)). These requirements are in
addition to the provisions on eligibility in respect of persons from abroad (s.160ZA(2)
and (4)) which continue to be set centrally. The power for a housing authority to decide
that an applicant is to be treated as ineligible by reason of unacceptable behaviour
serious enough to make him unsuitable to be a tenant is redundant and has therefore
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New s.166A requires housing authorities in England to allocate accommodation in
accordance with a scheme which must be framed to ensure that certain categories of
applicants are given reasonable preference. With certain exceptions, s.166A replicates
the provisions in s.167 which continues to apply to allocations by housing authorities in
Wales. Section 166A(9) includes a new requirement for an allocation scheme to give a
right to review a decision on qualification in s.160AZ(9), and to be informed of the
decision on the review and the grounds for it. This is in addition to the existing right to
review a decision on eligibility. Section 166A(12) is new and provides that authorities
must have regard to their homelessness and tenancy strategies when framing their
The provisions in s.167 which allow for no preference to be given to a person guilty
of serious unacceptable behaviour (s.167(2B) – (2D)) are not reproduced in s.166A.
However, the power to take behaviour – whether good or poor - into account in
determining priorities between people in the reasonable preference categories remains
The requirement for an allocation scheme to contain a statement of the authority’s
policy on offering a choice of accommodation or the opportunity to express preferences
about their accommodation is retained (s.166A(2)). However, the requirement to
provide a copy of this statement to people to whom they owe a homelessness duty
(under s.193(3A) or s.195(3A) of the 1996 Act) is repealed4
4 Section 148(2) and s.149(3) of the Localism Act 2011.
Eligibility and qualification
Housing authorities must consider all applications made in accordance with the
procedural requirements of the authority’s allocation scheme (s.166(3)). In considering
applications, authorities must ascertain:
• if an applicant is eligible for an allocation of accommodation, and
• if he or she qualifies for an allocation of accommodation
An applicant may be ineligible for an allocation of accommodation under s.160ZA(2)
or (4). Authorities are advised to consider applicants’ eligibility at the time of the initial
application and again when considering making an allocation to them, particularly where
a substantial amount of time has elapsed since the original application.
Under s.160ZA(1)(b), a housing authority must not grant a joint tenancy to two or
more people if any one of them is a person from abroad who is ineligible. However,
where two or more people apply and one of them is eligible, the authority may grant a
tenancy to the person who is eligible. In addition, while ineligible family members must
not be granted a tenancy, they may be taken into account in determining the size of
accommodation which is to be allocated.
The eligibility provisions do not apply to applicants who are already secure or
introductory tenants or assured tenants of a Private Registered Provider. Most
transferring tenants fall outside the scope of the allocation legislation (s.159(4A)); while
those who are considered to have reasonable preference for an allocation are
specifically exempted from the eligibility provisions by virtue of s.160ZA(5).
Persons from abroad
A person may not be allocated accommodation under Part 6 if he or she is a person
from abroad who is ineligible for an allocation under s.160ZA of the 1996 Act. There are
two categories for the purposes of s.160ZA:
(i) a person subject to immigration control
- such a person is not eligible for an
allocation of accommodation unless he or she comes within a class prescribed in
regulations made by the Secretary of State (s.160ZA(2)), and
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(ii) a person from abroad other than a person subject to immigration control
regulations may provide for other descriptions of persons from abroad who, although
not subject to immigration control, are to be treated as ineligible for an allocation of
The regulations setting out which classes of persons from abroad are eligible or
ineligible for an allocation are the Allocation of Housing and Homelessness (Eligibility)
(England) Regulations 2006
(SI 2006 No.1294) (’the Eligibility Regulations’).
Persons subject to immigration control
The term ‘person subject to immigration control’ is defined in s.13(2) of the Asylum
and Immigration Act 1996 as a person who under the Immigration Act 1971 requires
leave to enter or remain in the United Kingdom (whether or not such leave has been
The following categories of persons do not require leave to enter or remain in the
(i) British citizens
(ii) certain Commonwealth citizens with a right of abode in the UK
(iii) Irish citizens, who are not subject to immigration control in the UK because
the Republic of Ireland forms part of the Common Travel Area (see paragraph
3.11 (iii) below) with the UK which allows free movement
(iv) EEA nationals5
, and their family members, who have a right to reside in the
UK that derives from EU law. Whether an EEA national (or family member) has a
particular right to reside in the UK (or another Member State) will depend on the
circumstances, particularly their economic status (e.g. whether he or she is a
worker, self-employed, a student, or economically inactive)
(v) persons who are exempt from immigration control under the Immigration
Acts, including diplomats and their family members based in the UK, and some
Any person who does not fall within one of the four categories in paragraph 3.11 will
be a person subject to immigration control and will be ineligible for an allocation of
accommodation unless they fall within a class of persons prescribed by regulation 3 of
the Eligibility Regulations (see further below).
If there is any uncertainty about an applicant’s immigration status, housing
authorities are recommended to contact the UK Border Agency (UKBA). UKBA provides
a service to housing authorities to confirm the immigration status of an applicant from
abroad (non asylum seekers) by email at firstname.lastname@example.org. Where UKBA indicates
5 European Economic Area nationals are nationals of any EU member state (except the UK), and nationals
of Iceland, Norway, Liechtenstein and Switzerland.
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the applicant may be an asylum seeker, enquiries of their status can be made to the
Immigration Enquiry Bureau helpline on 0870 606 7766.
Regulation 3 of the Eligibility Regulations provides that the following classes of
persons subject to immigration control are eligible for an allocation of accommodation:
i) a person granted refugee status
: granted 5 years' limited leave to remain in the
ii) a person granted exceptional leave to enter or remain in the UK without
condition that they and any dependants should make no recourse to public funds
granted for a limited period where there are compelling humanitarian or
compassionate circumstances for allowing them to stay. However, if leave is
granted on condition that the applicant and any dependants are not a charge on
public funds, the applicant will not be eligible for an allocation of accommodation.
Exceptional leave to remain (granted at the Secretary of State's discretion
outside the Immigration Rules) now takes the form of ’discretionary leave’.
iii) a person with current leave to enter or remain in the UK with no condition or
limitation, and who is habitually resident in the UK, the Channel Islands, the Isle
of Man or the Republic of Ireland
(the Common Travel Area): such a person will
have indefinite leave to enter (ILE) or remain (ILR) and is regarded as having
settled status. However, where ILE or ILR status is granted as a result of an
undertaking that a sponsor will be responsible for the applicant’s maintenance
and accommodation, the person must have been resident in the Common Travel
Area for five years since the date of entry - or the date of the sponsorship
undertaking, whichever is later - to be eligible. Where all sponsors have died
within the first five years, the applicant will be eligible for an allocation of
iv) a person who has humanitarian protection granted under the Immigration
a form of leave granted to persons who do not qualify for refugee status
but would face a real risk of suffering serious harm if returned to their state of
origin (see paragraphs 339C-344C of the Immigration Rules (HC 395))
Other persons from abroad who may be ineligible for an allocation
By virtue of regulation 4 of the Eligibility Regulations, a person who is not subject
to immigration control and who falls within one of the following descriptions is to be
treated as a person from abroad who is ineligible for an allocation of accommodation:
(i) a person who is not habitually resident in the Common Travel Area (subject to
certain exceptions - see paragraph 3.14 below)
(ii) a person whose only right to reside in the UK is derived from his status as a
jobseeker (or his status as the family member of a jobseeker). ’Jobseeker’ has
6 Inserted by the Allocation of Housing and Homelessness (Miscellaneous Provisions) (England)
link to page 13
the same meaning as in regulation 6(1) of the Immigration (European Economic
Area) Regulations 2006 (SI 2006/1003) (’the EEA Regulations’).
(iii) a person whose only right to reside in the UK is an initial right to reside for a
period not exceeding three months under regulation 13 of the EEA Regulations
(iv) a person whose only right to reside in the Common Travel Area is a right
equivalent to one of the rights mentioned in (ii) or (iii) above and which is derived
from EU Treaty rights
See annex 2 for guidance on rights to reside in the UK derived from EU law.
The following persons from abroad are eligible for an allocation of accommodation
even if they are not habitually resident in the Common Travel Area:
a) an EEA national who is in the UK as a worker (which has the same meaning
as in regulation 6(1) of the EEA Regulations)
b) an EEA national who is in the UK as a self-employed person (which has the
same meaning as in regulation 6(1) of the EEA Regulations)
c) a person who is treated as a worker for the purposes of regulation 6(1) of the
EEA Regulations, pursuant to the Accession (Immigration and Worker
Authorisation) Regulations 2006 (ie nationals of Bulgaria and Romania required
to be authorised by the Home Office to work until they have accrued 12 months
uninterrupted authorised work)7
d) a person who is a family member of a person referred to in (a) to (c) above
e) a person with a right to reside permanently in the UK by virtue of regulation
15(c), (d) or (e) of the EEA Regulations
f) a person who left Montserrat after 1 November 1995 because of the effect of
volcanic activity there
g) a person who is in the UK as a result of his deportation, expulsion or other
removal by compulsion of law from another country to the UK. This could include
EEA nationals, if the person was settled in the UK and exercising EU Treaty
rights prior to deportation from the third country. Where deportation occurs, most
countries will signal this in the person’s passport.
A person who is no longer working or no longer in self-employment will retain his or
her status as a worker or self-employed person in certain circumstances. However,
accession state workers requiring authorisation will generally only be treated as a
worker when they are actually working as authorised and will not retain ‘worker’ status
between jobs until they have accrued 12 months continuous authorised employment.
‘Family member’ does not include a person who is an extended family member who is
treated as a family member by virtue of regulation 7(3) of the EEA Regulations (see
7 As of 1 May 2011, nationals of the 8 Eastern European countries (A8 nationals) which acceded to the EU
in 2004 are no longer required to register with the Workers Registration Scheme in order to work in the UK.
Regulation 4(2)(c) of the Eligibility Regulations no longer applies to applications from A8 workers as of that
date. Rather applications from A8 workers should be considered on the same basis as those from other EU
workers under regulation 4(2)(a).
annexes 2 and 3 for further guidance).
The term ’habitual residence’ is intended to convey a degree of permanence in the
person’s residence in the Common Travel Area; it implies an association between the
individual and the place of residence and relies substantially on fact.
Applicants who have been resident in the Common Travel Area continuously
during the two year period prior to their housing application are likely to be habitually
resident (periods of temporary absence, e.g. visits abroad for holidays or to visit
relatives may be disregarded). Where two years’ continuous residency has not been
established, housing authorities will need to conduct further enquiries to determine
whether the applicant is habitually resident (see annex 4 for further guidance).
Housing authorities may only allocate accommodation to people who are defined
as ‘qualifying persons’ (s.160ZA(6)(a)). Subject to the requirement not to allocate to
persons from abroad who are ineligible and the exception for members of the Armed
and Reserve Forces in paragraph 3.27 below, a housing authority may decide the
classes of people who are, or are not, qualifying persons.
Housing authorities are encouraged to adopt a housing options approach as part of
a move to a managed waiting list. A strong and pro-active housing options approach
brings several benefits: people are offered support to access the housing solution which
best meets their needs (which might be private rented housing, low cost home
ownership or help to stay put); expectations about accessing social housing are
properly managed; and social housing is focused on those who need it most. A lower
waiting list can also be a by-product.
In framing their qualification criteria, authorities will need to have regard to their
duties under the equalities legislation, as well as the requirement in s.166A(3) to give
overall priority for an allocation to people in the reasonable preference categories.
Housing authorities should avoid setting criteria which disqualify groups of people
whose members are
to be accorded reasonable preference for social housing, for
example on medical or welfare grounds. However, authorities may wish to adopt criteria
which would disqualify individuals who satisfy the reasonable preference requirements.
This could be the case, for example, if applicants are disqualified on a ground of anti-
When deciding what classes of people do not qualify for an allocation, authorities
should consider the implications of excluding all members of such groups. For instance,
when framing residency criteria, authorities may wish to consider the position of people
link to page 15 link to page 15 link to page 15
who are moving into the district to take up work or to escape violence, or homeless
applicants or children in care who are placed out of borough.
The Government believes that authorities should avoid allocating social housing to
people who already own their own homes. Where they do so, this should only be in
exceptional circumstances; for example, for elderly owner occupiers who cannot stay in
their own home and need to move into sheltered accommodation.
There may be sound policy reasons for applying different qualification criteria in
relation to existing tenants from those which apply to new applicants. For example,
where residency requirements are imposed, authorities may wish to ensure they do not
restrict the ability of existing social tenants to move to take up work or to downsize to a
smaller home. Authorities may decide to apply different qualification criteria in relation
to particular types of stock, for example properties which might otherwise be hard to let.
Whatever general criteria housing authorities use to define the classes of persons
who do not qualify for social housing, there may be exceptional circumstances where it
is necessary to disapply these criteria in the case of individual applicants. An example
might be an intimidated witness8
who needs to move quickly to another local authority
district. Authorities are encouraged to make explicit provision for dealing with
exceptional cases within their qualification rules.
As with eligibility, authorities are advised to consider whether an applicant qualifies
for an allocation at the time of the initial application and when considering making an
allocation, particularly where a long time has elapsed since the original application.
Members of the Armed Forces and the Reserve Forces
Subject to Parliamentary scrutiny, we will regulate to provide that authorities must
not disqualify the following applicants on the grounds that they do not have a local
with the authority’s district:
(a) members of the Armed Forces and former Service personnel, where the
application is made within five10
years of discharge
(b) bereaved spouses and civil partners of members of the Armed Forces
leaving Services Family Accommodation following the death of their spouse or
(c) serving or former members of the Reserve Forces who need to move
because of a serious injury, medical condition or disability sustained as a result
8 'Intimidated witnesses include Protected Persons as specified in Section 82 and schedule 5 of the Serious
Organised Crime and Police Act 2005.'
9 As defined by s.199 of the 1996 Act.
10 5 years reflects guidelines issued by the local authorities associations which propose a working definition
of normal residence for the purposes of establishing a local connection (see paragraph 4.1(i) to Annex 18 of
the Homelessness Code of Guidance 2006).
of their service
These provisions recognise the special position of members of the Armed Forces
(and their families) whose employment requires them to be mobile and who are likely
therefore to be particularly disadvantaged by local connection requirements; as well as
those injured reservists who may need to move to another local authority district to
access treatment, care or support.
In the case of an allocation to two or more persons jointly, at least one of the
persons must be a qualifying person (s.160ZA(6)(b)) and all of them must be eligible.
Applicants who have previously been deemed not to qualify may make a fresh
application if they consider they should now be treated as qualifying, but it will be for the
applicant to show that his or her circumstances have changed (s.160ZA(11)).
Reviews of decisions on eligibility and qualification
For guidance on decisions and reviews see chapter 5.
link to page 17 Chapter 4
Framing an allocation scheme
Housing authorities are required by s.166A(1) to have an allocation scheme for
determining priorities, and for defining the procedures to be followed in allocating
housing accommodation; and they must allocate in accordance with that scheme
All aspects of the allocation process must be covered in the scheme,
including the people by whom decisions are taken. In the Secretary of State’s view,
qualification criteria form part of an allocation scheme.
All housing authorities must have an allocation scheme, regardless of whether they
own housing stock and whether they contract out the delivery of any of their allocation
functions (see further chapter 6). When framing or modifying their scheme, authorities
must have regard to their current tenancy and homelessness strategies (s.166A(12)).
Choice and preference options
An allocation scheme must include a statement as to the housing authority’s policy
on offering people a choice of accommodation or the opportunity to express preferences
about the accommodation to be allocated to them (s.166A). It is for housing authorities
to determine their policy on providing choice or the ability to express preferences.
In framing their allocation scheme to determine allocation priorities,
authorities must ensure that reasonable preference is given to the following categories
of people (s.166A(3):
(a) people who are homeless within the meaning of Part 7 of the 1996 Act
(including those who are intentionally homeless and those not in priority
(b) people who are owed a duty by any housing authority under section 190(2),
193(2) or 195(2) of the 1996 Act (or under section 65(2) or 68(2) of the
Housing Act 1985) or who are occupying accommodation secured by any
housing authority under s.192(3)
(c) people occupying insanitary or overcrowded housing or otherwise living in
unsatisfactory housing conditions
(d) people who need to move on medical or welfare grounds, including grounds
relating to a disability11
11 The words ‘including grounds relating to a disability were added by the Housing Act 2004.
link to page 18
(e) people who need to move to a particular locality in the district of the housing
authority, where failure to meet that need would cause hardship (to
themselves or others)
In framing their allocation scheme to give effect to s.166A(3), housing authorities
should have regard to the following considerations:
• the scheme must be framed so as to give reasonable preference to applicants
who fall within the categories set out in s.166A(3), over those who do not
• although there is no requirement to give equal weight to each of the reasonable
preference categories, authorities will need to demonstrate that, overall,
reasonable preference has been given to all of them
• there is no requirement for housing authorities to frame their scheme to afford
greater priority to applicants who fall within more than one reasonable preference
category (cumulative preference) over those who have reasonable preference on
a single, non-urgent basis12.
Otherwise, it is for housing authorities to decide how to give effect to the provisions of
s.166A(3) in their allocation scheme.
Applicants should not be given reasonable preference under paragraph (a) or (b) of
s.166A(3) if they would only qualify for reasonable preference by taking into account a
‘restricted person’ within the meaning of Part 7 (s.166A(4)). A restricted person is a
person subject to immigration control who is not eligible for homelessness assistance
because he or she does not have leave to enter or remain in the UK or has leave which
is subject to a ‘no recourse to public funds’ condition (s.184(7) of the 1996 Act).
Homeless or owed a homelessness duty
The requirement for housing authorities to frame their allocation scheme to give
reasonable preference to people who are owed certain homeless duties remains the
case, notwithstanding the amendments to Part 7 made by the Localism Act which give
authorities the power to end the main homelessness duty with an offer of private rented
accommodation, without requiring the applicant's consent.
The Secretary of State takes the view that the bedroom standard is an appropriate
measure of overcrowding for allocation purposes, and recommends that all housing
authorities should adopt this as a minimum. The bedroom standard allocates a separate
bedroom to each:
• married or cohabiting couple
12 (R (on application of Ahmad) v London Borough of Newham
 UKHL 14,  HLR 31
• adult aged 21 years or more
• pair of adolescents aged 10-20 years of the same sex
• pair of children aged under 10 years regardless of sex
Medical and welfare grounds
The medical and welfare reasonable preference category includes people who need
to move because of their disability or access needs, and this includes people with a
learning disability as well as those with a physical disability.
’Welfare grounds’ would encompass a wide range of needs, including, but not
limited to, the need to:
• provide a secure base from which a care leaver, or a person who is moving on
from a drug or alcohol recovery programme, can build a stable life
• provide accommodation, with appropriate care and support, for those who could
not be expected to find their own accommodation, such as young adults with
learning disabilities who wish to live independently in the community
• provide or receive care or support. This would include foster carers, those
approved to adopt, or those being assessed for approval to foster or adopt, who
need to move to a larger home in order to accommodate a looked after child or a
child who was previously looked after by a local authority. It would also include
special guardians, holders of a residence order and family and friends carers
who are not foster carers but who have taken on the care of a child because the
parents are unable to provide care
This would include, for example, a person who needs to move to a different locality
in order to give or receive care, to access specialised medical treatment, or to take up a
particular employment, education or training opportunity.
Possible indicators of the criteria which apply to reasonable preference categories
(c) and (d) are given in annex1.
Section 166A(3) gives housing authorities the power to frame their allocation
scheme to give additional preference to particular descriptions of people who fall within
the statutory reasonable preference categories and have urgent housing needs. All
housing authorities must consider, in the light of local circumstances, the need to give
effect to this provision. Examples of people with urgent housing needs to whom
housing authorities should consider giving additional preference within their allocation
• those who need to move urgently because of a life threatening illness or sudden
• families in severe overcrowding which poses a serious health hazard
• those who are homeless and require urgent re-housing as a result of violence or
threats of violence, including intimidated witnesses, and those escaping serious
anti-social behaviour or domestic violence
Members of the Armed and Reserve Forces
Subject to parliamentary approval, we will regulate to require authorities to frame
their allocation scheme to give additional preference to the following categories of
people who fall within one or more of the reasonable preference categories and who
have urgent housing needs:
(a) former members of the Armed Forces
(b) serving members of the Armed Forces who need to move because of a
serious injury, medical condition or disability sustained as a result of their service
(c) bereaved spouses and civil partners of members of the Armed Forces leaving
Services Family Accommodation following the death of their spouse or partner
(d) serving or former members of the Reserve Forces who need to move
because of a serious injury, medical condition or disability sustained as a result
of their service
Determining priorities between households with a similar level of
Authorities may frame their allocation scheme to take into account factors in
determining relative priorities between applicants in the reasonable (or additional)
preference categories (s.166A(5)). Examples of such factors are given in the
legislation: financial resources, behaviour and local connection. However, these
examples are not exclusive and authorities may take into account other factors instead
or as well as these.
Financial resources available to a person to meet his housing costs
This would enable a housing authority, for example, to give less priority to owner
occupiers (wherever the property is situated).
This would allow for greater priority to be given to applicants who have been model
tenants or have benefited the community, for example.
link to page 21 link to page 21 link to page 21 link to page 21 link to page 21 Local connection
Local connection is defined by s.199 of the 1996 Act. A person has a local
connection because of normal residence (current or previous) of their own choice,
employment, family associations, or special circumstances. Residence is not of a
person’s choice if it is the consequence of being detained in prison or in hospital under
the Mental Health Act. As a result of changes to s.199 introduced in 200813
serving in the Armed Forces can establish a local connection with a local authority
district through residence or employment there, in the same way as a civilian.
Including local priorities alongside the statutory reasonable
As the House of Lords made clear in the case of R (on application of Ahmad) v.
only requires that the people encompassed within that
section are given ‘reasonable preference’. It ‘does not require that they should be given
absolute priority over everyone else’16
. This means that an allocation scheme may
provide for other factors than those set out in s.166A(3) to be taken into account in
determining which applicants are to be given preference under a scheme, provided that:
• they do not dominate the scheme, and
• overall, the scheme operates to give reasonable preference to those in the
statutory reasonable preference categories over those who are not
The Secretary of State would encourage authorities to consider the scope to take
advantage of this flexibility to meet local needs and local priorities.
The House of Lords also made clear that, where an allocation scheme complies
with the reasonable preference requirements and any other statutory requirements, the
courts should be very slow to interfere on the ground of alleged irrationality17
Local lettings policies
Section 166A(6)(b) of the 1996 Act enables housing authorities to allocate
particular accommodation to people of a particular description, whether or not they fall
within the reasonable preference categories, provided that overall the authority is able
to demonstrate compliance with the requirements of s.166A(3). This is the statutory
basis for so-called ‘local lettings policies’ which may be used to achieve a wide variety
of housing management and policy objectives.
13 Amendment to s.199 of the 1996 Act made by s.315 of the Housing and Regeneration Act 2008.
14  UKHL 14
15 Previously s.167(2), which continues to apply to allocations by housing authorities in Wales.
16 Baroness Hale at para 
17 Lord Neuberger at para 
link to page 22
Households affected by the under-occupation measure
When framing the rules which determine the size of property to allocate to different
households and in different circumstances, housing authorities are free to set their own
criteria, provided they do not result in a household being statutorily overcrowded.
However, in setting these criteria, authorities will want to take account of the provision in
the Welfare Reform Act 2012 which will reduce Housing Benefit to under-occupiers.
Social tenants affected by the under-occupation measure may choose to move to
more suitably sized accommodation in the private rented sector. One way to encourage
tenants to consider this option might be to ensure they are given some degree of
preference for an allocation if they apply for a new social tenancy at a later date.
Members of the Armed Forces
Authorities are also strongly encouraged to take into account the needs of all
serving or former Service personnel when framing their allocation schemes, and to give
sympathetic consideration to the housing needs of family members of serving or former
Service personnel who may themselves have been disadvantaged by the requirements
of military service and, in particular, the need to move from base to base. This would be
in line with terms of the Government’s Armed Forces Covenant published in May 2011.
Examples of ways in which authorities can ensure that Service personnel and their
families are given appropriate priority, include:
• using the flexibility within the allocation legislation to set local priorities alongside
the statutory reasonable preference categories so as to give preference, for
example, to those who have recently left, or are close to leaving, the Armed
(see paragraph 4.19 above)
• using the power to determine priorities between applicants in the reasonable
preference categories, so that applicants in housing need who have served in the
Armed Forces are given greater priority for social housing over those who have
not (see paragraph 4.15 above)
• if taking into account an applicant’s financial resources in determining priorities
between households with a similar level of need (see paragraph 4.16 above),
disregarding any lump sum received by a member of the Armed Forces as
compensation for an injury or disability sustained on active service
18 MoD issues a Certificate of Cessation of Entitlement to Occupy Service Living Accommodation 6 months
• setting aside a proportion of properties for former members of the Armed Forces
under a local lettings policy (see paragraph 4.21 above)
A number of organisations provide specialist housing and support for veterans,
such as the Royal British Legion, Stoll, Haig Homes, Alabare and Norcare, and housing
authorities are encouraged to liaise with them to ensure that former Service personnel
are able to access the housing option which best suits their needs.
Households in work or seeking work
Local authorities are urged to consider how they can use their allocation policies to
support those households who want to work, as well as those who – while unable to
engage in paid employment - are contributing to their community in other ways, for
example, through voluntary work. The flexibilities which authorities are encouraged to
make use of to meet the needs of Service personnel would apply equally here. This
might involve, for example, framing an allocation scheme to give some preference to
households who are in low paid work or employment-related training, even where they
are not in the reasonable preference categories; or to give greater priority to those
households in the reasonable preference categories who are also in work or who can
demonstrate that they are actively seeking work. Alternatively, it might involve using
local lettings policies to ensure that specific properties, or a specified proportion of
properties, are allocated to households in particular types of employment where, for
example, skills are in short supply.
Authorities should also consider how best they can make use of the new power to
offer flexible tenancies to support households who are in low paid work, and incentivise
others to take up employment opportunities.
In making accommodation offers to applicants who receive support from carers
who do not reside with them but may need to stay overnight, housing authorities should,
wherever possible, take account of the applicant's need for a spare bedroom.
Prospective adopters and foster carers
When considering housing applications from prospective foster carers or adopters
who would require an extra bedroom to accommodate a foster or adoptive child,
authorities will wish to weigh up the risk that the application to foster or adopt may be
unsuccessful (leading to the property being under-occupied), against the wider benefits
which would be realised if the placement was successful.
Children’s services have a duty under s.22G of the Children Act 1989 to ensure
sufficient accommodation to meet the needs of the looked after children in their area.
Authorities should work together with children’s services to best meet the needs of
prospective and approved foster carers and adopters, so that children’s services can
meet their s.22G duty. One way to strike an appropriate balance would be to set aside a
quota of properties each year for people who need to move to larger accommodation in
order to foster or adopt a child on the recommendation of children’s services.
The advice in paragraph 4.22 is particularly relevant in relation to prospective
foster carers, as foster children are not taken into account in determining the household
size for the purposes of the under-occupation measure in the Welfare Reform Act.
However, current and prospective foster carers affected by the measure may be eligible
to apply for a Discretionary Housing Payment.
General information about particular applications
Under s166A(9), allocation schemes must be framed so as to give applicants the
right to request from housing authorities general information that will enable them to
(a) how their application is likely to be treated under the scheme and, in
particular, whether they are likely to have reasonable preference
(b) whether accommodation appropriate to their needs is likely to be made
available and, if so, how long it is likely to be before such accommodation
Notification about decisions and the right to a review of a decision
An allocation scheme must be framed so as to give applicants the right to be
informed of certain decisions and the right to review certain decisions (s.166A(9)). For
further advice on decisions and reviews, see chapter 5.
link to page 25
Allocation scheme management
Publishing and consulting on allocation schemes
Housing authorities must publish a summary of their allocation scheme and, if
requested, provide a free copy of it (s.168(1)). They must also make the full scheme
available for inspection at their principal office and, if requested, provide a copy of it on
payment of a reasonable fee (s.168(2)).
When an alteration is made to a scheme reflecting a major change of policy, an
authority must ensure within a reasonable time that those likely to be affected by the
change have the effect brought to their attention, taking such steps as the housing
authority considers reasonable (s.168(3)). A major policy change would include, for
example, any amendment affecting the relative priority of a large number of applicants
or a significant alteration to procedures. Housing authorities should be aware that they
still have certain duties under s.106 of the Housing Act 1985.
Section 166A(13) requires authorities, before adopting an allocation scheme, or
altering a scheme to reflect a major change of policy, to:
• send a copy of the draft scheme, or proposed alteration, to every Private Registered
with which they have nomination arrangements, and
• ensure they have a reasonable opportunity to comment on the proposals
Advice and information
Housing authorities must ensure that advice and information is available free of
charge to everyone in their district about the right to apply for an allocation of
accommodation (s.166(1)(a)). This would include general information about application
procedures; as well as information about qualification and prioritisation criteria.
If a person is likely to have difficulty making an application without assistance, the
authority must secure that any necessary assistance is available free of charge
19 And, where relevant, every Registered Social Landlord in Wales with which they have nomination
Housing authorities must inform applicants that they have the right to the following
general information (s.166(1A)):
• information that will enable them to assess how their application is likely to be
treated under the authority’s allocation scheme, and, in particular, whether they
are likely to fall within the reasonable preference categories, and
• information about whether accommodation appropriate to their needs is likely to
be made available to them and, if so, how long it is likely to be before such
accommodation becomes available. Maintaining a database of housing suitable
for applicants with access needs would assist with this.
Section 166(4) prohibits housing authorities from divulging to other members of the
public that a person is an applicant for social housing, unless they have the applicant’s
consent. Furthermore, authorities should process any personal data they hold about
applicants consistently with the Data Protection Act 1998. If authorities are unclear
about their obligations and responsibilities under the Data Protection Act they should
contact the Information Commissioner.
Elected Members’ Involvement in Allocation Decisions
The Allocation of Housing (Procedure) Regulations 1997 (SI 1997/483) prevent an
elected Member from being part of a decision-making body at the time an allocation
decision is made, when either:
• the accommodation concerned is situated in their division or electoral ward, or
• the person subject to the decision has their sole or main residence there
The regulations do not prevent an elected Member from representing their
constituents in front of the decision making body, or from participating in the decision
making body's deliberations prior to its decision. The regulations also do not prevent
elected Members’ involvement in policy decisions that affect the generality of housing
accommodation in their division or electoral ward rather than individual allocations; for
example, a decision that certain types of property should be prioritised for older people.
Offences related to information given or withheld by applicants
Section 171 makes it an offence for anyone, in connection with the exercise by a
housing authority of its functions under Part 6, to:
give false information
• knowingly withhold information which the housing authority has reasonably
required the applicant to give in connection with the exercise of those functions
The circumstances in which an offence is committed could include providing false
• on an application form for social housing
• in response to a request for further information in support of the application
• during review proceedings
Ground 5 in Schedule 2 to the Housing Act 1985 (as amended by s.146 of the
1996 Act) enables a housing authority to seek possession of a tenancy granted as a
result of a false statement by the tenant or a person acting at the tenant's instigation.
Fraudulent or incorrect allocations
Authorities may also wish to take action to minimise the risk of staff allocating
incorrectly or even fraudulently, for example to applicants who do not have sufficient
priority under the allocation scheme or do not meet the authority’s qualification criteria.
Appropriate steps might include vetting staff who take allocation decisions or providing
for decisions to be validated by employing senior staff to undertake random checks.
Decisions and reviews
Information about decisions and reviews
Housing authorities must inform applicants that they have the right to information
about certain decisions which are taken in respect of their application and the right to
review those decisions (s.166(1A)).
By virtue of s.160ZA (9) and (10) housing authorities must notify an applicant in
writing of any decision that he or she:
• is ineligible for an allocation of accommodation under s.160ZA(2) or (4), or
• is not a qualifying person under s.160ZA(7).
The notification must give clear grounds for the decision based on the relevant
facts of the case. Section 160ZA(10) provides that, where a notification is not received
by an applicant, it can be treated as having been given to him or her, if it is made
available at the housing authority’s office for a reasonable period. Where an authority
considers that an applicant may have difficulty in understanding the implications of a
decision on ineligibility or disqualification, it would be good practice to make
arrangements for the information to be explained verbally in addition to providing a
Applicants also have the right, on request, to be informed of any decision about
the facts of their case which has been, or is likely to be, taken into account in
considering whether to make an allocation to them (s.166A(9)(b)).
Under s.166A(9)(c) applicants have the right to request a review of any of the
decisions mentioned in paragraphs 5.15 and 5.17 above and to be informed of the
decision on the review and the grounds for it.
Procedures on review
Review procedures should be clearly set out, including timescales for each stage
of the process, and must accord with the principles of transparency and fairness. Failure
to put in place a fair procedure for reviews, which allows for all relevant factors to be
considered, could result in a judicial review of any decision reached. The following are
general principles of good administrative practice:
i. Applicants should be notified of the timescale within which they must request a review.
21 days from the date the applicant is notified of the decision is well-established as a
reasonable timescale. A housing authority should retain the discretion to extend this
time limit in exceptional circumstances.
ii. Applicants should be notified that the request for review should be made in writing,
and that it would also be acceptable for the request to be submitted by a representative
on their behalf. Applicants should also be advised of the information which should
accompany the request.
iii. Authorities should consider whether to advise that provision can be made for verbal
representations, as well as written submissions, to be made.
iii. The review should be carried out by an officer who is senior to the person who made
the original decision. Alternatively, authorities may wish to appoint a panel to consider
the review. If so, it should not include any person involved in the original decision.
v. The review should be considered on the basis of the authority’s allocation scheme,
any legal requirements and all relevant information. This should include information
provided by the applicant on any relevant developments since the original decision was
made – for instance, the settlement of arrears or establishment of a repayment plan, or
departure of a member of the household responsible for anti-social behaviour
vi. Reviews should be completed wherever practicable within a set deadline. Eight
weeks is suggested as a reasonable timescale. The applicant should be notified of any
extension to this deadline and the reasons for this
viii. Applicants must be notified in writing of the outcome of the review. The notification
must set out the reasons for the decision. This will assist the applicant and the authority
if, for example, the applicant is not satisfied with the outcome and decides to seek a
judicial review or to take their case to the Local Government Ombudsman.
Private Registered Providers and contracting out
Working with Private Registered Providers
Private Registered Providers have a duty under s.170 to cooperate with housing
authorities – where the authority requests it - to such extent as is reasonable in the
circumstances in offering accommodation to people with priority under the authority’s
allocation scheme. Similarly, s.213 provides that, where a Private Registered Provider
has been requested by a housing authority to assist them in the discharge of their
homelessness functions under Part 7, it must cooperate to the same extent.
Housing authorities must comply with the requirements of Part 6 when they
nominate an applicant to be the tenant of a Private Registered Provider. A housing
authority nominates for these purposes when it does so ’in pursuance of any
arrangements (whether legally enforceable or not) to require that housing
accommodation, or a specified amount of housing accommodation, is made available to
a person or one of a number of persons nominated by the authority’ (s.159(4)).
Nomination agreements should set out the proportion of lettings that will be made
available; any criteria which the Private Registered Provider has adopted for accepting
or rejecting nominees; and how any disputes will be resolved. Housing authorities will
want to put in place arrangements to monitor effective delivery of the nomination
agreement so they can demonstrate they are meeting their obligations under Part 6.
The Secretary of State expects that Affordable Rent homes will be allocated in the
same way as social rent properties and that existing lettings arrangements operated by
housing authorities and Private Registered Providers will continue to apply. The
statutory and regulatory framework for allocations provides scope for local flexibility, and
authorities and Private Registered Providers may wish to exercise this discretion in
relation to Affordable Rent in order to meet local needs and priorities effectively.
The Local Authorities (Contracting Out of Allocation of Housing and Homelessness
Functions) Order 1996
(SI 1996/3205) – made under s.70 of the Deregulation and
Contracting Out Act 1994 (‘the 1994 Act’) – enables housing authorities to contract out
certain functions under Part 6. In essence, it allows the contracting out of administrative
functions, leaving the responsibility for strategic decisions with the housing authority.
Schedule 1 to the Order lists allocation functions which may not be contracted out:
• adopting or altering the allocation scheme, including the principles on which the
scheme is framed, and consulting Private Registered Providers,
• making the allocation scheme available at the authority’s principal office
The Order therefore provides that the majority of functions under Part 6 may be
contracted out. These include:
making enquiries about and deciding a person’s eligibility for an allocation
carrying out reviews of decisions
securing that advice and information is available free of charge on how to
apply for housing
securing that assistance is available free of charge to people likely to have
difficulty in making a housing application without such assistance, and
making individual allocations in accordance with the allocation scheme
The 1994 Act provides that a contract:
may authorise a contractor to carry out only part of the function concerned
may specify that the contractor is authorised to carry out functions only in
certain cases or areas specified in the contract
may include conditions relating to the carrying out of the functions, for
example prescribing standards of performance
shall be for a period not exceeding 10 years and may be revoked at any
time by the Minister or the housing authority. Any subsisting contract is to
be treated as having been repudiated in these circumstances
shall not prevent the authority from exercising the functions to which the
The 1994 Act also provides that the authority is responsible for any act or omission
of the contractor in exercising functions under the contract, except where:
• the contractor fails to fulfil conditions specified in the contract relating to the
exercise of the function
• criminal proceedings are brought in respect of the contractor’s act or omission
Where a housing authority has delegated or contracted out the operation of its
allocation functions to an external contractor, the contractor must be made aware of the
provisions of Part 6 and advised how the legislation and this guidance apply to them.
Where there is an arrangement in force under s.101 of the Local Government Act
1972 by virtue of which one authority exercises the functions of another, the 1994 Act
provides that the authority exercising the function is not allowed to contract it out without
the principal authority’s consent.
Indicators of criteria in reasonable
preference categories (c) & (d)
Housing authorities may devise their own indicators of the criteria in the
reasonable preference categories. The following list is included for illustrative
purposes and to assist housing authorities in this task. It is by no means
comprehensive or exhaustive, and housing authorities may have other, local
factors to consider and include as indicators of the categories.
Insanitary, overcrowded and unsatisfactory housing conditions
Lacking bathroom or kitchen
Lacking inside WC
Lacking cold or hot water supplies, electricity, gas, or adequate heating
Lack of access to a garden for young children
Sharing living room, kitchen, bathroom/WC
Property in disrepair
Poor internal or external arrangements
Young children in flats above ground floor
People who need to move on medical or welfare grounds (criteria
may apply to any member of the household)
A mental illness or disorder
A physical or learning disability
Chronic or progressive medical conditions (e.g. MS, HIV/AIDS)
Infirmity due to old age
The need to give or receive care
The need to recover from the effects of violence or threats of violence, or
physical, emotional or sexual abuse
Ability to fend for self restricted for other reasons
Young people at risk
People with behavioural difficulties
Need for adapted housing and/or extra facilities, bedroom or bathroom
Need for improved heating (on medical grounds)
Need for sheltered housing (on medical grounds)
Need for ground floor accommodation (on medical grounds)
Need to be near friends/relatives or medical facility on medical grounds
Need to move following hospitalisation or long term care
Rights to reside in the UK derived from EU Law
EEA nationals and their family members who have a right to reside in the UK
derives from EU law are not persons subject to immigration control. This means that
they will be eligible for an allocation of accommodation under Part 6 unless they fall
within one of the categories of persons to be treated as a person from abroad who is
ineligible for an allocation of accommodation by virtue of regulation 4 of the Eligibility
Nationals of EU countries
2. Nationals of EU countries enjoy a number of different rights to reside in other
Member States, including the UK. These rights derive from the EU Treaties, EU
secondary legislation (in particular Directive 2004/38
), and the case law of the European
Court of Justice.
3. Whether an individual EU national has a right to reside in the UK will depend on his
or her circumstances, particularly his or her economic status (e.g. whether employed,
self-employed, seeking work, a student, or economically inactive etc). Nationals of Bulgaria and Romania - the A2 accession states
4. A slightly different regime applies to EU nationals who are nationals of Bulgaria and
Romania which acceded to the EU on 1 January 2007. Bulgaria and Romania are
referred to in this guidance as the A2 accession states. The Immigration (European Economic Area) Regulations 2006
5. The Immigration (European Economic Area) Regulations 2006
Regulations’ – SI 2006/1003) implement into UK domestic law Directive 2004/38
Broadly, the EEA Regulations provide that EU nationals have the right to reside in the
UK without the requirement for leave to remain under the Immigration Act 1971 for the
first 3 months of their residence, and for longer, if they are a ’qualified person’ or they
have acquired a permanent right of residence. Nationals of Iceland, Liechtenstein and Norway, and Switzerland
6. The EEA Regulations extend the same rights to reside in the UK to nationals of
Iceland, Liechtenstein and Norway as those afforded to EU nationals. (The EU countries
plus Iceland, Liechtenstein and Norway together comprise the EEA.) The EEA
Regulations also extend the same rights to reside in the UK to nationals of Switzerland.
For the purposes of this guidance, ‘EEA nationals’ means nationals of any of the EU
member states (excluding the UK), and nationals of Iceland, Norway, Liechtenstein and
Switzerland. Initial 3 months residence
link to page 33
7. Regulation 13 of the EEA Regulations provides that EEA nationals have the right to
reside in the UK for a period of up to 3 months without any conditions or formalities
other than holding a valid identity card or passport. Therefore, during their first 3
months of residence in the UK, EEA nationals will not be subject to immigration control
(unless the right to reside is lost following a decision by an immigration officer in
accordance with regulation 13(3) of the EEA Regulations).
8. However, regulations 4(1)(b)(ii) and (c) of the Eligibility Regulations provide that a
person who is not subject to immigration control is not eligible for an allocation of
(i) his or her only
right to reside in the UK is an initial right to reside for a period
not exceeding 3 months under regulation 13 of the EEA Regulations, or
(ii) his or her only
right to reside in the Channel Islands, the Isle of Man or the
Republic of Ireland (the Common Travel Area) is a right equivalent to the right
mentioned in (i) above which is derived from the EU Treaty
Rights of residence for ‘qualified persons’
9. Regulation 14 of the EEA Regulations provides that ‘qualified persons’ have the right
to reside in the UK so long as they remain a qualified person. Under regulation 6 of the
EEA Regulations, ‘qualified person’ means:
a) a jobseeker
b) a worker
c) a self-employed person
d) a self-sufficient person
e) a student
10. For the purposes of regulation 6(1)(a) of the EEA Regulations, ‘jobseeker’ means a
person who enters the UK in order to seek employment and can provide evidence that
he or she is seeking employment and has a genuine chance of being employed.
11. Nationals of Bulgaria and Romania who need to be authorised to work do not have
a right to reside in the UK as a jobseeker20
. However, they may have a right to reside
by virtue of another status, e.g. as a self-sufficient person.
12. Although a person who is a jobseeker is not subject to immigration control,
regulation 4 of the Eligibility Regulations provides that a person is not eligible for an
allocation of accommodation if:
20 Regulation 6(2) of the Accession (Immigration and Worker Authorisation) Regulations 2006
(i) his or her only
right to reside in the UK is derived from his or her status as a
jobseeker or the family member of a jobseeker, or
(ii) his or her only
right to reside in the Channel Islands, the Common Travel
Area is a right equivalent to the right mentioned in (i) above which is derived from
the Treaty establishing the European Community
13. In order to be a worker for the purposes of the EEA Regulations, a person must be
employed. That is to say, he or she is obliged to provide services for another person in
return for monetary reward and is subject to the control of that other person as regards
the way in which the work is to be done.
14. Activity as an employed person may include part time work, seasonal work and
cross-border work (ie. where a worker is established in another Member State and
travels to work in the UK). However, case law provides that the employment must be
effective and genuine economic activity, and not on such a small scale as to be
regarded as purely marginal and ancillary.
15. Provided the employment is effective and genuine economic activity, the fact that a
person’s level of remuneration may be below the level of subsistence or below the
national minimum wage, or the fact that a person may be receiving financial assistance
from public benefits, would not exclude that person from being a ‘worker’.
16. A person who is a worker is not subject to immigration control, and is eligible for an
allocation of accommodation whether or not
he or she is habitually resident in the
Common Travel Area.
Retention of worker status
17. A person who is no longer working does not cease to be treated as a ‘worker’ for
the purpose of regulation 6(1)(b) of the EEA Regulations, if he or she:
(a) is temporarily unable to work as the result of an illness or accident; or
(b) is recorded as involuntarily unemployed after having being employed in the UK,
provided that he or she has registered as a jobseeker with the relevant employment
(i) was employed for one year or more before becoming unemployed, or
(ii) has been unemployed for no more than 6 months, or
(iii) can provide evidence that he or she is seeking employment in the UK and
has a genuine chance of being engaged; or
(c) is involuntarily unemployed and has embarked on vocational training; or
(d) has voluntarily ceased working and embarked on vocational training that is related
to his or her previous employment. A2 state workers requiring authorisation who are treated as workers
18. By virtue of the Accession (Immigration and Worker Authorisation) Regulations
(‘the Accession Regulations’), nationals of the A2 states (with certain exceptions)
must obtain authorisation to work in the UK until they have accrued a period of 12
months continuous employment.
19. An A2 national requiring authorisation is only treated as a worker if he or she is
actually working and:
(i) holds an accession worker authorisation document, and
(ii) is working in accordance with the conditions set out in that document
(regulation 9(1) of the Accession Regulations)
20. Authorities may need to contact the employer named in the authorisation
document, to confirm that the applicant continues to be employed. Self-employed persons
21. ‘Self-employed person’ means a person who establishes himself in the UK in order
to pursue activity as a self-employed person in accordance with Article 49 of the Treaty
on the Functioning of the European Union.
22. A self-employed person should be able to confirm that he or she is pursuing activity
as a self-employed person by providing documents relating to their business. A person
who is no longer in self-employment does not cease to be treated as a self-employed
person for the purposes of regulation 6(1)(c) of the EEA regulations, if he or she is
temporarily unable to pursue his or her activity as a self-employed person as the result
of an illness or accident.
23. A2 nationals are not required to be authorised in order to establish themselves in
the UK as a self-employed person.
24. A person who is a self-employed is not subject to immigration control and is eligible
for an allocation of accommodation whether or not
he or she is habitually resident in the
Common Travel Area. Self-sufficient persons
25. Regulation 4(1)(c) of the EEA regulations defines ‘self-sufficient person’ as a
person who has:
link to page 36
(i) sufficient resources not to become a burden on the social assistance system
of the UK during his or her period of residence, and
(ii) comprehensive sickness insurance cover in the UK
26. By regulation 4(4) of the EEA Regulations, the resources of a person who is a self-
sufficient person (or a student – see below) and, where applicable, any family members,
are to be regarded as sufficient if (a) they exceed the maximum level of resources which
a UK national and his or her family members may possess if he or she is to become
eligible for social assistance under the UK benefit system or, if (a) does not apply, (b)
taking into account the personal situation of the person concerned and, where
applicable, any family members, it appears to the decision maker that the resources of
the person or persons concerned should be regarded as sufficient.
27. Where an EEA national applies for an allocation of accommodation as a self-
sufficient person and does not appear to meet the conditions of regulation 4(1)(c) of the
EEA regulations, the housing authority will need to consider whether he or she may
have some other right to reside in the UK.
28. Where the applicant does not meet the conditions of regulation 4(1)(c) but has
previously done so during his or her residence in the UK, the case should be referred to
the Home Office for clarification of their status.
29. A person who is a self-sufficient person is not subject to immigration control, but
habitually resident in the Common Travel Area to be eligible for an allocation of
30. Regulation 4(1)(d) of the EEA regulations defines ‘student’ as a person who :
(a) is enrolled at a private or public establishment included on the Register of Education
and Training Providers21
, or is financed from public funds, for the principal purpose of
following a course of study, including vocational training, and
(b) has comprehensive sickness insurance cover in the UK, and
(c) assures the Secretary of State, by means of a declaration or such equivalent means
as the person may choose, that he or she (and if applicable his or her family members)
has sufficient resources not to become a burden on the social assistance system of the
UK during his or her period of residence.
31. A person who is a student
is not subject to immigration control but must be
habitually resident in the Common Travel Area to be eligible for an allocation of
21 Now known as the Register of Sponsors and held by UKBA.
Permanent right of residence
32. Regulation 15 of the EEA Regulations provides that the following persons shall
acquire the right to reside in the UK permanently :
(a) an EEA national who has resided in the UK in accordance with the EEA regulations
for a continuous period of 5 years
(b) a non-EEA national who is a family member of an EEA national and who has
resided in the UK with the EEA national in accordance with the EEA regulations for a
continuous period of 5 years
(c) a worker or self-employed person who has ceased activity (see regulation 5 of the
EEA Regulations for the definition of worker or self-employed person who has ceased
(d) the family member of a worker or self-employed person who has ceased activity
(e) a person who was the family member of a worker or self-employed person who has
died, where the family member resided with the worker or self-employed person
immediately before the death and the worker or self-employed person had resided
continuously in the UK for at least 2 years before the death (or the death was the result
of an accident at work or an occupational disease)
(f) a person who has resided in the UK in accordance with the EEA regulations for a
continuous period of 5 years, and at the end of that period was a family member who
has retained the right of residence (see regulation 10 of the EEA Regulations for the
definition of a family member who has retained the right of residence).
Once acquired, the right of permanent residence can be lost through absence from the
UK for a period exceeding two consecutive years.
33. A person with a right to reside permanently in the UK arising from (c), (d) or (e)
above is eligible for an allocation of accommodation whether or not he or she is
habitually resident in the Common Travel Area. Persons with a permanent right to
reside by virtue of (a), (b), or (f) must be habitually resident to be eligible.
Rights of residence for certain family members
The right to reside
34. Regulation 14 of the EEA Regulations provides that the following family members
are entitled to reside in the UK:
(i) a family member of a qualified person residing in the UK
(ii) a family member of an EEA national with a permanent right of residence
under regulation 15
(iii) a family member who has retained the right of residence (see regulation 10 of
the EEA Regulations for the definition)
35. A person who has a right to reside in the UK as the family member of an EEA
national under the EEA Regulations will not be subject to immigration control. The
eligibility of such a person for an allocation of accommodation should therefore be
considered in accordance with regulation 4 of the Eligibility Regulations.
36. When considering the eligibility of a family member, housing authorities should
consider whether the person has acquired a right to reside in their own right, for
example a permanent right to reside under regulation 15 of the EEA Regulations.
Who is a ‘family member’?
37. Regulation 7 of the EEA regulations provides that the following persons are treated
as the family members of another person (with certain exceptions for students – see
(a) the spouse of the person
(b) the civil partner of the person
(c) a direct descendant of the person, or of the person’s spouse or civil partner, who is
under the age of 21
(d) a direct descendant of the person, or of the person’s spouse or civil partner, who is
over 21 and dependent on the person, or the spouse or civil partner
(e) an ascendant relative of the person, or of the person’s spouse or civil partner, who
is dependent on the person or the spouse or civil partner
(f) a person who is an extended family member and is treated as a family member by
virtue of regulation 7(3) of the EEA regulations (see below)
Family members of students
38. Regulation 7(2) of the EEA regulations provides that a person who falls within (c),
(d) or (e) above shall not be treated as a family member of a student residing in the UK
after the period of 3 months beginning on the date the student is admitted to the UK
(i) in the case of paragraph 37(c) and (d) above, the person is the dependant
child of the student, or of the spouse or civil partner, or
(ii) the student is also a qualified person (for the purposes of regulation 6(1) of
the EEA regulations) other than as a student
Extended family members
39. Broadly, extended family members will be persons who:
(a) do not fall within any of the categories (a) to (e) in paragraph 37 above, and
(b) are either a relative of an EEA national (or of the EEA national’s spouse or civil
partner) or the partner of an EEA national, and
(c) have been issued with an EEA family permit, a registration certificate or a residence
card which is valid and has not been revoked
Family members’ eligibility for an allocation of accommodation
Relationship with other rights to reside
40. This section concerns the eligibility of an applicant for an allocation of
accommodation whose right to reside is derived from his or her status as the family
member of an EEA national with a right to reside. In some cases, a family member will
have acquired a right to reside in his or her own right. In particular, a person who arrived
in the UK as the family member of an EEA national may have subsequently acquired a
permanent right of residence under regulation 15 of the EEA Regulations, as outlined in
paragraph 32 (a) – (f) above. The eligibility for an allocation of accommodation of those
with a permanent right of residence is discussed at paragraphs 32 and 33.
Family members who must be habitually resident
41. For family members with a right to reside under regulation 14 of the EEA
Regulations, the following categories of persons must be habitually resident in the UK,
the Channel Islands, the Isle of Man or the Republic of Ireland in order to be eligible for
an allocation of accommodation:
a) a person whose right to reside derives from their status as a family member of an
EEA national who is a self-sufficient person for the purposes of regulation 6(1)(d) of
the EEA regulations
b) a person whose right to reside derives from their status as a family member of an
EEA national who is a student for the purposes of regulation 6(1)(e) of the EEA
c) a person whose right to reside is dependent on their status as a family member of an
EEA national with a permanent right to reside
d) a person whose right to reside is dependent on their status as a family member who
has retained the right of residence
Family members who are exempt from the habitual residence requirement
42. A person with a right to reside under regulation 14 as a family member of an EEA
national who is a worker or a self-employed person for the purposes of regulation 6(1)
of the EEA regulations is exempted from the requirement to be habitually resident by
regulation 4(2)(d) of the Eligibility Regulations. However, authorities should note that an
extended family member (see above) is not counted as a family member for the
purposes of regulation 4(2)(d) of the Eligibility Regulations (see regulation 2(3) of the
Family members of UK nationals exercising rights under the EU Treaty
43. There are some limited cases in which the non-EEA family member of a UK national
may have a right to reside under EU law. Under regulation 9 of the EEA Regulations,
the family member of a UK national should be treated as an EEA family member where
the following conditions are met:
(i) the UK national is residing in an EEA State as a worker or self-employed
person, or was so residing before returning to the UK, and
(ii) if the family member of the UK national is his spouse or civil partner, the
parties are living together in the EEA State, or had entered into a marriage or civil
partnership and were living together in that State before the UK national returned
to the UK
44. Where the family member of a UK national is to be treated as an EEA family
member by virtue of regulation 9 of the EEA Regulations, that person is not subject to
immigration control, and his or her eligibility for an allocation of accommodation should
therefore be determined in accordance with regulation 4 of the Eligibility Regulations.
Worker authorisation scheme
1. Bulgaria and Romania (‘the A2’) acceded to the European Union on 1 January 2007.
A2 nationals have the right to move freely among all EU Member States. However,
under the EU Accession Treaty for Bulgaria and Romania existing Member States can
impose limitations on the rights of A2 nationals to access their labour markets (and the
associated rights of residence) for a transitional period.
The Accession (Immigration and Worker Authorisation) Regulations 2006
2. Under the Accession (Immigration and Worker Authorisation) Regulations 2006
2006/3317) (‘the Accession Regulations’), nationals of the A2 States (with certain
exceptions set out in paragraph 9 below) are required to be authorised to work by the
Home Office if they work in the UK during the transitional period. While looking for work
(or between jobs) their right to reside will be conditional on them being self-sufficient
and not imposing an unreasonable burden on the UK social assistance system. These
conditions cease to apply once they have worked in the UK continuously and legally for
3. The Accession Regulations also give workers from the A2 states the right to reside in
the UK. This means that workers from the A2 states have the same right to equal
treatment as other EEA workers while they are working in accordance with work
authorisation requirements or are exempt from those requirements.
The worker authorisation scheme
4. Nationals of A2 states who wish to work in the UK (except those who are exempt
from the requirement) must have an accession worker authorisation document and must
be working in accordance with the conditions set out in that document.
5. Nationals of the A2 states who are self-employed are not required to be authorised if
they are working that capacity.
6. The following constitute worker authorisation documents:
i. a passport or other travel document endorsed to show that the person was
given leave to enter or remain in the UK before 1 January 2007, subject to a
condition restricting his or her employment in the UK to a particular employer or
category of employment
If the leave to enter or remain expires before the person qualifies to be exempt
from the work authorisation requirements, or they wish to engage in employment
other than the job for which the leave was granted, they will need to obtain an
accession worker card
ii. a seasonal agricultural work card issued by the Home Office under the
Seasonal Agricultural Workers Scheme. The card is valid for 6 months from the
date the person starts work for the agricultural employer specified in the card
iii. an accession worker card issued by the Home Office
7. The accession worker card is valid for as long as the person continues to work for the
employer specified in the card. If the person changes employer, he or she must apply
for a new accession worker card.
8. The worker authorisation scheme is a transitional measure. The Accession
Regulations provide for the scheme to operate for up to five years from 1 January 2007
(i.e. until 31 December 2011). However, there is provision for the scheme to be
extended for a further two years in the event of a serious disturbance to the labour
market. The decision was taken on 23 November 2011 to maintain transitional controls
on Romanian and Bulgarian workers until the end of 2013.
A2 nationals exempt from worker authorisation
9. The following are the categories of A2 nationals who are not required to obtain
authorisation to work:
• those who are classified as highly skilled persons and hold a registration
certificate allowing them unconditional access to the UK labour market
• those working legally, and without interruption, in the UK for a period of 12
months or more ending on 31 December 2006 (for example, they may have been
already present in the UK as a work permit holder before accession)
• those who had leave to enter the UK under the Immigration Act 1971 on 31
December 2006 and that leave does not place any restrictions on taking
employment in the United Kingdom (for example, a person may have been given
leave to remain as the spouse of a British citizen or as the dependant of a work
• those who are providing services in the UK on behalf of an employer established
elsewhere in the EEA
• those who are also a national of the UK or another EEA state (other than an A2
• those who are a spouse or civil partner of a national of the UK or a person settled
in the UK
• those who are the spouse, civil partner or child under 18 of a person who has
limited leave to enter or remain in the UK and that leave allows that person to
work in the UK
• those who are a family member (spouse, civil partner or dependant child) of an
EEA national who has a right to reside in the UK under the EEA Regulations,
including those who are the family member (spouse, civil partner or descendant
(under 21 or dependant)) of an A2 national who is working in accordance with
worker authorisation requirements
• those who have a permanent right to reside in the UK under regulation 15 of the
• those who are in the UK as a student and are permitted to work for 20 hours a
week, provided they are in possession of a registration certificate confirming that
they are exercising a Treaty right as a student
10. In addition, where a person has worked legally in the UK without interruption for a
12 month period falling wholly or partly after 31 December 2006, they will be free from
the requirement to seek authorisation. At that stage, they will be able to apply to the
Home Office for an EEA residence permit to confirm their right to equal treatment on the
same basis as other EEA nationals.
12 months’ uninterrupted work
11. In order to establish ’12 months’ uninterrupted work’ an A2 worker must have been
working legally in the UK at the beginning and end of the 12 month period. The 12
month period does not have to run continuously. However, any intervening period in
which an A2 national is not legally working must not exceed 30 days in total. If more
than 30 days between periods of employment occur before a 12-month period of
uninterrupted employment is established, a fresh period of 12 months' uninterrupted
employment would need to commence from that point.
12. There is no restriction on the number of different authorised jobs (or employers) that
a worker can have during a 12-month period of continuous employment.
Highly skilled workers
13. A national of an A2 state is not required to be authorised under the worker
authorisation scheme, if he is a highly skilled worker who has been given a registration
certificate by the Home Office which includes a statement that he or she has
unconditional access to the UK labour market.
In practice, when considering housing applications from persons subject to the
habitual residence test, it is only necessary to investigate habitual residence if the
applicant has arrived or returned to live in the UK during the two year period prior to
making the application. Definition of habitual residence
The term ‘habitual residence’ is not defined in legislation. Housing authorities should
always consider the overall circumstances of a case to determine whether someone is
habitually resident in the Common Travel Area.
When deciding whether a person is habitually resident, consideration must be given
to all the facts of each case in a common sense way. It should be remembered
• the test focuses on the fact and nature of residence
• a person who is not resident somewhere cannot be habitually resident there
• residence is a more settled state than mere physical presence in a country. To
be resident a person must be seen to be making a home. It need not be the only
home or a permanent home but it must be a genuine home for the time being.
For example, a short stay visitor or person receiving short term medical treatment
is not resident
• the most important factors for habitual residence are length, continuity and
general nature of actual residence rather than intention
• the practicality of a person’s arrangements for residence is a necessary part of
determining whether it can be described as settled and habitual
• established habitual residents who have periods of temporary or occasional
absence of long or short duration may still be habitually resident during such
Action on receipt of an application
Applicant came to live in the UK during the previous two years
If it appears that the applicant came to live in the UK during the previous two years,
authorities should make further enquiries to decide if the applicant is habitually
resident, or can be treated as such.
Factors to consider
The applicant’s stated reasons and intentions for coming to the UK will be relevant to
the question of whether he or she is habitually resident. If the applicant’s stated
intention is to live in the UK, and not return to the country from which they came,
that intention must be consistent with their actions.
To decide whether an applicant is habitually resident in the UK, authorities should
consider the factors set out below. However, these do not provide an exhaustive check
list of the questions or factors that need to be considered. Further enquiries may be
needed. The circumstances of each case will dictate what information is needed, and
all relevant factors should be taken into account.
Why has the applicant come to the UK?
If the applicant is returning to the UK after a period spent abroad, and it can be
established that the applicant was previously habitually resident in the UK and is
returning to resume his or her former period of habitual residence, he or she will be
immediately habitually resident.
In determining whether an applicant is returning to resume a former period of habitual
residence authorities should consider:
• when the applicant left the UK
• how long the applicant lived in the UK before leaving
• why the applicant left the UK
• how long the applicant intended to remain abroad
• why the applicant returned
• whether the applicant’s partner and children, if any, also left the UK
• whether the applicant kept accommodation in the UK
• if the applicant owned property, whether it was let, and whether the lease was
timed to coincide with the applicant’s return to the UK
• what links the applicant kept with the UK
• whether there have been other brief absences
• why the applicant has come back to the UK
If the applicant has arrived in the UK within the previous two years and is not
resuming a period of habitual residence, consideration should be given to his or her
reasons for coming to the UK, and in particular to the factors set out below.
Applicant is joining family or friends
If the applicant has come to the UK to join or rejoin family or friends, authorities
• whether the applicant has sold or given up any property abroad
• whether the applicant has bought or rented accommodation or is staying with
• whether the move to the UK is intended to be permanent
Authorities should consider the applicant’s plans, e.g:
• if the applicant plans to remain in the UK, whether their stated plan is consistent
with their actions
• whether any arrangements were made for employment and accommodation
(even if unsuccessful) before the applicant arrived in the UK
• whether the applicant bought a one-way ticket
• whether the applicant brought all their belongings
• whether there is evidence of links with the UK, e.g. membership of clubs
The fact that a person may intend to live in the UK for the foreseeable future does
not, of itself, mean that habitual residence has been established. However, the
applicant’s intentions along with other factors, for example the disposal of property
abroad, may indicate that the applicant is habitually resident in the UK.
An applicant who intends to reside in the UK for only a short period, for example for
a holiday or to visit friends is unlikely to be habitually resident in the UK.
Length of residence in another country
Authorities should consider the length and continuity of an applicant’s residence in
• whether the applicant has any remaining ties with his or her former country of
• whether the applicant stayed in different countries outside the UK
It is possible that a person may own a property abroad but still be habitually resident
in the UK. A person who has a home or close family in another country would
normally retain habitual residence in that country. A person who has previously lived
in several different countries but has now moved permanently to the UK may be
habitually resident here.
Centre of interest
An applicant is likely to be habitually resident in the Common Travel Area despite
spending time abroad, if his or her centre of interest is located in one of these places.
People who maintain their centre of interest in the Common Travel Area for example
a home, a job, friends, membership of clubs, are likely to be habitually resident there.
People who have retained their centre of interest in another country and have no
particular ties with the Common Travel Area are unlikely to be habitually resident.
Authorities should take the following into account when deciding the centre of
If the centre of interest appears to be in the Common Travel Area but the applicant
has a home somewhere else, authorities should consider the applicant’s intentions
regarding the property.
It is not uncommon for a person to live in one country but have property abroad that
they do not intend to sell. Where such a person has lived in the Common Travel Area
for many years, the fact that they have property elsewhere does not necessarily mean
that they intend to leave, or that the applicant’s centre of interest is elsewhere.