Allocation of tenancies

In selecting tenants, local authorities and registered social landlords must give 'reasonable preference' to persons who: [1]

• are living in unsatisfactory housing conditions and have unmet housing needs

• are homeless or threatened with homelessness as defined in Part 2 of the Housing (Scotland) Act 1987 and have unmet housing needs.

• the social landlord considers to be under-occupying their property

'Unmet housing needs' are defined as being 'where the social landlord considers that they have housing needs which are not capable of being met by housing options which are available'.

There are no statutory definitions for 'unsatisfactory housing conditions'.

'Reasonable preference' means that local authorities and registered social landlords are required to give due weight to these factors. They may take other factors into account too, so long as these do not dominate the allocation policy at the expense of the statutory considerations. [2]

When allocating houses local authorities and registered social landlords must not take into account the following: [3]

• The length of time that an applicant has lived in its area.

• Any outstanding debts (e.g. rent) associated with the tenancy of a property for which the applicant is not, and was not, a tenant when the debts arose.

• Any previous debts the applicant may have had in connection with their tenancy of a house. For example, rent arrears that have been paid.

• Any outstanding debt of the applicant associated with their tenancy of a house which is no more than one twelfth of the annual rent payable (or which was payable) in respect of that tenancy. For example, rent arrears of one month or less.

• Any outstanding debt of the applicant associated with their tenancy of a house, where the applicant has agreed a payment plan with their landlord, to which they have made payments towards for at least three months, and they are continuing to make payments.

• Any outstanding liability of the applicant (or of anyone who it is proposed will live with them) that is not associated with the tenancy of a property. For example, council tax arrears cannot be used to refuse the allocation of a house.

• The age of the applicant, as long as they are at least 16 years old; unless the allocation is of a house designed or substantially adapted for people of particular age group to live in (e.g. housing for the elderly); or the allocation is of a house for persons of a certain age group in receipt of housing support services (e.g. supported accommodation for young people).

• The income of the applicant and their family.

Home ownership may be taken into account unless:

• in a property which has not been let, the owner cannot secure entry to it, or

• it is probable that occupation will lead to abuse from some other person residing in it or who previously resided with that person, or

• occupation of the property may endanger the health of the occupants and there are no reasonable steps which can be taken to prevent this

When deciding whether an applicant is eligible for the allocation of housing, local authorities and registered social landlords cannot impose certain restrictions before the applicant is deemed eligible for housing.

They must not impose requirements for:

• a divorce or judicial separation to be obtained

• the applicant to no longer be living with, or in the same house as, some other person. [4]

A local authority or a registered social landlord shall not take into account whether an applicant is resident in their area [5] if they:

• are employed, or have been offered employment, in the area

• wish to move into the area and the local authority or registered social landlord is satisfied that their purpose in doing so is to seek employment

• wish to move into the area to be near a relative or carer

• have special social or medical reasons for requiring to be housed within the area

• are subject to conduct amounting to harassment, [6] or run the risk of domestic abuse and therefore wishes to move into the area. [7]

A local authority or registered social landlord may, in some circumstances, impose a requirement that an application must be in force for a minimum period before an applicant will be eligible for an offer of housing. This is often referred to as a 'suspension' from the waiting list.

It should be noted that a suspension cannot be made where an applicant is owed a duty of permanent accommodation under homeless legislation. [8]

However, for all other applicants, a suspension can be made where an applicant or a person who will be residing with the applicant has: [9]

• acted in an antisocial manner in or in the locality of their home

• pursued a course of conduct amounting to harassment of someone

• acted in an antisocial manner in relation to an employee of the social landlord in the course of making the application

• been convicted of or has resided with a person who has been convicted of - using a house or allowing it to be used for immoral or illegal purposes or

  - an offence punishable by imprisonment which was committed in or in the locality of their home

• using a house or allowing it to be used for immoral or illegal purposes or

• an offence punishable by imprisonment which was committed in or in the locality of their home

• using a house or allowing it to be used for immoral or illegal purposes or

• an offence punishable by imprisonment which was committed in or in the locality of their home

• using a house or allowing it to be used for immoral or illegal purposes or

• an offence punishable by imprisonment which was committed in or in the locality of their home

• using a house or allowing it to be used for immoral or illegal purposes or

• an offence punishable by imprisonment which was committed in or in the locality of their home

• has an order for recovery of possession or eviction order against them

• had a Scottish secure tenancy terminated through the abandonment procedure.

• incurred outstanding debt in relation to a tenancy they have held and they have not been making repayments for at least three consecutive months and the total debt is more than the equivalent of one months' rent.

A suspension may also be made where the applicant:

• knowingly or recklessly made a false statement in any application for housing held by a social landlord

• has refused one of more offers of housing and the landlord considers the refusal of that number of offers to be unreasonable

The statutory guidance on suspensions states that landlords should be wary of adopting too rigid an approach to suspending applicants with arrears and should take the circumstances of why the arrear/debt has arisen in each individual case into account before imposing suspensions. [10]

Where an applicant believes the suspension has not been been made in accordance with the rules, in the first instance they should request a review of the decision under the landlord's own review procedures. If this is unsuccessful but the applicant has evidence that the suspension is unlawful, the client should be referred to a specialist housing law solicitor. The applicant has the right to appeal such a decision appeal at the sheriff court. [11]