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Disposing of staff accommodation

Lexis Public Sector 146x219LexisPSL Local Government, in partnership with Kevin Long of Hackney Community Law Centre, examine the issues raised when councils dispose of a dwelling house used as staff accommodation.

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A local authority is seeking to dispose of a dwelling house which was used for the council's operational requirements as staff accommodation rather than social housing. Would this fall within the remit of the General Disposal Consent 2003 or would Secretary of State consent be required in accordance with the General Housing Consents 2013?

Wragg v Surrey County Council [2008] EWCA Civ 19

In this article we refer to ‘disposal’ as the transfer of the freehold interest, or to the granting of an option to acquire the same (and does not refer to other types of disposal; such as by assignment of a long leasehold interest, disposal by way of tenancy, by short lease, or by charging it as security for a loan etc) and that the disposal is not to a body in which the local authority owns an interest and not to an individual who intends to use it as their only or principal home. We also assume that the local authority referred to is based in England or Wales. The ‘General Disposal Consent 2003’ refers to Circular 06/03: Local Government Act 1972, General Disposal Consent (England) 2003 and assumes that no occupier has the right to buy (see Wragg v Surrey County Council).

From the facts as presented the local authority will seemingly need to make a specific disposal consent request under section 32 of the Housing Act 1985 (HA 1985) to its Appropriate National Body (ie to the Secretary of State for Communities and Local Government if in England, or to the Welsh Ministers if in Wales). If the dwelling house is in England and qualifies as ‘social housing’ the Secretary of State will need to consult the regulator of Social Housing before granting consent (see HA 1985, s 32(6)).

Statutory concept of social housing

Care must be taken before concluding that a dwelling house owned by an ‘English local authority’ (as defined by the Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010, SI 2010/844, Art 3(3)) is not ‘social housing’.

‘Social housing’ is a statutory concept in England applying to ‘dwellings’ and governed by the Housing and Regeneration Act 2008 (HRA 2008). Under HRA 2008, s 275 a ‘dwelling’ means ‘a house, flat or other building or part of a building occupied or intended to be occupied as a separate dwelling’. If the dwelling is rented separately to staff at below the market rate, such as for the better performance of their duties (or for example, to ensure they are able to live near to their job, or because it would not otherwise be possible to attract staff or retain them in the area due to the high cost of, or absence of, an accessible commercial housing market), then it is possible the dwelling would satisfy the statutory tests for being ‘social housing’ (under HRA 2008, ss 68(2) and 69) regardless of whether it was included within the authority’s Housing Revenue Account.

If the dwelling is classed as ‘social housing’ and the authority is based in England, then it must notify the Homes and Communities Agency in order to register itself with its Regulator of Social Housing as a ‘provider of social housing’ (HRA 2008, s 114A) with the consent of the Secretary of State for Communities and Local Government (DCLG).

If the local authority is in Wales then HRA 2008 framework will not apply. Disposal consent will be required instead from the Welsh Ministers.

Disposal without consent

Local authorities in England have a general power to dispose of land at best consideration without Secretary of State consent (under section 123(1) of the Local Government Act 1972).

However, due to HA 1985, s 32(1) this general power does not apply if the land is ‘housing accommodation’ held for the purposes of HA 1985, Pt II (under which ‘housing accommodation’ is broadly defined as including flats, lodging-houses and hostels, see HA 1985, s 56(1)).

General Disposal Consent 2003

The description of the accommodation referred to in the Q&A appears to satisfy the statutory definition of ‘housing accommodation’ held for the purposes of HA 1985, Pt II. Consequently the General Disposal Consent 2003 (which only applies to ‘non-Part II’ disposals made at less than best consideration and which are also for the furtherance of local community well-being purposes—eg a disposal to a community group on a lease of more than seven years) would not appear to be available.

General Housing Consents 2013 (General Consent C)

‘General Consent C’ of General Housing Consents 2013 harmonises sales of non-Part II dwelling houses to individuals at a discount with similar consent for disposals of Part II dwelling houses at a discount (eg non-statutory right to buy sales).

Disposal with the specific consent of the Appropriate National Body

The local authority has the option of making a specific consent application under HA 1985, s 32 to the ‘Appropriate National Body’ (ie Department for Communities and Local Government (DCLG) in England, or to the Welsh Ministers in Wales). This is done via a formal letter to the Appropriate National Body.

General Housing Consents 2013 (General Consent A)

A local authority in England or Wales need not make a specific disposal consent to the Appropriate National Body if the disposal is of an unoccupied dwelling house sold at full market value to a person who intends to use it as their only or principal home (see General Consent A).

If a local authority does not have access to either General Consent A or General Consent C, nor to the General Disposal Consent 2003, an application for specific consent should be made.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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