Court makes it clear – spent convictions shouldn’t be taken into account for housing applications

In most areas of England & Wales, there are long waiting lists for social housing and more often than not, a shortage of housing stock.

To address this issue, some social housing providers will have restrictions on who can apply for housing. Providers may decide that houses or flats will only be offered to people who come from the local area, or that they will not house people with particular criminal histories, or that some types of accommodation are for people in particular age bands.

Social housing providers can decide who does and does not qualify to be added to the waiting list. People who do not qualify may for example include people convicted of selling drugs or those that have in the past been violent towards a member of council staff.

If you are applying for registration on the housing list, most application forms will ask about criminal records. Legally, you only need to disclose unspent convictions.

In the past, social housing providers have been guilty of asking applicants to provide them with Subject Access Requests, something which was made illegal in March 2015 (find out more here). Some providers continue to ask misleading questions, not making it clear that applicants only need disclose unspent convictions. As a result of this, it is possible that individuals could over disclose their criminal record and that some providers will take spent convictions into account.

But housing providers beware! Earlier this year, Hammersmith and Fulham Borough Council were found to have acted unlawfully by basing its decision not to add an individual to its housing register on the fact that the claimant (YA) had a spent conviction.

YA was convicted of several offences between the ages of 12 and 15 including theft, criminal damage, assault and possession of Class A drugs. At the time of the offence, he was under the care of the council which was how they were aware of his background.

He applied to go on his local council housing register when he was aged 19 and, although the council acknowledged that his convictions were spent, they stated that he would not be eligible to be added to the register because:

• His behaviour remained relevant even if the conviction resulting from it was spent
• The behaviour included incidents which were ‘hardly minor matters’, which the council was entitled to take into account

The High Court found that:

• The decision amounted to a breach of Section 4 (1) of the Rehabilitation of Offenders Act 1974
• The decision was irrational

We see this is an extremely good result and it will no doubt have implications for other social housing providers.

The court have made it very clear that if you have spent convictions and are asked to disclose them, then you can treat the question as not being relevant to you.

In preventing themselves from future legal action, housing providers should make sure that if they’re asking applicants to disclose criminal records, they make it clear that spent criminal records do not need to be disclosed.

If you believe that your criminal record is having an impact on your ability to apply for social housing then we’d like to hear from you. Read more about the policy work we’re doing on this issue.

For more information

1. For practical self-help information – More information is available on our housing section
2. To discuss this issue with others – Read and share your experiences on our online forum
3. Our policy work – Read about the policy work we’re doing on criminal records and social housing
4. Questions – If you have any questions about this, you can contact theHelpline.