4. Enforcement and sanctions
Section four focuses on enforcement. This chapter presents analysis of relevant responses, covering:
- The role of sanctions in relation to an extension of the Unsuitable Accommodation Order, effective and appropriate sanctions and how breaches can be avoided.
- The role of sanctions in relation to new standards.
The role of sanctions in relation to an extension of the Unsuitable Accommodation Order
Section 2 Question 10. We have already outlined that some local authorities have breached the current UAO, so that may mean it is likely that some local authorities will face challenges in meeting the extension of the UAO to all homeless households. We are interested to hear your views on whether additional measures should be introduced to help ensure local authorities do not continue to breach the UAO.
- Would sanctions provide an appropriate mechanism to encourage compliance?
- If so, what sanction would you consider to be an appropriate one?
- What additional support should be in place for local authorities to minimise the number of breaches of the Order?
The consultation paper acknowledged that some local authorities would face challenges in meeting the extension of the UAO to all homeless households. It asked respondents for views on whether additional measures should be introduced to help ensure local authorities did not breach the UAO.
Firstly, respondents were invited to select 'yes' or 'no' to indicate their overall view on whether or not sanctions were an appropriate mechanism to encourage compliance. Most of the 55 respondents who answered this question selected 'no'.
Analysis by respondent subgroup showed a divergence of views, depending on the sector. Almost all housing providers disagreed with sanctions; whilst the majority of advocacy organisations expressed support for sanctions. More people with lived experience of homelessness agreed than disagreed with sanctions. Among the small number of individuals without lived experience (for example, members of the public), slightly more disagreed than agreed with sanctions.
Secondly, respondents were asked what sanctions would be appropriate. Most common in these responses were comments on the potential impact of sanctions on local authorities, and how best to support housing providers to avoid sanctions. Second most common were calls for the Scottish Housing Regulator or Scottish Government to play a role in supporting local authorities to meet housing needs.
Smaller numbers of respondents reflected on sanctions as an effective a way to hold local authorities to account or advocated for financial measures such as fines for local authorities, or compensation for tenants. A similar number suggested that legal mechanisms could be used to achieve compliance and a few called for the creation of a tiered system of sanctions, including a process of interventions or support to assist local authorities to comply with requirements.
Some highlighted that they did not believe financial sanctions were appropriate and focused their comments on other types of interventions they believed would be most effective, as discussed in the previous chapter.
A small number of respondents suggested sanctions could be supported by a more holistic approach at a national level, including a stronger focus on preventing homelessness, increases to the housing stock or provision of opportunities for local authorities to learn from best practice elsewhere.
One called for local authorities to have the flexibility to explore other forms of temporary accommodation, such as community hosting, social letting agencies, social tenancies, use of resident landlords and other lodging arrangements. They also suggested categories of Temporary Accommodation could reflect the Order, so that reporting of breaches is accurate.
Many of those who did not support sanctions took this opportunity to explain their reasoning. The most common themes across these responses was concern that the desire to avoid sanctions could have unintended consequences such as (i) placing homeless households further away from their local area (ii) increasing the likelihood that local authorities will reject applications for temporary accommodation.
Across responses, there were references to the financial constraints housing providers already face and concern that sanctions will diminish existing resources. Linked to this were acknowledgements that housing providers are already navigating complex changes in relation to homelessness and do not have the capacity to successfully deliver additional proposals in the short term. A small number suggested that the ongoing changes should be implemented and evaluated before further adjustments are instigated.
Some described a fear that some local authorities will breach because they do not have sufficient housing stock and will need time and resources to expand their accommodation options.
There were also a few calls for alternative approaches, including (i) for the housing regulator or Scottish Government to play a role in supporting local authorities to meet housing needs or (ii) to offer incentives instead of sanctions. It was also suggested that sufficient timescales will be needed to achieve successful transitions.
Respondents were invited to comment on how local authorities could be supported to minimise breaches of the Unsuitable Accommodation Order. Within responses to this question, most common were calls for additional resources to support local authorities to meet their requirements. These included financial resources and other types of support, such as sharing of best practice. Another prevalent theme in responses to this question was of the variation of local need. Respondents called for tailored interventions depending on the challenges that their area faces; for example, lack of housing stock, high levels of demand or dispersal across a wide rural area.
Several referenced the implementation of RRTPs in their response. This was mentioned both in terms of a process that will achieve the Scottish Government's aims in the longer term, and as process might be jeopardized should other changes to housing policy absorb the attention of the housing sector, in the interim. There were calls for incremental approaches to any sanctions or interventions and for an acknowledgment that the sector is undergoing significant change.
Another common theme were suggestions that local authorities be supported to pursue alternative approaches to increasing the available housing stock. Examples included seeking greater allocations from Registered Social Landlords, greater use of private rented sector accommodation or shared ownership models.
Many repeated the examples of alternative (non-financial) sanctions they had described in their response to a previous question.
A small number raised other issues for consideration in their response. These included:
- Calls for investment in training so that staff are better able to support and engage with homeless households.
- For the Scottish Government to think more broadly about how to meet their goals including greater investment in preventative work to address the root causes of homelessness.
- Improvements to IT systems, to speed up temporary accommodation procurement, allocation and management.
The role of sanctions in relation to new standards
Section 4 Question 3: It is possible that some local authorities may not be able to meet new standards on temporary accommodation when introduced. Do you think that there should be sanctions, such as penalties or fines applied to those local authorities failing to meet the new standards? Please explain your answer.
Lived Experience Question 15: Do you think councils should be penalised (for example, through a fine) if the accommodation they provide does not meet these standards?
The consultation also explored the potential role for sanctions in upholding any new standards which are introduced, asking respondents for their view on sanctions, such as penalties or fines for local authorities failing to meet the new standards.
Firstly, respondents were invited to select 'yes' or 'no' to indicate their overall view on whether or not sanctions were appropriate in such situations. Most of the 51 respondents who answered this question selected 'no'.
Analysis by respondent subgroup showed the same balance of views as was noted above for sanctions in relation to encouraging compliance with UAO. Almost all housing providers disagreed with sanctions, whereas a majority of advocacy organisations expressed support for sanctions. Those with lived experience of homelessness were equally split on whether or not sanctions were appropriate.
Among those who did not believe that sanctions were appropriate, a variety of reasons against were provided. The most prevalent theme across these responses was a view that introducing fines or any form of financial penalties would be counter-productive. Some simply stated that fines could lead to a deterioration of services or limit the ability of local authorities to deliver services effectively. Many, however, raised the same issue as noted earlier which is the impact on financial resources at a time when these are already limited.
Many argued for the need for engagement and intervention in a process to support local authorities to resolve any issues and meet the standards. This included support in the form of dialogue, improvement planning and additional resources. There was some mention of the role of the regulator; that utilising their powers should be sufficient and that they have a role to play.
A small number cast doubt on the likelihood of new standards being achieved. They referenced time needed for local authorities to improve their stock or situations where a local authority does not own their temporary accommodation. There were also questions around whether exemptions would apply in situations where the location standards were not being met as a result of housing stock simply not existing e.g. in rural areas.
Other comments included two respondents who indicated a strong belief that local authorities would be able to meet the standards and therefore sanctions would not be required. Two noted a need for monitoring of compliance and a process to deal with non-compliance but did not elaborate on what these could be. Two gave specific suggestions for other approaches which were to 'link to the new temporary accommodation standards to the Annual Return of the Charter Report and engagement plans' and references to the Tribunal in the private rented sector and how a similar system could make it easier for local authorities to be held accountable.
Among those who supported the introduction of sanctions aligned to new temporary standards, most common was simply a call for their introduction.
Those who explained the basis of their support suggested that sanctions would bring about change in practice, hold local authorities accountable and speed up the proposed changes. To support this view, a small number gave examples of local authorities which are currently breaching standards and not being held accountable.
Many of the respondents who supported sanctions nevertheless caveated their support by raising the same issues as those who did not support them. These included the potential for them to be counter-productive and result in financial challenges, the need to work alongside and support local authorities, the use of sanctions only as a last resort, the challenges some local authorities might face in implementing the standards and the time needed to do so.
A small number provided further suggestions. These included that any fines should be paid to the affected tenant as compensation, and that performance reports should be published and with a registered responsible person named.
A majority of the small number of respondents with lived experience agreed that councils should be penalised if the accommodation they provide did not meet a proposed set of Scottish Government standards for temporary accommodation. Follow-up comments expressed a range of singular views including: a suggestion the approach would be 'robbing Peter to pay Paul'; that fines or similar financial penalties would result in change; and for a more collaborative approach rather than fines.
One advocacy organisation expressed their service users' views that reviews, fines, disciplining staff, enforcing standards, and serious sanctions all had a role to play.
How breaches can be avoided
Section 2 Question 4: In your opinion is option A or B the best way to avoid an increase in the number of breaches of the Order? Please explain your answer.
Respondents were also asked to indicate which of the options outlined in the consultation they believed would be the best way to avoid an increase in the number of breaches of the Unsuitable Accommodation Order.
- Option A – To extend the restriction to all homeless people from an agreed date
- Option B – To extend the restriction to all homeless people, with the extension to be implemented incrementally, over a period of time
Many of the 47 people who answered the question shared general comments which did not indicate a view. Among those who referenced either option, there was a clear preference for Option B.
Most of those who indicated a preference either explicitly stated Option B, or clearly stated a desire for an incremental approach. The vast majority of this group were representatives of the housing and health sector including local authorities. A number of reasons were given for this preference, most common being the additional time and flexibility available to local authorities to plan and respond to their local contexts. Some also commented that this would allow consistency with RRTPs.
Some expressed a preference either explicitly for Option A or from an agreed date, for a variety of reasons. A few mentioned that either planning for this was already underway or that agreeing a date with sufficient lead time would allow local authorities to be ready. A small number commented that an agreed date would be easier for local authorities to focus on and plan for than spreading resources across administering a series of incremental dates. Related to this, a small number also argued that the agreed date should be aligned with the end of the RRTP process so as to not distract from that work.
Three respondents gave mixed responses. Two commented that B would be preferable, but that there would be no breaches if local authorities were given sufficient time to plan and make improvements before the agreed date in Option A. One – a local authority – expressed a preference for Option A as they had concerns that an incremental introduction where different groups are prioritised could be construed as breaching equalities legislation and human rights legislation. However, they concluded their response by stating that neither option would reduce the number of breaches in their area until RRTPs and fully resourced and implemented.
Several general comments were made by respondents in response to this question. These included the following themes:
- That extending the number of people who can be classed as a breach will ultimately lead to more breaches, putting additional pressure on the system.
- Challenges faced by local authorities in improving standards and finding suitable alternative stock.
- The need for time to act, recognition of local contexts and support for local authorities to plan and implement changes.
- The positive impact of the proposed changes on refugees.