Homelessness: code of guidance
Code of guidance to help guide local authorities in their duties to assist people who are threatened with or who are experiencing homelessness.
Chapter 2: Prevention of Homelessness
2.1 Summary - this chapter describes the action to be taken by local authorities to prevent homelessness arising in the first place and then recurring. It gives guidance on the different types of advice and information that should be provided to people in different situations in order to prevent homelessness. It also covers how homelessness may be prevented from recurring through providing support to help people settle in their tenancies.
2.2 All local authorities have a statutory duty under the Housing (Scotland) Act 2001 to carry out an assessment of homelessness in their area and to prepare and submit to Ministers their strategy on the prevention and alleviation of homelessness as part of the Local Housing Strategy. Refreshed guidance published in September 2019 to support local authorities in preparing Local Housing Strategies encourages each authority to provide information on its approach to tackling homelessness. All local authority departments and all relevant local agencies should work together to prevent homelessness occurring wherever possible. It is also vitally important that, where homelessness does occur and is being tackled, consideration is given to the factors which may cause repeat homelessness and action taken to prevent homelessness recurring. Preventing homelessness is important to alleviate the misery that homelessness causes. It also helps to prevent the additional problems that can be caused by being homeless (such as health problems, losing employment, and losing contacts with support networks). It is also important to allocate resources to preventing homelessness to reduce pressure on health, housing, social work, employment and justice services in the longer term.
2.3 The Scottish Government produced statutory guidance on the prevention of homelessness in 2009 and this Code should be read alongside it. The Ending Homelessness Together Action Plan has a clear focus on prevention at its heart and sets out our intention to develop prevention pathways for the groups at highest risk and a new wide-ranging duty on local authorities, wider public bodies and delivery partners for the prevention of homelessness. We will review the 2009 prevention guidance as we develop this work.
Advice and information
2.4 Local authorities have a duty under Section 2 of the Housing (Scotland) Act 2001 ("the 2001 Act") to secure that advice and information about the prevention of homelessness and any services which may assist in the prevention of homelessness is available free of charge to any person in the authority's area. Local authorities are required to ensure that provision meets the standards set out in the Scottish National Standards for Information and Advice Providers. Chapter 9 of this Code discusses this further.
2.5 Local authorities should take a pro-active approach to the provision of advice and information. Local authorities should therefore publicise information on the services available to homeless people, in ways and places which ensure maximum accessibility. For example publicity via websites, libraries, post offices, rail or bus stations, prisons, accident and emergency departments and GP surgeries should be considered as well as the provision of advice in more formal settings such as the offices of voluntary organisations or the local authority.
2.6 All relevant information should also be available online, in relevant minority ethnic languages and should be otherwise widely accessible e.g. to people from black and minority ethnic communities, disabled people, people in prison (who do not have access to the internet) and people who have difficulty with reading. The aim should be to encourage early approaches by those at risk of homelessness, when their problems may be less serious and therefore easier to tackle.
2.7 Local authorities should also consider appropriate ways of communicating and providing advice and information to young people, to ensure that they have access to it.
2.8 Publicity should:
- make clear the circumstances which would make a person eligible for homelessness assistance;
- recognise that there are different types of homelessness, ensuring this is wider than just rough sleeping;
- take account of the stigma which may be attached to services badged as homelessness services; and
- take account of the different perceptions of homelessness which may prevail in different communities.
2.9 Voluntary bodies, which may be the first contact for homeless people, are key providers of specialist expertise and services and joint publicity arrangements may be more effective than each body issuing separate publicity for its own services.
Accommodation/advice and assistance
2.10 If someone is threatened with homelessness (likely to become homeless within 2 months) and has not been found to be intentionally threatened with homelessness, then the local authority has a duty to take reasonable steps to secure that accommodation does not cease to be available. More generally, the local authority has a duty to give advice and assistance to anyone threatened with homelessness.
2.11 Under Section 32(2) of the Housing (Scotland) Act 1987, where a local authority is:
- satisfied that an applicant is threatened with homelessness (likely to become homeless within 2 months); and
- satisfied that he or she did not become threatened with homelessness intentionally;
it must take reasonable steps to try to ensure that accommodation does not cease to be available for occupation by the applicant.
2.12 Section 32(4) provides that the Section 32(2) duty does not affect any right of the local authority (under any contract, enactment, or rule of law) to secure vacant possession of accommodation. However, local authorities should also bear in mind their strategic responsibility for preventing homelessness, and repeat homelessness, when considering action in any particular case.
2.13 As is set out more fully in Chapter 8, Section 32(5) excludes from the definition of accommodation, any accommodation which is overcrowded and a danger to health, does not meet any special needs of the household or which it is otherwise not reasonable for the applicant to occupy. Obtaining such accommodation for an applicant, or enabling them to remain in such accommodation, does not fulfil a local authority's duty and a person in this situation would still be homeless.
2.14 If someone is threatened with homelessness intentionally then, under Section 32(3), the local authority has a duty to provide advice and assistance that is appropriate in the circumstances. The purpose of this advice and assistance should be to support attempts by the applicant to secure that accommodation does not cease to be available for their occupation. See Chapter 9 of this Code for further guidance on the provision of advice and assistance.
2.15 The accommodation obtained for a person threatened with homelessness need not be their existing accommodation, although in practice this will often be the best option; assuming that it is reasonable for the applicant to continue to occupy it. If the local authority concludes that the loss of the applicant's present accommodation cannot be avoided, it should consider what duties it would have towards them if the person becomes homeless and act quickly to prevent homelessness - and particularly rooflessness - actually occurring. In either case, local authorities should intervene as early as possible.
2.16 As part of their assessment of the causes and nature of homelessness in their area, and the subsequent development of strategies, local authorities and their partners should identify and focus on actions which can be taken to prevent homelessness amongst particularly vulnerable groups. Service providers should be aware that these households may also be susceptible to repeat homelessness and that therefore sustained support may be required alongside resolving accommodation issues.
2.17 Particular circumstances, such as the loss of tied accommodation, may be particularly relevant in some local authorities but some common causes of homelessness are set out below:
2.18 Many people become homeless due to the breakdown of family relationships - divorce, separation or disagreements between siblings or parents and offspring. Such a domestic dispute may come to a local authority's attention in a number of ways and in many cases intervention to prevent the break-up of the household may not be appropriate. However, the authority should always act to ensure that long periods of homelessness, and in particular rooflessness, are avoided. Where allegations of abuse are involved it would be wholly inappropriate for the authority or another agency to intervene to keep the household together and such an intervention may in fact lead to an exacerbation of the situation. In particular, the alleged perpetrator of violence should not be approached for a view. Service providers should, however, consider whether the person who has experienced abuse would find it helpful to keep in touch with other close relatives or friends and the implications for the provision of accommodation and services.
2.19 Advice may be required by a member of the household on, for example, their rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004. However, exercising these rights should not be made a condition of access to services. It may also be useful to ask a relevant voluntary body, such as a Women's Aid group in the case of domestic abuse, or social work services, to help in appropriate circumstances, and particularly if there are children in the household.
2.20 Particular problems may arise in the case of older people, for example where the person has been dependent on their spouse for the house or to handle financial affairs. Such help, for example counselling or basic housing support, may be required urgently.
2.21 Generally, if it is appropriate, and if it is requested by both parties, assistance should be directed towards relieving tension within the household so as to enable the household to continue to live together.
2.22 If the local authority is satisfied that the situation warrants making accommodation available, its agreement to secure another house within a definite period of time may be preferable to transferring those involved into some interim short-term accommodation while more lasting arrangements are established. However, local authorities must not put pressure on people to remain in or return to their previous houses if that would cause distress. In particular, when a person is seeking refuge because of a fear of abuse, there will be an immediate need for rehousing.
2.23 A local authority can use its powers under paragraph 15 of Schedule 2 to the 2001 Act to transfer the tenancy of the house to (i) the tenant's spouse (or former spouse), or (ii) someone who has been living with the tenant as a spouse, where the potential transferee has applied to the landlord for the transfer because of relationship breakdown. Note that this includes same-sex couples. However, the powers under that paragraph can only be used where the sheriff is satisfied that it is reasonable to evict the tenant and that other accommodation is available for the tenant. Temporary accommodation may be needed for the person receiving the tenancy until the other person leaves. For the avoidance of doubt, the person leaving should be asked to renounce any occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004. Such a transfer can minimise any resulting homelessness particularly when children or other dependents remain with the person applying for the transfer
2.24 In other cases it may be possible for the authority or another service provider to intervene to prevent family breakdown and resulting homelessness. Local authorities should consider whether it is appropriate for them or another agency to provide relationship counselling or mediation services. Even where the family ceases to live together, these measures can help prevent homelessness by enabling family support to continue. This support is particularly important for young people leaving the family home. It may also be appropriate to consider other forms of support - such as drug or alcohol counselling - where these may help to resolve underlying tensions. However, as noted above, the provision of support should never be an alternative to addressing housing needs where there is a risk of abuse.
2.25 People may become homeless on leaving:
- local authority care
- the armed forces
2.26 In order to prevent this, close links between local authority departments, prisons, Integration Authorities, hospitals, primary care and community health services, secure care providers, Young Offender Institutions and the armed forces should be established locally.
2.27 Discharge protocols should be in place, including provision for the involvement of all relevant agencies in pre-discharge assessments and the formulation of any through-care and after-care plans. The National Strategy for Community Justice as prescribed by the Community Justice (Scotland) Act 2016 states that to 'improve access to housing, community justice partnerships, including Scottish Prison Service (SPS), Housing Providers and Third Sector should develop multi-agency protocols to ensure the needs of those who have committed offences are identified and addressed to ensure consistent access to suitable accommodation at all stages of the community justice process.'
2.28 Local authorities and other agencies should note the following points:
- Pre-discharge discussions are vital and should begin as early as possible, particularly where individuals may be reluctant to reveal housing difficulties for fear these could delay their discharge.
- Advance planning will be required to ensure accommodation is available, in some cases planning will be required to take place several years in advance where new accommodation has to be provided, particularly specialist accommodation.
- Even where accommodation is already available, it will be necessary in some cases to check that this is still suitable (for example for a person who has become physically disabled) or that support services are in place (for example for a discharged psychiatric patient or people leaving prison). In some cases, it will also be necessary to check the availability of move-on accommodation which the discharged person may need at a later date because of likely changes in their condition after discharge; and always where discharge accommodation is only available for a limited period
- In all cases, it will be important to establish early on in which area the person wishes to live. People may not have a local connection with the area in which they have been located. Even if they do, it may be better for them to return to the area where they lived previously. The development of Housing Options approaches by local authorities and partners and the Housing Options Guidance can help here as will the Housing Options Training Toolkit when it is launched (see Chapter 9 for more information on Housing Options).
- For young care leavers, the values and principles set out in Staying Put Guidance published in 2013 and of the Continuing Care and Corporate Parenting responsibilities set out in the Children and Young People (Scotland) Act 2014, together provides a renewed focus on integrated planning and ensuring extended transitions to post-care housing and accommodation options, as a joint corporate parenting responsibility. Positively delaying transitions and ensuring integrated pathways to safe sustainable and affordable accommodation is fundamental to improving outcomes in all areas for care leavers, not least in relation to the prevention of homelessness.
- Care plans should provide for the position to be reassessed if a tenancy is in danger of not being sustained (particularly if this is due to part of the care package not being delivered).
2.29 Difficulties in dealing direct with a person at risk of homelessness, for example because they are in prison, living in a long-stay hospital or other institution or serving with the armed forces some distance from the local authority, should not prevent their receiving the assistance to which they are entitled under homelessness legislation, or under other legislation such as the Mental Health (Care and Treatment) Scotland Act 2003. Protocols and other working arrangements should address access issues.
Entering and Leaving prison
2.30 Local authorities and prisons should refer to the Scottish Quality Standards - Housing Advice, Information and Support for People In and Leaving Prison (SHORE Standards) and try and anticipate future problems by considering what action is needed from the beginning of an individual's sentence, rather than waiting until release. Many people lose their accommodation on entering prison or during their sentence and/or individuals leaving prison do not have secure accommodation available on their release. This makes it less easy for them to integrate successfully into the community and increases the risks of both homelessness and re-offending. Local authorities should therefore work together with SPS and individual prisons, social work, health, Department for Work and Pensions (DWP) and third sector organisations to put in place measures to prevent people becoming homeless on entering and leaving prison.
2.31 Local authorities need to bear in mind that people from their area could be in prisons across Scotland not just their local prison. Weekly information on admissions, liberations over the next 12 weeks and over the preceding week are shared with local authorities, who have signed the SPS Data Sharing Agreement, to enable them to assist people from their local area.
2.32 A person may be able to continue getting Housing Benefit or make a claim for the first time if they go to prison or on remand. They will not be entitled to claim Housing Benefit if:
- They are likely to be on remand for more than 52 weeks
- They are likely to be in prison for more than 13 weeks (including any time on remand)
- They are not intending to return home on release
- They are claiming as a couple and have split up
- The property is going to be rented out
2.33 It depends on each person's individual circumstances as to whether they can make a new claim for Housing Benefit in place of Universal Credit. One of the following must be true:
- they get the severe disability premium
- they got the severe disability premium within the last month and are still eligible for it
- they have reached State Pension Age
- they live in temporary accommodation
- they live in sheltered or supported housing with special facilities such as alarms or wardens
2.34 Single people on remand can claim Housing Benefit payments for up to 52 weeks if likely to return home in a year or less. If imprisoned, they can claim Housing Benefit for up to 13 weeks in prison if likely to return home in 13 weeks or less - including any time on remand.
2.35 If a person who is part of a couple is on remand, they can claim joint Housing Benefit for up to 52 weeks while one of them is on remand, if it's likely to be for a year or less. If imprisoned, they can claim joint Housing Benefit for up to 13 weeks if one of them has been imprisoned and is likely to return home in 13 weeks or less - including any time on remand. If a person's partner has been the one claiming Housing Benefit and goes to prison, that person may be able to claim it instead as well as any other benefits they may qualify for. They may need to have their name added to the tenancy agreement.
2.36 If a person's child is on remand, the parents' Housing Benefit payments can continue for up to 52 weeks, if they're likely to be away for a year or less. If imprisoned, the parent will need to contact their local council to see if their Housing Benefit entitlement will change. For example, if they rent from a private landlord, the amount of benefit paid is limited, depending on who is living with them. They may also wish to check their continuing eligibility for any benefits they may be receiving.
2.37 Another relative or friend may be able to able to receive Housing Benefit or Universal Credit if they look after the home in the prisoner's absence, assuming they fulfil the relevant criteria and are approved by the landlord.
2.38 When working out how long the individual is likely to be away from home, the DWP should take account of any reductions that an individual is likely to get on their sentence - not simply the length of the sentence they receive. For example, an individual might be sentenced to four months in prison, but is likely to serve two months.
2.39 Local authorities and RSLs should also consider, for people previously living in local authority housing, such possibilities as allowing them to sublet their house during their sentence. The Housing Options Guidance 2016 states that local authorities should maximise 'options to secure a tenancy whilst a tenant is incarcerated. It may make more sense financially and in terms of disruption to the offender and the landlord for the home to be maintained in order to facilitate their release and rehabilitation into society'. These arrangements can be of benefit not only to the tenant but also to the landlord in terms of reducing rent arrears and avoiding abandonments. If this is not possible, however, then an agreement should be reached under which the individual gives up their present tenancy but are given equivalent accommodation on release. Naturally, this does not apply if the person has a family living with them who would be affected by such a change. Consideration also needs to be given to whether it is desirable or in the individual's best interest to return to their home area on release. For example, the person may not wish to return to the area where they have a local connection due to the offence they committed, peer pressure, proximity of victim or fear of reoffending.
2.40 Local authorities should work closely with SPS and local prisons in their area in order to ensure that people are fully aware of their housing options and are given as much assistance as possible in securing accommodation, in order to ensure they do not become homeless on release. Housing advice services are now available throughout the Scottish prison estate and local authorities should do as much as possible to assist these services and make connections to services in the community. Where necessary, to avoid homelessness on release, local authorities should also undertake homelessness assessments at least 8 weeks prior to release.
2.41 Local authorities and other agencies should also consider the need to ensure that people's possessions are secure during their sentence. People leaving prison often find it very difficult to re-establish themselves in the community and this can be exacerbated where they have lost all their possessions.
2.42 The Multi Agency Public Protection Arrangements (MAPPA) minimise the potential risk each sex offender may pose by requiring Police Scotland, the SPS and local authorities (including their housing services) to work together to assess and manage such risks. RSLs also have a duty to cooperate with these organisations in the management of sex offenders. The National Accommodation Strategy for Sex Offenders is part of these arrangements. It sets out the arrangements and roles of local authorities and RSLs when offenders subject to the sex offender notification requirements (also known as registered sex offenders), seek housing in the social rented sector.
2.43 Registered sex offenders under MAPPA should normally be housed in mainstream housing within the local authority from which they originate, although exceptional circumstances may occasionally mean that arrangements are required to house an offender in another local authority area. The key housing contacts in each local authority are the Sex Offender Liaison Officers (SOLOs). An Environmental Risk Assessment (ERA) must be undertaken collaboratively by the Responsible Authorities in MAPPA for all registered sex offenders at point of registration and any change of address. It will also be reviewed annually for certain categories of offenders unless the Responsible Authorities record justifiable and defensible decisions for not completing one. This process identifies if there are any housing-related risks associated with a particular offender.
2.44 Under no circumstances should a sex offender be placed in another local authority's area under MAPPA without the knowledge and consent of that authority and without a plan in place to manage any associated risk (Section 3.13 https://www.gov.scot/publications/national-accommodation-strategy-sex-offenders-scotland-2/.)
2.45 For further information on prison-based housing advice services please contact the SPS Policy Manager (Housing and Welfare) or the prison link centre (details in the SHORE document).
Entering and Leaving Hospital
2.46 Health Boards and local authorities are required to develop joint protocols for the admission, transfer and discharge of patients, as set out in the statutory guidance CCD 9/2003, and subsequent good practice guide published in 2009.
2.47 The Adults with Incapacity (Scotland) Act 2000 introduced a system for safeguarding the welfare and managing the finances and property of adults who lack capacity to act, make or understand and remember some or all decisions for themselves due to mental disorder or inability to communicate due to a physical condition. It allows other people to make decisions on behalf of these adults, subject to safeguards. Guardianships and intervention orders are orders of the court and the application process can take many months. Applications should be made as early as possible to avoid undue stays in hospital due to the lack of legal authority to move a person. Arrangements for accommodation in the community should also be made as quickly as possible, to prevent people being kept inappropriately in hospital. Practical guidance on discharging Adults with Incapacity was published by the Scottish Government in April 2019.
2.48 Many children and young people previously looked after by a local authority are particularly vulnerable and need support. Local authorities' duties and powers to provide for this group are set out in the Children (Scotland) Act 1995 ("the 1995 Act") and the Children and Young People (Scotland) Act 2014. Local authorities have a duty to make the welfare of the child their paramount consideration when making a decision relating to a child being looked after under the 1995 Act.
2.49 Scottish Government updated guidance explaining the duties and responsibilities of local authorities to provide Aftercare to care leavers, as amended by the Children and Young People (Scotland) Act 2014 and more specifically the Housing Options Protocol for Care Leavers, make clear that local authorities and their community planning partners have a role as a corporate parent to these young people, particularly those who cannot return to their families. This means that the local authority should look after these children as any other parents would look after their own children. The approach taken should therefore reflect the fact that the provision of care and support for young people by their parents does not generally cease at a particular age and may continue long after a young person has reached adulthood; and adapts to meet the changing needs of the young person as they develop. Positively delaying transitions, for example through encouragement and consistent application of Continuing Care entitlements, allowing eligible young people to stay put with their former carers up to age 21, and ensuring integrated pathways to safe sustainable and affordable accommodation is fundamental to improving outcomes in all areas for care leavers, not least in relation to the prevention of homelessness.
2.50 Under the regulations and guidance, young people leaving care should be allocated a pathway co-ordinator. This person, who may but need not be an officer of the local authority, provides support and advice to the young people in planning and making the move from care to independent living. The pathway co-ordinator is also responsible for co-ordinating the provision of services identified in the plan agreed by the local authority and the young person.
2.51 In addition, under the regulations and guidance, the young person is entitled to a supporter, who will be a different person from the pathway co-ordinator. The young person's supporter can provide support in a range of ways, including accompanying the young person to meetings with professionals.
2.52 When working with young people leaving care every effort should be made to ensure that housing/homelessness services co-ordinate with other services. It is crucial that housing, social work and other departments work together in exercising their respective functions in relation to young people being looked after, or previously looked after, and children in need under the Children (Scotland) Act 1995. This applies during the time when the young person is being looked after, when they are approaching when they cease to be looked after, and in the transition to independent living. Liaising and working with the pathway co-ordinator is the recommended way of achieving this. It is good practice to ask the young person whether they have a pathway co-ordinator and a supporter and to seek to involve these individuals in assisting the young person with their housing need. More generally, whenever young people make contact with local authorities and other related bodies, they should receive appropriate guidance and advice at that point.
2.53 Although the legal duties set out in this guidance only apply to young people who cease to be looked after at age 16 or older, the Children and Young People (Scotland) Act 2014 introduced corporate parenting duties for young people under 26, including on how corporate parents should work together. Local authorities should also take a corporate responsibility for ensuring that regular checks are made on the housing circumstances of those who have left care for at least two years after they do so. The emphasis should be on sustaining housing arrangements which meet the needs of the individual or on providing constructive arrangements where they do not. Contingency arrangements should also be put in place in case of emergencies - and young people leaving care should be aware of these arrangements.
2.54 In no circumstances should children leave the care of a local authority without alternative accommodation appropriate to the assessed needs of the young person being in place.
2.55 In no circumstances should children have to be taken into care purely as a result of their household becoming homeless.
Leaving the armed forces
2.56 Members of the armed forces can establish a local connection through the fact of their service in the area.
2.57 Where people leaving the armed forces are in a position where their license to occupy service accommodation is due to expire and they have no other accommodation they should be regarded as being threatened with homelessness. Local authorities should be aware of certificates of cessation of entitlement to occupy service accommodation which may be forwarded by the applicant several months in advance of an individual or family leaving service accommodation, in order to allow early action to be taken to prevent homelessness occurring. However, the absence of such a form should not lead to an assumption that the applicant is not threatened with homelessness or homeless on application to the local authority, and presentation of a certificate is not a condition of receiving assistance (and it is worth noting that someone fleeing domestic abuse will not have a certificate).
2.58 Local authorities should also consider forming links with veterans' benevolent and charitable organisations in their area, in order that they are aware of the particular issues facing people who have left the armed forces, and the range of assistance that is available.
Landlord action and court orders
2.59 Many people become homeless as a direct result of eviction from a tenancy or otherwise losing their right to occupy a property. Many of these situations arise as a result of rent arrears, with fewer attributable to anti-social behaviour. In many cases, housing management policies and early identification of tenants in difficulty may enable the local authority to take appropriate measures to remedy the breach of tenancy and prevent an eviction and support the tenant to sustain their tenancy. The local authority and other local agencies should have in place programmes to support people threatened with eviction. This should include the provision of independent advice and representation where appropriate.
2.60 The Housing (Scotland) Act 2010 ("the 2010 Act") introduced pre-action requirements that landlords must satisfy in all rent arrears cases before serving a notice on a tenant. Landlords must meet the pre-action requirements for all notices of proceedings involving rent arrears which are served on a tenant and any qualifying occupiers. In 2012, the Scottish Government issued statutory guidance aimed at social landlords, which gives guidance on pre-action requirements and changes to repossession orders.
2.61 In the private rented sector, the Private Housing (Tenancies) (Scotland) Act 2016 requires a private landlord to give 84 days' notice if a tenant with a private residential tenancy has lived in the let property for more than six months when a conduct ground is not being used for eviction. This gives tenants time to find alternative accommodation. A tenant can challenge any eviction action in the First-Tier Tribunal (Housing and Property Chamber) and cannot be evicted whilst their case is being heard.
2.62 Under Section 11 of the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act"), the local authority should be notified when a landlord or mortgagee raises proceedings for possession, providing opportunities for local authorities to work at preventing homelessness for the household concerned. More detail is provided on this below (see paragraphs 2.82 and 2.83 of this Code).
2.63 Local authorities and RSLs should do all they can to prevent arrears arising and to recover them when they do. They should have clear processes in place for early intervention and managing arrears. This should include ensuring tenants have access to budgeting and money advice services. This should include having robust monitoring arrangements in place to identify arrears at an early stage and engagement with tenants to provide money advice and agree a realistic payment plan.
2.64 Early personal contact may prevent arrears escalating and ensure that tenants can access support and advice to manage arrears and pay their rent.
2.65 Some of the measures adopted by local authorities and RSLs to minimise rent arrears are set out below:
- Making prospective tenants fully aware of the financial commitments associated with their tenancy including rent, council tax, household insurance, electricity, gas and any payments for common services.
- Universal Credit is delivered in Scotland using "Scottish Choices". This is delivered by the Department for Work and Pensions and offers people receiving Universal Credit the option of (tenants can choose to amend their Choices at any time):
- being paid Universal Credit twice a month rather than monthly
- having their Universal Credit housing element paid directly to their landlords. If the tenant continues to receive this directly, they remain responsible for ensuring the full rent is paid on time.
- If a tenant chooses to have their housing benefit/housing element of Universal Credit paid directly to their landlord, they must make the landlord aware they are in receipt of benefits. Failure to do so will result in the tenant being responsible for paying their rent directly to the landlord.
- Tenants may be eligible for a Discretionary Housing Payment if they claim Universal Credit or Housing Benefit and cannot afford their housing costs.
- Signposting tenants to money advice services.
- Identifying missed payments and triggering early intervention including provision of money and debt advice, agreeing a realistic payment plan with the tenant.
- Providing money and benefits advice to ensure benefit entitlement is maximised etc.
- Having clear procedures and timescales in place for agreeing realistic payment plans at an early stage to enable tenants to clear their arrears.
2.66 A local authority may still have duties to a tenant evicted for rent arrears if they apply for housing under homelessness legislation. However, if the arrears were deliberately built up by the tenant, in full knowledge of the consequences, they may be held to be intentionally homeless (but each case must be judged on its individual merits). (See also paragraph 6.18 of this Code).
Anti-social Behaviour, ASBOs and short Scottish secure tenancies
2.67 Tenancy agreements should set out the level of behaviour expected from tenants, members of their household and visitors to their home and make it clear to tenants that they are responsible for the behaviour of others in, or visiting, their home. The tenancy agreement and other tenancy information, such as tenant handbooks, should also make it clear to tenants that breaking their tenancy agreement as a result of anti-social behaviour may result in legal action to evict them, or a reduction in their tenancy rights. Tenants are responsible for ensuring that they keep to the conditions of their tenancy agreement.
2.68 Anti-social behaviour can have a serious impact on individuals and communities and needs to be clearly defined, identified, and tackled quickly and effectively when it arises. How it will be addressed should be set out in each landlord's Anti-social Behaviour Strategy/Policy. Early identification and close working arrangements between partners such as the police, local authorities, RSLs and voluntary sector organisations can help to prevent anti-social behaviour and criminal behaviour escalating and support tenants to sustain their tenancy.
2.69 The Antisocial Behaviour etc. (Scotland) Act 2004 and the Housing (Scotland) Act 2001 ("the 2001 Act") set out a range of measures that landlords or their partner agencies such as the police, can take to help address antisocial behaviour. The Scottish Social Housing Charter contains outcomes that cover the role of landlords, working with others, in managing anti-social behaviour. It highlights how landlords should carry out their housing activities in a way which complies with equalities legislation.
2.70 To complement the existing measures available to landlords to address anti-social behaviour in, or in the locality of, a social housing tenancy, a number of new provisions were introduced in the Housing (Scotland) Act 2014. These measures include:
- a new short Scottish secure tenancy (SST) for anti-social behaviour, where landlords can give a new tenancy or convert an existing SST without going to court, where that person, or other specified person, has demonstrated the specified anti-social behaviour within the previous 3 years. Further information on this can be found in the guidance 'Short Scottish Secure Tenancies for anti-social behaviour and miscellaneous changes: statutory guidance for social landlords';
- a power for landlords to extend the term of some short Scottish secure tenancies by 6 months, including those related to previous antisocial behaviour, where housing support services are being provided; and
- a new streamlined eviction process where there has been a recent criminal conviction punishable by imprisonment for tenancy related antisocial or criminal behaviour within the previous 12 months. Further information on this can be found in the guidance 'Streamlined Eviction Process - Criminal or Antisocial Behaviour'.
Anti-Social Behaviour Orders (ASBOs) and their effect upon tenancies
2.71 RSLs and local authorities have the power to change a tenant's tenancy if the tenant or someone in their household has an ASBO. This means that if a tenant or someone else in their household has a full ASBO then the relevant tenancy can be converted from a Scottish secure tenancy (SST) to a short SST. This conversion cannot be made on the basis of an interim ASBO. New tenants can also be offered short SSTs if they or members of their household are subject to an ASBO, or if they have been evicted from previous accommodation anywhere in the UK within the past 3 years. The link between ASBOs and security of tenancy exists in relation to ASBOs made on persons aged 12 or over and in respect of ASBOs made on conviction (though the behaviour should be related to the tenancy). This link between change in tenure and ASBOs is not automatic and depends on the landlord.
2.72 The landlord must provide support appropriate to enabling the tenants to help them sustain the tenancy and convert to a full SST. The types of support envisaged should all fall within the broad definition of "housing support services" and might include, for example, alcohol/debt/family counselling, or social work support. Landlords should make sure that the support it considers appropriate to enable conversion to an SST is linked to its stated objectives in granting a short SST. In other words, the landlord should make clear that the short SST is being granted because of certain behaviour and that it will convert to an SST in 12 months or the landlord will offer a full SST before that time, provided that the behaviour is altered and that the landlord will make certain support available specifically to help the tenant to successfully convert to an SST.
2.73 The short SST will convert automatically to a full SST after 12 months, if there has been no repetition of anti-social conduct. If there has been anti-social behaviour during the short SST or if the terms of the ASBO have been broken then the tenancy can be ended, leading to subsequent eviction of the tenant and their household. The local authority or RSL must apply for a court order to end this type of tenancy but the grounds for eviction are mandatory and the tenant has no right of appeal. If the landlord wants to prevent the short SST from converting to a full SST he or she needs to take action, otherwise the conversion will happen automatically.
2.74 Should the tenant refuse support offered by the landlord, it will be for the landlord to decide whether it wishes to offer the short SST on the basis that the behaviour will improve without support or whether it wishes to make acceptance of support a condition of the short SST offer.
2.75 If the behaviour that led to an ASBO is unrelated to the tenancy then landlords should not exercise their power to convert the tenancy to a short SST. An example of this might be when a member of the household gets an ASBO for anti-social behaviour that was committed outside the vicinity of the accommodation. An ASBO awarded as a result of anti-social behaviour in a pub that is not near to the accommodation should not be seen as related to the tenancy. Interim ASBOs can also be applied for by local authorities or RSLs and these do not impact upon the type of tenancy.
2.76 These powers have a double effect. First, it allows tenants who behave anti-socially to receive support to enable them to sustain a tenancy in a responsible manner and to convert to a full Scottish secure tenancy after a period of up to
12 months. Secondly, it enables landlords to downgrade a tenancy from the full Scottish secure tenancy for tenants who behave anti-socially, thereby making it easier for the landlord to end the tenancy, as a last resort, should the anti-social behaviour continue. The use of short SSTs is designed to prevent eviction in the first instance and give the tenant time to sort out problems without immediate fear of eviction.
2.77 The above powers on converting tenancies hold even if the person in the household subject to an ASBO is under 16 years old. If the tenancy is ended as a result of the child breaking the terms of their ASBO then the household may be deemed to have made themselves intentionally homeless, however this should not automatically be assumed and each case should be considered carefully. See Chapter 6 for further guidance on deciding if someone is intentionally homeless. Even if the local authority is satisfied that the homelessness was intentional, the applicant is still entitled to receive temporary accommodation, and advice and assistance from the local authority (see Chapters 8 and 9). The local authority may also have continuing duties to children and young people under the terms of the Children (Scotland) Act 1995.
2.78 It is important that those requiring community care or other support, for example, because of mental health problems, are referred for an assessment of their needs rather than being the subject only of punitive sanctions. Referrals to local community mental health services will be appropriate in most cases.
2.79 Anti-social behaviour which could lead to eviction is not of course confined to local authority tenants, or indeed social housing. Local authorities may wish to arrange for private sector landlords, social landlords and the police to be aware of what support or intervention can be offered by social work or housing departments or other agencies to deal with other tenures.
2.80 Part 4 of the Antisocial Behaviour etc. (Scotland) Act 2004 gives police the powers to close premises which cause significant and persistent disorder or serious nuisance to the local community. Statutory guidance on this part of the Act has been published and this says that if premises are closed then people staying in those premises may be threatened with homelessness. Police should work with local authorities to inform the latter of any potentially homeless people as far as possible in advance of issuing the closure notice. This should allow local authorities to work with the affected people to prevent homelessness and find new accommodation if needed.
2.81 If a tenant gives up a tenancy because of harassment or illegal eviction, the courts may award damages. Where there is evidence of harassment the local authority should encourage the tenant to report this to the police. Harassment is widely defined and, besides violence or intimidation, could include cutting off gas and electricity supplies or failure to carry out, or complete, necessary repairs. Local authorities should refer those affected by illegal evictions or harassment to sources of advice and support which will help those affected to take appropriate action.
2.82 As noted above (paragraph 2.62) under Section 11 of the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act"), the local authority should be notified when a landlord or mortgagee raises proceedings for possession. Ministers have prescribed the form of notice to be used and the manner in which they should be given in The Notice to Local Authorities (Scotland) Regulations 2008.
2.83 On receiving notification, the local authority should take the most pro-active approach possible to prevent homelessness occurring. For instance, it may be appropriate for the local authority to make initial contact with all households involved, and to make more concerted efforts where the household involved is already known to the homelessness service. Local authorities may wish to offer to negotiate with the landlord on the tenant's behalf, or to arrange for the provision of housing support services, advocacy or other services as relevant to the particular case. The local authority should also consider ways in which this information can be used to monitor the effectiveness of initial solutions to homelessness.
Helping owner occupiers to avoid homelessness
2.84 If a home owner is in financial difficulties, unable to pay their mortgage and threatened with homelessness there are measures that may provide support and potentially help the owner stay in their property. These include seeking independent financial advice from an accredited money adviser (Citizen's Advice Bureau for example). Even if repossession cannot be avoided, local authorities can help to plan for it in advance, for example through helping to set up a tenancy. This may avoid the need to rehouse people in temporary accommodation. Help may also be available under the Homeowners Support Scheme.
Prevention of recurrence of homelessness
2.85 While the actions discussed so far in this chapter may prevent homelessness arising in many cases, local authorities cannot hope to succeed in all cases. Equal attention should therefore be given to ensuring that homelessness - and in particular rooflessness - does not recur, as this can be extremely harmful for the individuals involved and is also expensive in terms of public resources. The assessment of the causes of homelessness within the authority will help to pinpoint local priorities for action.
2.86 In considering resettlement, local authorities and partner agencies should refer to the Housing Options guidance.
2.87 In addition to a general duty to promote social welfare in making available advice, guidance and assistance, social work services have an emergency power under Section 12 of the Social Work (Scotland) Act 1968 to assist persons in need in certain circumstances. Section 12 enables local authorities to give cash to, or in respect of, any person aged at least 18 years who is in need within the meaning of the Act, and requiring assistance in exceptional circumstances constituting an emergency, and where to do so would be more cost effective than giving assistance in another form. Local authorities should have regard to other means of assistance available to the person in need, and to whether any assistance given should be repaid.
2.88 Section 140 of the Local Government Etc. (Scotland) Act 1994 gives local authorities discretionary powers to assist voluntary organisations to provide for individuals. This can also include assistance in asserting these rights or fulfilling these obligations, either by making or receiving communications on the clients' behalf, or by making representations.
2.89 While homeless people, as such, are not a community care client group, homelessness officers should be alert to the possibility that some will require community care, health, or other support, to live successfully in the community; and refer them to the appropriate agency. Such referrals should be covered by protocols. Support packages must cater for the individual needs of each household - and service providers should enter into a dialogue with the recipient of services to agree to the adjustment of support levels over time. In some cases a formal community care assessment will be required. See also paragraphs 4.43 - 4.48 of this Code.
Independent living skills
2.90 Some homeless people, particularly young people or those having spent substantial periods sleeping rough or in temporary or institutional accommodation, may need to learn or relearn basic independent living skills, including budgeting, if they are to sustain their tenancy. In such cases provision of services to teach these skills by the local authority, or voluntary or other organisations, is likely to be a cost effective investment.
2.91 Homelessness officers should ensure that applicants placed in accommodation have advice on the running costs of that accommodation, including the full costs of running that property (heating and lighting costs, repairs and maintenance liabilities, service charges, and any initial costs such as rent deposits or rent in advance) and advice on meeting these costs, including advice on any housing or other benefits to which they may be entitled. Travel costs to employment, education, or training may also be relevant in some cases.
Location and support networks
2.92 In considering rehousing, local authorities and housing associations should recognise the importance of ensuring that tenancies are unlikely to be sustained if people feel isolated from friends, relatives, and other formal or informal support networks. Problems may also be caused if accommodation is located too far from their employment, or education or training establishments, or health services which are used frequently.
2.93 Many people who have experienced homelessness will have lost, or be deprived of, their social networks of families, friendships or work. The circumstances and trauma of homelessness frequently leads to feelings of isolation and loneliness before and after resettlement. Ensuing depression and mental health problems are common. There is overwhelming evidence demonstrating that isolation and loneliness are major factors in resettlement breakdown.
2.94 The strength of a person's social networks should be an integral part of the assessment of their needs and of the support offered to them in temporary accommodation and during resettlement. Where individuals and families (including children) do not have strong positive social networks, local authorities should consider whether a befriending, mentoring or mediation service may be appropriate to enable them to build or rebuild social bonds. Local authorities should develop practical local measures to enable people affected by homelessness to (re)build social networks.
2.95 The Scottish Welfare Fund is a discretionary grant based scheme that is administered by local authorities. The Fund can provide occasional assistance (financial or otherwise) to individuals, specifically by way of a Crisis Grant or a Community Care Grant.
2.96 Community Care Grants are provided where a qualifying individual needs help to establish or maintain a settled home.
2.97 Applications for Community Care Grants are for items and awards may be in cash, cash equivalent or in kind. Some examples of items for which an award might be made are:
- furniture (settee, armchair, carpets, curtains, wardrobe)
- household equipment (cooker, fridge, washing machine, bed, bedding, pots and pans)
Further information on the Scottish Welfare Fund can be found at: https://www.mygov.scot/scottish-welfare-fund/community-care-grants/
Rent deposit/guarantee schemes
2.98 In order to maximise access to the private rented sector, local authorities can enable people at risk of homelessness or those resettling from homelessness to access a local rent guarantee/deposit scheme. Access to the scheme should be provided as early as possible and local authorities should consider marketing the scheme in such a way as to ensure that the potential for early involvement is maximised. Authorities should also satisfy themselves that the applicant has the means to continuing making rental payments once they have gained access to accommodation.
2.99 For many people resettling from homelessness, a job will be an important factor in determining whether or not accommodation is sustained. Local authorities and partners should therefore consider whether any members of the household require assistance to maintain or find employment. For homeless people who have complex needs, or who have been homeless or roofless for a significant length of time, pre-vocational support will be essential.
2.100 Local Authorities should ensure they maintain close working relationships with local DWP offices, any local enterprise companies, Skills Development Scotland, as well as local businesses and voluntary organisations who may be able to offer employment, training or pre vocational activity. Many Local Authorities deliver "employment hubs" in the local communities and work closely with people to identify any potential barriers they may have preventing an immediate return to work. They should ensure they foster and use relationships with external stakeholders who have relevant expertise to assist people with complex needs, enabling them to return to and sustain employment.
2.101 For further information and advice local authorities should contact the Scottish Homelessness and Employability Network (c/o Homeless Action Scotland, Stanhope House, 12 Stanhope Place, Edinburgh, EH12 5HH).
2.102 Unmet health needs may interfere with an individual's ability to sustain accommodation. Local authorities should record information about the GP registration of all those who are assessed as homeless and should offer information about local health services to homeless people rehoused outside their existing GP area. Local authorities should also maintain close links with local healthcare providers.
2.103 The Charter of Patient Rights and Responsibilities summarises what people are entitled to when they use NHS services and receive NHS care in Scotland, and what they can do if they feel that their rights have not been respected: https://www.gov.scot/publications/charter-patient-rights-responsibilities-2/pages/3/
2.104 The NHS inform helpline (0800 22 44 88) can help with questions about health or local NHS services. Lines are open 8am to 10pm, Monday to Friday, and 9am to 5pm on Saturday and Sunday.
2.105 The Patient Advice and Support Service (PASS) is a free, confidential and independent service run by Citizens Advice to offer information, help and independent advice. PASS can be contacted via:
- Website: www.patientadvicescotland.org.uk
- Phone: 0800 917 2127
- Visiting the local citizens advice bureau
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