Section 1: Background
Homelessness has a strong legislative rooting in Scotland. Under the Housing (Scotland) Act 1987 a person should be treated as homeless, even if they have accommodation, if it would not be reasonable for them to continue to stay in it.
In April 2003, the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act") received Royal Assent and legislation was introduced to radically overhaul Scotland's existing homelessness laws by, in the main, amending the Housing (Scotland) Act 1987 and the Housing (Scotland) Act 2001. The 2003 Act primarily affects how local authorities carry out their homelessness functions, strengthening people's rights to support when they are facing homelessness. The 2003 Act also improved the housing rights of people experiencing domestic abuse and provided a mechanism for the abolition of priority need which then followed in 2012.
Renewed commitments on preventing, tackling and ending homelessness
In 2017 the Scottish Government established HARSAG to provide recommendations to Scottish Government Ministers on the actions and solutions needed to eradicate rough sleeping and transform the use of temporary accommodation in Scotland.
The work of HARSAG was complemented and informed by the work of the Local Government and Communities Committee of the Scottish Parliament. The final HARSAG report highlighted the challenges we face and set out 70 recommendations for action needed across national and local government in conjunction with other partners, to eradicate rough sleeping, transform the use of temporary accommodation and end homelessness.
The recommendations were firmly rooted in the views of people with experience of homelessness and rough sleeping. The Aye We Can report prioritised the views of people with lived experience and ensured that HARSAG's recommendations were based directly on people's experiences and priorities.
The Scottish Government accepted all 70 of the recommendations, in principle, and along with recommendations made by the Scottish Parliament's Local Government and Communities Committee, they have now been translated into the Ending Homelessness Together High Level Action Plan which was published by Scottish Government and COSLA on 27 November 2018. The Action Plan sets out a five year programme, to be delivered in partnership with local authorities and others, to transform temporary accommodation and end homelessness.
A key overarching strand to the Action Plan was to move to a system of rapid rehousing by default with the aim of preventing homelessness by prioritising settled housing for all. This will result in fewer people needing to spend less time in temporary accommodation. Local authorities have produced 5 year Rapid Rehousing Transition Plans which came into effect on 1 April 2019.
Transforming Temporary Accommodation
As mentioned in the Introduction to the Consultation, one of four key questions addressed by HARSAG was how to transform the use of temporary accommodation in Scotland.
HARSAG's report on transforming temporary accommodation sought to provide recommendations that would significantly reduce the use of temporary accommodation by reducing overall demand – by preventing homelessness in the first place, and ensuring the supply of housing both for social rent and for private rent is adequate to enable a default to rapid re-housing.
HARSAG went on to say that where temporary accommodation is necessary, it should be of a good standard, well regulated, and time limited – and that people who needed or chose periods in temporary accommodation would be well supported from 'day one' in accessing, using and moving on from temporary accommodation. HARSAG also set out a series of recommendations on funding temporary accommodation with the aim of lowering rent levels for those living there.
Temporary Accommodation in Scotland
In drawing their conclusions on temporary accommodation HARSAG took into consideration evidence from the 'Aye We Can' research and an interim report from Heriot Watt, commissioned by Social Bite on behalf of HARSAG, which set out an analysis of the current use of temporary accommodation across Scotland.
In November 2018, Heriot Watt published the final report on Temporary Accommodation in Scotland which provided a detailed understanding of the nature, purpose and use of temporary accommodation across Scotland. The report provided in depth analysis from six local authority case studies, assessing local patterns in prevention, temporary accommodation provision, the costs and affordability of living in temporary accommodation and drew on the experiences of people living in this type of accommodation and the impact it has on their lives.
This report found that the quality and suitability of all forms of temporary accommodation varied considerably over local authority areas and suggested that measures should be introduced to ensure that all forms of provision meet standards of good repair, cleanliness, adequate facilities and furnishing and appropriate buildings management.
The report found that the most negative experiences faced by homeless households, was where the temporary accommodation they have been placed in is unsuitable for their needs, for instance, due to health conditions, overcrowding, or because it leaves them far from their friends and family or key services (e.g. schools).
Improving the Standard of Temporary Accommodation
HARSAG recognised that while the overall aim of their temporary accommodation recommendations was to reduce the requirement for temporary accommodation, there is still a need to provide good quality temporary accommodation that acts as a stepping stone, rather than a hindrance, to settled mainstream accommodation.
They outlined their desire to ensure that temporary accommodation in 21st century Scotland is good quality, safe, warm and affordable and were clear that there was a need to improve standards and consistency of temporary accommodation provision.
In order to do so recommendations were made on extending the Unsuitable Accommodation Order and improving temporary accommodation standards.
Unsuitable Accommodation Order
Specifically for unsuitable accommodation, HARSAG made the following recommendation aimed at reducing the amount of time spent in unsuitable accommodation to all people experiencing homelessness.
HARSAG’s recommendation 3.15 (Interim Report)
“Extend the 7-day restriction on unsuitable temporary accommodation to all homeless people - Currently, there is a legal limit of seven days for families and pregnant women, but no limit at all for any other groups. A change in the law would require councils to move people into permanent accommodation quickly - or at the very least into more suitable accommodation that, whilst still temporary, is fit to live in.”
Temporary Accommodation Standards
HARSAG made the following recommendation aimed at producing new standards for temporary accommodation to ensure that any time spent in temporary accommodation causes minimal harm and disruption to people's lives and supports them in getting back to a settled home that meets their needs.
HARSAG’s recommendation 3.14 (Interim Report)
“Introduce a legally enforceable standards framework for temporary accommodation – The Scottish Government should take the CIH and Shelter Scotland standards as a framework and consult the sector including local authorities, housing providers, third sector partners and those who have experience of temporary accommodation to produce a set of agreed standards covering all types of temporary accommodation.”
In accepting the recommendations made by HARSAG we committed in our Action Plan to consult on extending the seven day restriction on time spent in unsuitable accommodation to all households experiencing homelessness and to consult on its implementation timetable; to work with stakeholder to produce new standards for temporary accommodation, including, providers, commissioners and those with direct personal experience of living in temporary accommodation; and to explore the options for enforcing the new standards and what processes are needed to monitor how the standards are being implemented and maintained.
Unsuitable Accommodation Order legislation
The Homelessness etc (Scotland) Act 2003 included powers to limit the use of bed and breakfast (B&B) accommodation for families and children. This power was used to introduce the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004, which required local authorities to ensure that homeless households with children and pregnant women are not placed in unsuitable temporary accommodation unless exceptional circumstances apply.
In 2014, the Homeless Persons (Unsuitable Accommodation) (Scotland) Order limited the time that local authorities could place homeless applicants that were pregnant or a household which includes dependent children in temporary accommodation that was unsuitable for no longer than 14 days, and only where the local authority had no suitable accommodation immediately available. This order replaced the 2004 Order. Unsuitable accommodation is defined in the order as accommodation which does not meet standards relating to physical properties of the accommodation, its proximity to health and education services and its suitability to be used by children. Consequently the use of B&Bs for such households is deemed unreasonable.
The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017 reduced the maximum time spent in unsuitable accommodation from 14 days to 7 days for the same group i.e. pregnant applicants and households with dependent children, but there is no definition of unsuitable accommodation for any other groups, and therefore no limit on the time other groups can spend in unsuitable accommodation.
The definition of what constitutes unsuitable for pregnant applicants and households with dependent children refers to the location of the accommodation, the quality of the accommodation and the facilities that are available there.
A property would be deemed as unsuitable if it was located:
- Out with the area of the local authority;
- Away from facilities and services for the purposes of health and education which would be used by the household members;
A property would also be deemed as unsuitable if it:
- Was not wind and watertight;
- Was unsuitable for occupation by children;
- Lacked adequate toilet and personal washing facilities for the exclusive use of the household;
- Lacked adequate bedrooms for the exclusive use of the household;
- Lacked adequate cooking facilities and use of a living room; or
- Was not usable by the household for 24 hours a day.
There are exemptions where the Unsuitable Accommodation Order does not apply:
- Where the household has become homeless as a result of an emergency, such as flood, fire or disaster; or
- Where a household has been offered alternative accommodation but wishes to stay in 'unsuitable' accommodation; or
- Where the accommodation is for a women's refuge or is local authority supported accommodation which provides services to a household for the purposes of health, child care or family welfare.
The exemptions for refuges and local authority supported accommodation exist to ensure that a barrier does not occur that may prevent a household accessing emergency accommodation when fleeing domestic abuse.
Standards in Temporary Accommodation – Current Guidance and Legislation
In exercising their statutory duties, local authorities across Scotland utilise a diverse portfolio of temporary accommodation beyond bed and breakfast accommodation including local authority, housing association and private rented sector housing stock and hostels. The majority of people who are homeless are housed on a temporary basis in the social rented sector.
Across all these different types of accommodation there already exists a wide variety of legislation that cater for physical standards of accommodation which are largely tenure specific. These include the Tolerable Standard which applies to all property, the Scottish Housing Quality Standard which applies to social rented sector properties, HMO Licencing for B&B and hostels and the Repairing Standard in the private rented sector.
The Scottish Government, published a Code of Guidance on Homelessness in 2005, which purpose was to help guide local authorities in their duties to homeless and potentially homeless people and under Part II of the Housing (Scotland) Act 1987 (as amended by the 2001 and 2003 Acts) sets out the powers and duties of local authorities dealing with applications from people seeking help on the grounds that they are homeless or threatened with homelessness.
The Code of Guidance on Homelessness also included guidance on the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004 (now replaced by the 2014 Order) which included some standards which temporary accommodation for households with children and pregnant women must meet and which are explained above.
In 2011, Shelter Scotland and Chartered Institute of Housing Scotland (CIH Scotland) published Guidance on Standards for Temporary Accommodation which contains a list of standards that went beyond just physical, proximity and safety standards and had been developed in consultation with housing and homelessness professionals from a range of organisations who provided or managed temporary accommodation as well as input from people who had stayed in temporary accommodation.
Although this guidance is not statutory, it was intended as a good practice for temporary accommodation providers and to complement the work of the Scottish Housing Regulator.
HARSAG believes that better standards could be achieved through the introduction of legal mechanisms to improve practice and recommends this via secondary legislation and statutory guidance.
This consultation provides you with an opportunity to share your views on the plans to:
- extend the definition of unsuitable accommodation to all households experiencing homelessness and its implementation timetable;
- limit the maximum time a person can be required to spend in unsuitable accommodation to 7 days for all households (subject to the current exemptions);
- introduce new standards for all types of temporary accommodation; and
- enforce and monitor the new standards when introduced.