Section 2: Proposed Changes and Questions on the Unsuitable Accommodation Order (UAO)
HARSAG recommended the following actions on unsuitable accommodation:
1. Extend the 7 day restriction of time spent in unsuitable temporary accommodation to all people experiencing homelessness.
2. Develop a timetable for the implementation of the extension.
As mentioned in Section 1 of this consultation, local authorities under the Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017 have a duty to ensure that homeless pregnant applicants and households with dependent children do not stay in unsuitable temporary accommodation for longer than 7 days, and only where they do not have suitable accommodation to offer.
In January 2019, the latest homelessness statistics showed that on 30 September 2018 there had been a 3% decrease in the number of households in temporary accommodation containing children or a pregnant member compared to the same date one year previously. However, the data also showed that there had been a 4% increase in the number of children in temporary accommodation over the same period.
In addition to these changes in the number of children staying in all temporary accommodation, during the period from April to September 2018 there were 345 reported breaches of the Unsuitable Accommodation Order, in comparison to 165 during the same period in 2017.
While it is recognised that a contributory factor to the increase may have been the introduction of the 2017 Amendment Order, which shortened the maximum number of days that local authorities can use unsuitable accommodation for families with children or pregnant women from 14 to 7 days, that does not mean that this should a tolerable situation.
However, it is clear that in considering an extension of the Unsuitable Accommodation Order to all homeless households, we need to be aware that further changes to legislation may have a further impact on a local authority's ability to comply and lead to further breaches.
Taking this into account, we wish to consider whether an incremental introduction of the extension would help local authorities manage the transition by realigning their provision, adjusting their Rapid Rehousing Transition Plans and avoiding further breaches of the Order.
One way of doing this would be to extend the order to groups of homeless people within the Order, in the same way that families with children and pregnant women are currently prioritised. Examples of groups of homeless people could be defined by age (e.g. younger or older people), by previous accommodation (e.g. prison, armed services) or experience (e.g. fleeing domestic violence).
We also want to consider whether the current definition of 'unsuitable accommodation' as set out in Section 1 would be fit for purpose when extending the Unsuitable Accommodation Order beyond families with children and pregnant women. Other groups that might be affected by the Order may deem accommodation suitable that would be unsuitable for those currently covered by the legislation.
Consideration should be given as to whether you believe that any of the individual elements set out in Section 1 referring to the location, quality and facilities that make accommodation 'unsuitable' should be amended for other persons, or for particular groups of other persons.
In addition, we also want to gather views on whether the current exemptions for refuges and supported accommodation should still apply, and whether or not an extension to all homeless households would mean that any other exemptions would be needed.
Currently, the Scottish Housing Regulator (SHR) uses Scottish Government statistics on the number of breaches, along with a number of other statistics, to carry out an annual risk assessment. Thereafter, the SHR may engage with landlords about reported breaches. In addition, Scottish Ministers write to and meet with the local authorities that have been in breach of the Order to discuss the circumstances around the breaches and to discuss the plans in place to ensure that unsuitable accommodation is not used going forward.
We want to consider whether additional sanctions could be introduced in addition to the measures undertaken by SHR and Scottish Ministers to ensure that local authorities comply with the extended Order. It is typical in legislation for sanctions to be of a financial nature and in this case would likely take the form of a fine for local authorities who breach the Order. However, we would also welcome suggestions of alternative sanctions or incentives that may ensure compliance and whether there could be enhanced responsibilities for the Scottish Housing Regulator, either by utilising their existing powers or by amending their statutory functions or powers.
At the moment the SHR has the power to make enquiries, require information, meet and discuss breaches with local authorities, set performance improvement targets, require a performance improvement plan, serve an enforcement notice and appoint a manager. It does not currently have a direct enforcement role.
We are keen to understand the impact that additional sanctions would have and to what extent this would assist with the aim of ensuring that the legislation is complied with.
The following questions are seeking your view on some of the proposals presented above:
1. Scottish Ministers have used their powers under the Homelessness etc. (Scotland) Act 2003 to limit the use unsuitable temporary accommodation for families and children to a maximum of 7 days via The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017. HARSAG has recommended that this restriction be extended to all people experiencing homelessness. Do you think we should:
Option A - Extend the restriction to all homeless people from an agreed date.
Option B - Extend the restriction to all homeless people but introduced incrementally over a period of time.
Option C - Not extend the restriction to all homeless people.
2. If the consensus for extension is option A what date would you suggest as the legal date for implementation?
3. If the consensus for extension is option B:
- What types of experiences, circumstances or characteristics would you prioritise in the incremental extension?
- Would you prefer a consistent national approach to the transition or for local authorities to take forward based on their own local circumstances?
- By what date do you consider it would be reasonable for all homeless households to be covered by the extended Order?
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.
5. Please tell us about positive impacts that extending the restriction to all homeless people may have.
6. Please tell us about any negative implications that may result from us extending the restriction to all homeless people.
7. Do you believe the current definition of unsuitable accommodation set in 2004 as set out in legislation (Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014), which focusses on the location of the accommodation and the facilities the accommodation offers, is still the most appropriate or are there any factors you would like to see changed? Please explain.
8. In extending the Order do you think the same definition should apply to all homeless households as it currently does to families with children and pregnant women? If not, please provide an explanation of how you feel the definition should be amended to take account of the extension.
9. The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 contains exemptions for certain types of refuges and supported accommodation. With the extension of the Order to all homeless households, should these exemptions still apply and do you think any other exemptions should be considered?
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.
- What additional support should be in place for local authorities to minimise the number of breaches of the Order?
- Would sanctions provide an appropriate mechanism to encourage compliance?
- If so, what sanction would you consider to be an appropriate one?
11. The performance of local authorities against their obligation to comply with the UAO will continue to be monitored, including any extension if introduced, by the Scottish Housing Regulator (SHR) as part of its role in assessing performance on discharging of their statutory duties.
Would you like to see the SHR gain any enhanced responsibilities in order to effectively monitor and assess the implementation of the extended Order?
Please explain your answer.