Temporary accommodation standards framework - legal enforcement: consultation

Section 1 – Background

The Homelessness and Rough Sleeping Action Group (HARSAG) recommended that the Scottish Government work with the SHR to explore options for enforcing the new temporary accommodation standards. The Scottish Government committed to this in its homelessness strategy.

In exercising their statutory duties, local authorities across Scotland use a diverse portfolio of temporary accommodation, including local authority, housing association, private rented sector housing stock, bed and breakfast (B&Bs) and hostels. Most people who are homeless and require temporary accommodation are accommodated in the social rented sector.

Across all of 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, Houses in Multiple Occupation (HMO) Licensing for B&B and hostels and the Repairing Standard in the private rented sector.

At the time of the 2019 consultation, existing legislation and regulation did not provide a comprehensive set of standards across all temporary accommodation stock.

A working group was established to produce a new TASF and to consider how the framework can be regulated and legally enforced.

Many of the standards and definitions presented within this framework are not new. Instead, these build upon and consolidate those in previous versions as well as the existing standards covered by legislation.

An informal consultation on the draft standards framework for temporary accommodation developed by the working group took place in June 2022. Selected stakeholders were asked by the working group to provide views on whether the necessary standards were included within the framework. For the purposes of this standards framework, the terms ‘applicant’ and ‘tenant’ are used in this document to describe and refer to the homeless household.

Unsuitable Accommodation Order

The Unsuitable Accommodation Order^[1] (UAO) was extended to all homeless households in May 2020. The extension means that the maximum number of days that local authorities can use unsuitable accommodation for any homeless person is seven days and has the effect of ending stays in unsuitable accommodation, such as B&Bs, apart from in emergencies.

UAO guidance was published in January 2021 to help local authorities in their duties to assist people who are threatened with or who are experiencing homelessness.

In all circumstances, accommodation must meet article 4 of the UAO. That means that accommodation is deemed unsuitable if it is:

(a) not wind and watertight;

(b) not suitable for occupation by a homeless household, taking into account the needs^[2] of the household; or

(c) not meeting minimum accommodation safety standards.

Article 5 provides a list of further circumstances where accommodation would be deemed to be unsuitable if it:

(a) is out with the area of the local authority, which is subject to the duty to accommodate under section 29 of the 1987 Act;

(b) is not in the locality of facilities and services for the purposes of health and education which are being used, or might reasonably be expected to be used, by members of the household, unless those facilities are reasonably accessible from the accommodation, taking into account the distance of travel by public transport or transport provided by a local authority;

(c) lacks within the accommodation adequate toilet and personal washing facilities for the exclusive use of the household;

(d) lacks adequate bedrooms for the exclusive use of the household;

(e) is accommodation within which the household does not have the use of adequate cooking facilities and the use of a living room;

(f) is not usable by the household for 24 hours a day.

(g) is not in the locality of the place of employment of a member of the household, taking into account the distance of travel by public transport or transport provided by a local authority; or

(h) is not suitable for visitation by a child who is not a member of the household and in respect of whom a member of the household has parental rights.

Under article 6 of the UAO, the standards contained within article 5 do not apply to accommodation where:

(a) the local authority believes that the applicant may be homeless or threatened with homelessness as a result of an emergency, such as flood, fire, or other disaster;

(b) the local authority has offered the applicant accommodation that meets the requirements of article 5, but the applicant wishes to be accommodated in other accommodation that does not meet those requirements;

(c) the accommodation is used wholly or mainly to provide temporary accommodation to persons who have left their homes as a result of domestic abuse and is managed by an organisation which—

(i) is not a public authority or a local authority; and

(ii) does not trade for profit;

(d) the accommodation is owned by a local authority and services relating to health, childcare or family welfare are provided to persons accommodated there.

Further to the UAO extension, additional types of accommodation were included under article 7A of the UAO (Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment (No.2) Order 2020) (2020/419)), including shared tenancies^[3], community hosting^[4] and rapid access accommodation^[5]. These supplementary types of accommodation can be deemed to be suitable under certain circumstances and for specific homeless households only.

Article 7A makes it explicitly clear that shared tenancies, community hosting and rapid access accommodation are never suitable accommodation options for families with children, pregnant people, and households where a person who exercises parental rights in respect of a dependent child who is not part of the household.

The UAO guidance should be read and used in conjunction with all other published guidance and legislation on homelessness to assess whether temporary accommodation is suitable.

Scottish Housing Quality Standard

The Scottish Housing Quality Standard (SHQS) is the key assessment for measuring housing quality in Scotland. The SHQS means social landlords must make sure their tenants' homes:

• Are energy efficient, safe, and secure
• Are not seriously damaged
• Have kitchens and bathrooms that are in good condition

SHQS Guidance

The following SHQS guidance was published in March 2011:

• Technical guidance for social landlords
• Guidance for Tenants of Local Authorities and Registered Social Landlords (RSLs)

The Scottish Government issued a minimum housing standard in Scotland in February 2004, which sets out the level below which a property should ideally not fall. This was incorporated into the Scottish Social Housing Charter.

The Scottish Social Housing Charter

The Scottish Social Housing Charter (the Charter) came into force in April 2012. A revision of the Charter was approved by the Scottish Parliament on 5 October 2022, which came into effect from 1 November 2022.

The Charter helps to improve the quality and value of the services that social landlords provide and supports the Scottish Government’s National Outcomes on communities, environment, and human rights by:

• Stating clearly what tenants and other customers can expect from social landlords, helping them to hold landlords to account.
• Focusing the efforts of social landlords on achieving outcomes that matter to their customers.
• Providing the basis for the Scottish Housing Regulator (SHR) to assess and report on how well landlords are performing. This assessment enables the SHR, social landlords, tenants, and other customers to identify areas of strong performance and areas needing improvement.

The right to adequate housing is a human right in international law. All the outcomes and standards in the Charter support this right by setting the standards and outcomes that social landlords should achieve for their tenants and other customers by delivering good quality homes and services.

The Charter is reviewed every five years with the next revision due in 2027.

Scottish Social Landlord Performance Assessment

Social landlord is the term for a council landlord, a not-for-profit landlord registered with the SHR (for example, a housing association or co-operative) and a council that does not own any housing but provides housing services, for example, services for homeless people.

There are a range of duties, obligations and responsibilities placed on social landlords by legislation and through statutory guidance. These include achieving the standards and outcomes in the Charter, duties to help people who are homeless, duties around the safety of tenants’ homes and promoting equality and human rights.

It is through these same commitments that the performance of social landlords is assessed and measured against. This standards framework will form part of these commitments.

In addition to meeting their statutory duties to prevent and alleviate homelessness, social landlords have requirements placed on them by other regulatory bodies including the SHR, the Office of the Scottish Charities Regulator, the Equality and Human Rights Commission, the Care Inspectorate, Audit Scotland, and the Scottish Public Services Ombudsman.

As required by section 31 of the Housing (Scotland) Act 2010, Scottish Ministers set the Charter standards and outcomes that all social landlords, including local authorities, are responsible for meeting when carrying out their housing activities. Social landlords should ensure their performance management and reporting systems show how well they are achieving the outcomes, identify any areas where they need to improve and enable them to report to their tenants and other customers.

The Scottish Housing Regulator

The Scottish Housing Regulator (SHR) is the independent statutory regulator of social landlords in Scotland, whose role is set out in statute and a framework^[6].

All social landlords must submit an Annual Return on the Charter (ARC) to the SHR. Landlords must provide accurate information on the Charter and contextual indicators to the SHR through their ARC.

It is each landlord’s responsibility to ensure that the data they give the SHR is accurate. Landlords should, as a matter of course for their own internal audit or for their performance management systems, retain the calculations and workings for the ARC. This evidence should be readily available to provide assurance about the accuracy and reliability of the reported data.

The SHR takes a wide approach to analysing the data submitted to by landlords, such as considering other related indicators, reviewing comments boxes, and contacting landlords for clarification. The SHR appreciates that some landlords will want to collect other data as part of their internal performance management monitoring.

Social landlords must also submit a mandatory Annual Assurance Statement to the SHR to provide assurance that their organisation complies with the relevant requirements of the Regulatory Framework, including the Standards of Governance and Financial Management that apply to RSLs. The mandatory guidance for social landlords provides more detail on the relevant guidance applicable to landlords. The Annual Assurance Statement must also set out how any material non-compliance is being addressed by the social landlord.

In undertaking its regulatory role, the SHR:

• Continually assesses each landlord to understand their performance and risk.
• Engages with landlords at different levels depending on their risk and performance profile.
• Engages with landlords in the least intrusive way possible to obtain the assurance that they need.
• Is transparent about why and how it engages with landlords.
• Gives landlords the opportunity to improve where there are problems, unless the SHR needs to act quickly.
• Uses its powers in a proportionate way. If issues with compliance are identified, it would be regulatory overreach for the SHR to dictate the course of action to undertake. Instead, it should be for the organisation to decide this through dialogue with the SHR, which is more likely to lead to more sustainable and enduring compliance.
• Takes decisive, effective action to safeguard the interests of tenants and other service users when a landlord does not have the capacity or willingness to improve.
• Focuses on the most significant risks to tenants, people who are homeless and other service users.

The SHR is responsible for monitoring the performance of social landlords and publishes data on their performance. The SHR publishes statistical information for each RSL, housing association and co-operative to monitor SHQS progress and its SHQS compliance rate over time.