Summary of current legislation
The Housing (Homeless Persons) Act 1977, now consolidated into Part II of the Housing (Scotland) Act 1987, introduced statutory duties on Local Authorities to assist those who are homeless or threatened with homelessness (potentially homeless), including providing accommodation in certain circumstances.
The legislation currently requires Local Authorities to make inquiries into the circumstances of applicants to satisfy themselves whether the applicant is homeless or potentially homeless. Once the authority is satisfied this is the case, prior to 31st December 2012, it also determined whether the applicant had a priority need. However, from 31st December 2012, the priority need test has now been abolished (see Paragraph 24). The Local Authority then tests whether the applicant became homeless intentionally and, in some cases, whether the applicant has a local connection with another authority in Scotland, England or Wales. A local connection with an authority means that the applicant normally resided in that area from choice, either because he/she was employed in or had family associations with it, or for other special reasons.
Section 24 of the Housing (Scotland) Act 1987, as amended, defines homelessness for the purposes of the Act as follows. A person is homeless if he/ she has no accommodation in the UK or elsewhere. A person is also homeless if he/ she has accommodation but cannot reasonably occupy it, for example because of a threat of violence. A person is potentially homeless (threatened with homelessness) if it is likely that he/ she will become homeless within two months. A person is intentionally homeless if he/ she deliberately did or failed to do anything which led to the loss of accommodation which it was reasonable for him/ her to continue to occupy.
Section 25 of the Housing (Scotland) Act 1987, as amended, defined the categories of household regarded as having a priority need for accommodation. Further details can be found in a previous version of the Code of Guidance on Homelessness. This is available on-line at: http://www.scotland.gov.uk/Publications/2005/05/31133334/33366.
Note however that an updated version of the Code of Guidance on Homelessness has since been published. The new version can be found at: https://www.gov.scot/publications/code-guidance-homelessness-2/
The Housing (Scotland) Act 2001 amends the 1987 Act and requires councils to provide a minimum of temporary accommodation, advice and assistance to all applicants assessed as homeless, regardless of whether they have been assessed as being in priority need. The Homelessness etc. (Scotland) Act 2003 is more long-term in scope, notably introducing a phasing out of the distinction between priority and non-priority applications. The ultimate aim of the Act was to ensure that everyone assessed as being unintentionally homeless was entitled to settled accommodation from 31st December 2012.
In November 2012, the Scottish Parliament approved the Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 which gave effect to this commitment. From 31st December 2012 the priority need test for homeless households was abolished. As a result, from this date, all unintentionally homeless households are entitled to settled accommodation.
Summary of Local Authority duty to homeless households:
1. Unintentionally homeless [and in priority need]
- Provide temporary accommodation until permanent accommodation has been secured.
- Permanent accommodation is defined as:
- A Scottish Secure Tenancy (SST)
- An Assured Tenancy (not a Short Assured Tenancy) (Before 1 December 2017)
- A Private Residential Tenancy (Since 1 December 2017)
- If the applicants have previously been evicted for anti-social behaviour in the last 3 years, or if they are subject to an anti-social behaviour order - a short Scottish Secure Tenancy can be offered.
In some circumstances, the Local Authority can provide non-permanent accommodation. These circumstances are laid out in the Homeless Persons (Provision of Non-permanent Accommodation) (Scotland) Regulations 2010.
Under certain circumstances, a Local Authority may apply a local connection test and refer the applicant to another Local Authority. However, the receiving Local Authority must then secure settled accommodation for the applicant.
2. Intentionally Homeless [and in Priority Need / Homeless and not in Priority Need]:
- Provide temporary accommodation for a reasonable period of time, advice and assistance.
3. Potentially homeless, unintentionally so [and in Priority Need]:
- Take reasonable steps to ensure that accommodation does not cease to be available.
4. Potentially homeless, intentionally so [and in Priority Need / Potentially Homeless and not in Priority Need]:
- Provide advice and assistance to help retain accommodation.
The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004 came into force on 6 December 2004, and is intended to prevent the routine use of unsuitable temporary accommodation for households with family commitments. Under this Order, Local Authorities cannot put households with children and pregnant women into temporary accommodation which is not suitable, unless exceptional circumstances apply. Unsuitable accommodation is defined in the Order as accommodation which does not meet standards relating to the physical properties of the accommodation (the physical standard), its proximity to health and education services (the proximity standard) and its suitability for use by children (the safety standard).
The 2004 order was revoked by The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014, which came into force on the 21st November 2014. The 2014 order adds the additional requirement that the accommodation must be wind and watertight.
While the Order provides for exceptional circumstances, in which accommodation which does not meet the physical and/or proximity standards may be used, the safety standard must always be met. Further details can be found in the Code of Guidance available on-line at: https://www.gov.scot/publications/code-guidance-homelessness-2/
The 2014 Order specifies that the local authority may provide an applicant with temporary accommodation which does not meet the requirements set out by Article 5 of the Order, but for no longer than 14 days in total in respect of that person’s application. The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017, which came into force in October 2017, reduces the number of days from 14 to 7 days before a ‘breach’ is recorded for the applicant remaining in such unsuitable accommodation.
The Housing Support Services (Homelessness) (Scotland) Regulations 2012 came into force on 1st June 2013. These Regulations make provision in relation to the duty of Local Authorities to assess whether some persons found to be homeless or threatened with homelessness (“an applicant”) need housing support services. Regulation 2 prescribes four types of housing support services which apply for the purposes of that duty. If a Local Authority has reason to believe that an applicant may be in need of one or more of these services, it must assess whether the applicant, or any person residing with the applicant, is in need of such support. If so, the Local Authority must ensure that the service is provided to the person who needs it. Further information on these regulations can be found at: http://www.scotland.gov.uk/Publications/2013/06/3279/2.