Section 3: Proposed recommendations by the Prevention Review Group and consultation questions on reforming homelessness legislation to prevent homelessness
This section firstly focuses on the principles that guided the PRG approach and secondly, on the proposed recommendations for changing the current homelessness legislative framework.
Principles of the PRG
The overarching foundational principles covered in section 2 will also be relevant to this section:
- Responsibility to prevent homelessness should be a shared public responsibility and not rely solely or primarily on the homelessness service.
- Intervention to prevent homelessness should start as early as possible. In many cases this will be before issues have escalated to a point where homelessness appears imminent.
- People facing homelessness should have choice in where they live and access to the same range of housing outcomes as members of the general public, with appropriate protections to mitigate further risk of homelessness. Housing outcomes should be comparable across the prevention andhomelessness duties.
Under their principles, the PRG also recommends that the current statutory framework for homelessness should be amended to achieve the following:
- Clarify, strengthen and extend a duty to prevent homelessness, and integrate it within the main statutory framework.
- Prescribe a range of reasonable steps to be used to prevent or alleviate homelessness, based on the existing Housing Options framework, to be included in a personalised and tailored housing plan that maximises applicants' choice and control.
- Ensure the service meets the needs of specific groups at risk of homelessness, and those leaving prison, care and other institutions, and those facing a threat of homelessness living in the private rented sector.
- Ensure people requiring assistance to prevent or alleviate homelessness are assisted into accommodation which is stable and suitable to their needs, again allowing them choice and control.
- The system must be clear and accountable, providing people with appropriate and effective rights of reviews and challenge throughout the process.
The PRG was clear that its principles should underpin the outcome to 'clarify and integrate the law on homelessness prevention within the current statutory framework set out in the Housing (Scotland) Act 1987. The Group's engagement with stakeholders, including local authorities, underlined the wish for reforming legislation, formalising the role of Housing Options with clear steps to prevent homelessness as early as possible, and clarity on discharging duties towards an individual.
Q57. Do you agree with these principles?
Q58. Are there any other principles that should be included and, if so, why?
Q59. What outcomes do you foresee if the above principles were to be adopted to amend the statutory homelessness framework?
Prevention Review Group proposed recommendations for changing the current homelessness legislation
An extended prevention duty
Please note that this section makes reference to 'stability and suitability' of accommodation as terms used by the Prevention Review Group. These terms are explained more fully on pages 32-34 and, as intended by the Prevention Review Group, should be considered together and in conjunction with the package of measures on legislative change set out in this section.
The policy intention behind these proposals is to provide more choice and control to those either assessed as at risk of homelessness or homeless, not to replace the duties local authorities already have to those assessed as being homeless in Scotland.
- PRG proposal: A local authority must assist anyone threatened with homelessness within the next six months.
The legislation in relation to those threatened with homelessness is set out in sections 24 and 32 of the Housing (Scotland) Act 1987. Section 24(4) provides that, "A person is threatened with homelessness if it is likely that he will become homeless within 2 months." Section 32 goes on to set out the duties on a local authority where a person is found to be threatened with homelessness. More detail on the legislative context for homelessness in Scotland is provided at Annex A.
Section 32(2) reads, "Where they are not satisfied that he became threatened with homelessness intentionally they shall take reasonable steps to secure that accommodation does not cease to be available for his occupation." A person is threatened with homelessness if it is likely that he will become homeless within 2 months.
The PRG indicated that a longer timeframe is needed than is currently in place to take action to prevent homelessness, especially in light of the change to tenancy notice periods under the Private Housing (Tenancies) (Scotland) Act 2016. The Prevention Commission also thought addressing the prevention of homelessness earlier would mean that those facing homelessness could make informed decisions before having to respond in 'crisis mode'.
The intention behind this proposal is that legislating for action in the timescale of six months before to prevent homelessness will encourage activity at an early stage, for example, before financial difficulties or rent arrears have escalated to the point when eviction is imminent, where relationships with a landlord are deteriorating, or well in advance of an individual being discharged from an institution. It is recognised that this will require a cultural shift away from thinking in terms of homelessness, to thinking in terms of early resolution of housing problems across the local authority and other public agencies, assisting people to remain in their homes or to be rehoused rapidly without resorting to temporary accommodation, and with a strong emphasis on integrated or co-ordinated working with other services.
Q60. Do you agree with the recommendation that there should be changes to existing homelessness legislation to ensure that a local authority must assist somebody threatened with homelessness within the next six months to prevent homelessness?
Q61. How do you think a duty to prevent homelessness within six months would work in practice?
Q62. How would an assessment be made to identify whether someone was at risk of homelessness within six months?
Duty to take reasonable steps to prevent homelessness
- PRG proposal: Duty to take reasonable steps to secure that suitable accommodation is available, or does not cease to be available. The minimum statutory framework should include:
- Housing options information, advice and advocacy
- Support for landlords and tenants in the private rented sector, including landlord negotiation and assistance, rent deposit guarantee schemes and other access schemes
- Welfare and debt advice and assistance
- Advocacy support
- Support for people experiencing domestic abuse to choose the best housing outcome, including assistance to remain safely in their own home where this is their preference
- Family mediation services
- Supply of furniture or similar goods
- Referral to other relevant agencies.
The policy intention behind this proposal is to build on the best practice of housing options developed in Scotland over recent years, and ensure a minimum consistency or offer in the prevention assistance offered across the country, which local authorities can then build on according to local needs and priorities. This is similar to the legislative approach taken in Wales, and in accordance with the recommendations of stakeholders to the PRG to put the preventative housing options approach on a more formal basis.
This minimum offer should be underpinned by specific working arrangements between agencies, such as between the local authority and social landlords, prisons and other institutions, and making housing options advice available for people in court settings etc. The current duty under section 31 of the Housing (Scotland) Act 1987 is to take reasonable steps to secure that accommodation is available, and only applies where the individual is found to be homeless in accordance with the definition in Section 24 of the 1987 Act. In relation to preventing homelessness, the duty is set out at section 32 of the 1987 Act, and is a duty to take reasonable steps to secure that accommodation does not cease to be available for occupation where the person has not been found to be threatened with homelessness intentionally.
Q63. Building on the experience of housing options approaches in Scotland, do you agree with the proposal to regulate for making specific measures available or reasonable steps to prevent homelessness in legislation?
Q64. Are there any other specific measures that should be made available or reasonable steps to prevent homelessness that should be included in legislation?
Q65. Do you think the specific measures made available, or reasonable steps duties outlined, are clearly and unambiguously set out so that it is possible to measure their achievement? Do they need to be more specific?
Q66. If you agree with these new duties, what processes or procedures do you think should be put in place to encourage local authority compliance?
Personal Housing Plans
- PRG proposal: A local authority must take into account the applicant's views as part of the statutory assessment, and try to reach agreement with the applicant on their housing needs, desired outcomes and what they advise the applicant to do to help resolve their circumstances.
- The statutory assessment should form the basis of a Personal Housing Plan agreed between the local authority and the applicant.
The PRG intended that this and the following recommendations about the statutory assessment should apply to new homelessness prevention duties, and also apply to statutory assessment in cases where the applicant is homeless.
These proposals are intended to produce a minimum statutory framework to underpin an approach where the local authority and the applicant work together to identify the barriers, desired outcomes and a way forward to addressing the applicant's housing situation.
Scottish Government officials have explored the potential for a Scottish personal housing plan model, and note that there are existing and valid processes of recording people's needs and options. It is not yet clear what additional benefits would be gained from implementing a standard personal housing plan approach, given the housing support assessments and outcome tools already in use. The Scottish Government will consider how different assessment processes are valued by people using the service, and will work with local authorities to understand the range of assessment processes in place, with a view to ensuring a consistent service to homeless households wherever they are in Scotland.
Q67. How can we best ensure that an applicant's views are addressed in a statutory assessment to prevent homelessness?
Q68. Should personal housing plans form part of a statutory assessment for preventing homelessness by local authorities, or just be an option for local authorities to use with an applicant?
- PRG proposal: Where an applicant has housing support needs, the local authority must assess these and make provision to meet them.
The intention of these proposals is that where an applicant has housing support needs, the local authority must assess these and make provision to meet them, and that this should be irrespective of tenure. This may include housing support associated with Housing First as well as lower level support in order to prevent homelessness.
Please note that a duty on local authorities to provide housing support for those assessed as being unintentionally homeless by local authorities and in need of that support has been in place since 2013. The intention behind this proposal is to ensure that housing support needs are met at an earlier stage, before the homelessness application stage, through preventative activity before homelessness occurs. As indicated in the introduction to this consultation, the recommendations of the PRG were made on the basis that the intentionality provision in the current homelessness assessment are abolished. At the time of this consultation, intentionality is a power local authorities may use when assessing homelessness, having being changed from a legal duty in 2019.
Q69. Do you agree with the proposal that a local authority should assess housing support needs and make provision to meet them, as part of a new prevention of homelessness duty?
Q70. How and at what point do you think an individual's housing support needs should be assessed?
- PRG proposal: The duty to take reasonable steps would end in a range of circumstances, including by securing suitable and stable accommodation (discussed in more detail below), or where it becomes apparent that the situation cannot be resolved by taking such steps. In this case the applicant is to be owed the full duty for being rehoused.
The policy intention here is that the duty to take reasonable steps would ideally end by supporting the applicant to prevent or resolve their homelessness, by securing "suitable" and "stable" accommodation (explained more fully at pages 32-34). However, where it becomes apparent that the situation cannot be resolved by taking such steps, the applicant is to be owed the duty to be rehoused, which would also result in the applicant securing "suitable" and "stable" accommodation. There are other circumstances in which the reasonable steps duty would no longer apply, such as where the applicant withdraws their application, or where the local authority loses contact with the applicant.
In suggesting specific actions are set out in law about what are 'reasonable steps' to prevent homelessness, the intention of this proposal is that the steps are not taken indefinitely. The PRG had discussed the possibility of a maximum period to take reasonable steps to prevent homelessness through the application of a new duty over 56 days, after which the local authority must secure suitable and stable housing for the applicant. The new prevention duty on the local authority could end where suitable and stable accommodation has been secured for/by the applicant.
There is a possibility that an applicant who is defined as threatened with homelessness, who is undergoing the reasonable steps process as part of a new prevention duty up to six months before homelessness, could experience a material change of circumstances or a loss of accommodation which makes them statutorily homeless, and/or the reasonable steps being carried out are no longer appropriate. This may also apply to an applicant defined as homeless who experiences a change of circumstances which means the reasonable steps being applied are no longer relevant.
This suggests the system needs to be designed in such a way that people have access to the right support for the circumstances they are in, that it is flexible to account for a change in circumstances, and that there is no delay to them being owed a duty to be housed in stable and suitable accommodation.
The PRG developed this proposal to address situations where people with statutory homelessness status may have 'salvageable' accommodation if appropriate steps are taken, and able to avoid the trauma and disruption of having to move out of their home into temporary accommodation. There are three obvious (and fairly large) groups who might fall into this category:
- people experiencing domestic abuse, who have statutory homelessness status, as they are at risk of abuse from someone with whom they would otherwise reasonably be expected to reside, or with whom they formerly resided
- people facing eviction from a PRS tenancy
- people being asked to leave the family home.
The PRG is proposing one single application process for assistance whether requiring homelessness or prevention assistance, which in either case would result in an outcome of stable and suitable accommodation.
Q71. An applicant during the time they are receiving prevention assistance under a new prevention duty from the homelessness system experiences loss of accommodation, or other change of circumstances which make the reasonable steps agreed to be carried out no longer valid. What should the process look like to ensure someone always has access to the right assistance for the circumstances they are in?
Q72. What assistance should be provided to those who are defined as statutorily homeless, but where it may be possible to prevent them from becoming homeless from their current accommodation (while ensuring it meets the definitions of suitable and stable)? This might include:
- People experiencing domestic abuse and who therefore have statutory homelessness status
- People facing eviction from a PRS tenancy
- People being asked to leave the family home.
Meeting the needs of specific groups
- PRG proposals:
- Anyone leaving these institutions within the next six months with no accommodation arrangements in place should be considered as threatened with homelessness:
- Prison or youth detention accommodation
- The armed forces
- Hospital – without suitable accommodation to go to.
- Homelessness and housing options services must work with other services and voluntary sector partners to ensure that the service meets the needs of these groups, and any other that they specifically identify:
- Those experiencing domestic abuse
- Those going through legal proceedings which may result in the loss accommodation
- Those with mental health conditions or impairments
- Young people
- Those facing homelessness within the private rented sector.
- Local authorities should agree protocols and ways of working with relevant bodies such as social landlords, prisons, specialist domestic abuse services and other relevant services to support this work, and the Homelessness Code of Guidance should be updated to include specific instructions on this.
Proposals for new duties to prevent homelessness for those leaving institutions is also covered in section 2 of this consultation, emphasising the importance of this key issue. The PRG highlighted that certain parts of the population are at greater risk of homelessness than others. Those leaving (or entering) particular institutions can often find themselves without accommodation when they move on, including those who may be under the age of 18. Local authorities will, in many cases, already be taking the needs of specific groups into account as part of their local Rapid Rehousing Transition Plans (RRTPs).
Q73. Do you agree with the proposal for meeting the needs of specific groups?
Q74. Is there anything you would add to these proposals that may strengthen legislative changes to prevent homelessness amongst specific groups?
Specific groups: people experiencing domestic abuse
- PRG proposals:
- Assistance from homelessness services to prevent homelessness must include support and security measures to enable people experiencing domestic abuse to remain in their homes safely where this is the applicant's preference.
- The definition of abuse within homelessness legislation is expanded to cover both the Protection from Abuse (Scotland) Act 2001 and the Domestic Abuse (Scotland) Act 2018).
- Homelessness prevention services should work with other partners to ensure they are able to meet the needs of people requiring housing assistance due to domestic abuse.
- Local authorities support victims of domestic abuse to access exclusion orders.
Please note: these recommendations are included here as part of the PRG report relating to proposed changes to homelessness legislation, but specific questions on homelessness for those experiencing domestic abuse can be also be found in section 2.
Q75. Do you agree with these proposals on preventing homelessness for people experiencing domestic abuse?
Q76. Is there anything else that should be included in considering new legislative proposals on the prevention of homelessness resulting from domestic abuse?
Prevention Review Group proposed recommendations for stability and suitability of accommodation
- PRG proposals:
- The criteria for identifying appropriate housing options shifts to focus on the stability and suitability of the accommodation, with suitable safeguards.
- Stability: all accommodation must be expected to be available for a minimum period of 12 months.
- Stable accommodation should be defined to include to:
- A Scottish secure tenancy (SST) or short Scottish secure tenancy (SSST)
- Owner occupation (e.g. LIFT scheme – Low Cost Initiative for First Time Buyers)
- Private Residential Tenancy (PRT) where there is an expectation that the accommodation will be available for at least 12 months, for example, through receiving an assurance from the landlord that they are not intending to sell during that time
- Other forms of accommodation, for example, with a parent or a friend, where the owner/landlord has provided in writing their intention that the accommodation will be available for at least 12 months, and the local authority is satisfied with this reassurance.
Stability of accommodation
For those households who are assessed by local authorities as homeless and unintentionally so, the law currently requires a local authority to secure permanent accommodation. This is defined as a Scottish Secure Tenancy, Short Scottish Secure Tenancy or Private Residential Tenancy. These tenancies come with a considerable degree of security of tenure: a landlord must meet the statutory criteria for eviction, and a court or tribunal must oversee the lawfulness of the proposed eviction.
The PRG wanted to allow people who are facing potential homelessness the same range of accommodation options as are available to any member of the general public. This would allow applicants choice and control over where they live, either to remain in their current accommodation or to be rehoused as rapidly as possible and prevent homelessness, while ensuring appropriate and adequate protections for people, whether they are subject to a tenancy or an occupancy agreement.
The PRG highlighted that there must be safeguards in place to ensure that the accommodation is stable and suitable for the household, to resolve any risk of homelessness, but it should not be limited to just social and private tenancies. This was a strong theme in the discussions of the Prevention Commission, who noted people in the greatest housing need often had fewest housing options. They felt that people should have the same options as other members of the public, while balancing this with safeguards to give people stability. They identified tenure as just one of the factors which may influence people's decisions regarding housing choice.
The term 'stable' accommodation was intended by the PRG to be accommodation which is reasonably expected to be available for a minimum of 12 months, either through a tenancy or other agreement. It was intended by the PRG that any accommodation used to discharge either the prevention duty or the full rehousing duty meets the criteria of suitability and stability, to be defined in regulations. The policy intention is that stability and suitability is intended for both the prevention and alleviation of homelessness, i.e. prevention and rehousing duties.
It is also to bring greater alignment with health and social care related accommodation, specifically supported accommodation. This type of accommodation generally uses occupancy agreements rather than SSTs or PRTs. It also intends to create a legal mechanism with some protections for people to return to the family home (for example, following successful mediation), if that is appropriate for them.
This is the policy intention, with the PRG looking to ensure strong protections, both through the requirements for stability and suitability, further requirements for accommodation not protected through a tenancy, and through ensuring a discussion between the local authority and the applicant about what options are desirable and suitable for the applicant.
Q77. Do you agree with the criteria proposed for the stability of housing outcomes?
Q78. Do you agree that 12 months is an appropriate minimum expected period for accommodation to be available (regardless of the type of tenure) for people who are threatened with homelessness or have become homeless?
Q79. How do you see this working in a) a private tenancy; b) accommodation with an occupancy agreement; and c) those returning to the family home or to live with another relative?
Suitability of accommodation
- PRG proposal: Suitability: All accommodation must be suitable to the needs of the household.
- Suitability will cover grounds relating to the accommodation and those relating to the household including:
- The best interests of any children in the household, or for whom the individual has parental responsibility
- Location and access to relevant services, employment (including future prospects, for example, where a lone parent is planning to return to work), caring responsibilities or education, family support and social networks
- Needs relating to health or disability
- Where abuse is a factor (domestic or otherwise), proximity to the perpetrator/victim.
Please note that for some people, suitability may also relate to their culture, for example suitable accommodation for a Gypsy/Traveller may be a caravan or residential mobile home rather than housing.
Q80. Are these the right grounds to consider in deciding on the suitability of housing outcomes? Are there any other grounds that should be considered?
Q81. Do you think the criteria proposed for both stability and suitability of housing outcomes would allow people a wider range of housing options to either prevent homelessness or rehouse someone who has become homeless, and that could lead to better outcomes for the applicant?
Safeguards for non-standard accommodation options as part of a new prevention of homelessness duty
- PRG proposal: Social or private tenancy or owner occupation should be considered as 'standard' discharge. Any other form of accommodation ('non-standard') may be considered for discharge of the duty, where these additional safeguards are met:
- The accommodation must have appropriate facilities for settled living, including:
- i. 24-hour access
- ii. adequate toilet and washing facilities
- iii. access to kitchen facilities
- iv. a private bedroom
- v. a statement of rights and responsibilities in relation to the accommodation.
- Applicants must give written consent to be discharged into a non-standard form of accommodation (i.e. they have a veto).
Q82. When taken with the general criteria for suitability and stability, do these additional safeguards provide the right safeguards to ensure these accommodation types (non-standard) are always suitable and stable? Are there any additional safeguards that could be put in place?
PRG proposed recommendations for enforcing people's rights
Right to review
- PRG proposal for right to review: There should be a comprehensive right to review which covers the following decisions:
- Decision as to whether someone is homeless or at risk of homelessness
- Decision to refuse an application
- Decision as to whether any accommodation secured discharges the local authority's duty to the applicant
- Decision to terminate interim accommodation pending an assessment or review
- A review of the accuracy of the assessment
- Any decision relating to a housing support needs assessment
- Decisions relating the reasonable steps a local authority may take to prevent or alleviate homelessness
- Decisions to end assistance to prevent someone's homelessness
- Decisions to notify another local authority under local connection criteria
- Any applicant should still be able to request a review even if they have accepted an offer of accommodation.
Q83. Do you think any additional measures are needed to ensure a right to review by the local authority within the proposed legislative measures to prevent homelessness?
Right to appeal
- PRG proposal for right to appeal: Applicants can challenge decisions through the Housing and Property Chamber of the First-tier Tribunal for Scotland. Appeal grounds should be on both points of law and the merits of a decision.
This is a far reaching recommendation that requires careful consideration. The Scottish Government has stated that it is keen to ensure the system is transparent and can be held to account so that it works effectively, and it can be challenged when it fails to work as it should, to provide full accountability in a system which is accessible, proportionate, and seeks to support and protect people in such a vulnerable situation as losing their home.
Q84. What do you think are the key considerations in any appeal process linked to new legislative measures to prevent homelessness as outlined?
- PRG proposal on regulation: The Scottish Housing Regulator (SHR) should report annually on the experiences of households facing homelessness and the threat of homelessness as it does currently for social tenants.
The SHR currently report on landlords' performance in achieving the Scottish Housing Charter in their annual National Report, and that includes some reporting on homelessness. SHR also publish annually a report for every landlord and provide an online landlord comparison tool. The annual reporting is based on the data received in the Annual Return on the Charter, supplemented where relevant with qualitative information from the National Panel of Tenants and Service Users, which usually includes information about the experiences of people who have experienced or are experiencing homelessness.
Q85. Do you have anything to add to the proposal on the role of the Scottish Housing Regulator in relation to proposals for new legislative duties to prevent homelessness?
Q86. What implications do you think these proposals have for other regulatory bodies?
Strategic housing needs assessments
- PRG proposal on strategic housing needs assessment: As part of the local authority Local Housing Strategy required under section 89 of the Housing (Scotland) Act 2001, an assessment should be carried out of the needs of persons in the area for housing support.
Q87. Do you agree that there should be a general assessment of housing support needs of persons (separate to assessments for individuals) in an area as part of the Local Housing Strategy?