Section 7: Annexes
Homelessness has a strong legislative basis in Scotland. Under the Housing (Scotland) Act 1987, ('the 1987 Act') a person should be treated as homeless if they have no accommodation. It is possible for a person who has accommodation to be treated as homeless. For the person to be considered as having accommodation, that accommodation needs to be reasonable for the person to continue to stay in. The Housing (Scotland) Act 2001 also introduced changes to homelessness legislation, including the right to review a homelessness decision.
In April 2003, the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act") 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, marking a significant departure from the approach taken in any other parts of the UK.
Proposals were also made to modify the intentionality and local connection parts of a homelessness assessment made by local authorities. The duty to investigate intentionality became a power rather than a duty in 2019 and proposals to modify local connection will be introduced this parliamentary term.
Legislation is underpinned by the statutory Code of Guidance on Homelessness, which was updated in 2019. Statutory Homelessness Prevention Guidance (2009) was also published by the Scottish Government, followed by statutory guidance on the interests of children facing homelessness in 2011, and Guidance on Housing Support Duty to Homeless Households for those assessed as being unintentionally homeless and in need of housing support, which came into force in 2013.
In 2017, the Scottish Government established the Homelessness and Rough Sleeping Action Group (HARSAG) to provide recommendations on the actions needed to eradicate rough sleeping and transform the use of temporary accommodation in Scotland. The final HARSAG report set out recommendations for action needed across national and local government in conjunction with other partners.
The recommendations sought to reflect the views of people with experience of homelessness and rough sleeping. The Aye We Can report ensured that HARSAG's recommendations were based directly on people's experiences and priorities.
The recommendations have now been translated into the Ending Homelessness Together High Level Action Plan published by Scottish Government and COSLA in November 2018, and then an updated Ending Homelessness Together action plan, published in October 2020.
A key strand of Ending Homelessness Together was to move to a system of rapid rehousing by default with the aim of preventing homelessness by prioritising settled housing, including the use of the Housing First model for those with more complex needs. The intention is that this will result in fewer people needing to spend less time in temporary accommodation. Local authorities have produced five year rapid rehousing transition plans which include their locally developed plans to prevent homelessness in their area.
The latest annual update to the Scottish Parliament on progress towards ending homelessness in Scotland was published in October 2021: https://www.gov.scot/publications/ending-homelessness-together-annual-report-2021/.
The Prevention Review Group (PRG)
One of HARSAG's key recommendations was to introduce a prevention of homelessness duty in Scotland. The Prevention Review Group was established to produce recommendations on how this may be best achieved. The Group's report, Preventing Homelessness in Scotland, was published in early 2021.
The Group's foundational principles were made clear in their final report:
- There should be a collective responsibility across public services to prevent homelessness
- Intervention to prevent homelessness should start as early as possible
- People facing homelessness should have an appropriate degree of choice in where they live and access to the same accommodation options as other members of the public, with protections in place to prevent them from becoming homeless again.
The final report provided recommendations in two broad sections; placing duties on wider public bodies and landlords and changing existing homelessness legislation to improve prevention.
Duties on wider public bodies and landlords
The recommendation of new duties on wider public bodies and landlords to prevent homelessness marks a potentially significant change in current arrangements. While it has been become increasingly clear in recent years amongst the housing and homelessness sector, and those with lived experience of homelessness, that a range of public bodies may have a role in preventing homelessness, current legal duties in this area largely sit in the housing departments of local authorities and, in some cases, with social work.
The PRG's final report was clear of the need for change in this area highlighting that
'People facing housing difficulties may be involved with various services before they make contact with housing or homelessness service, providing potential opportunities to act early. Health and social care services, children's services, police and prisons may all work with people who are at risk of homelessness, as well as social and private landlords, providing opportunities to identify issues early and intervene.'
For example, past studies have emphasised the strong correlation between contact with health services and homelessness https://www.gov.scot/publications/health-homelessness-scotland and in the contact with a myriad of different services, including criminal justice, faced by some of those experiencing homelessness who also face severe and multiple disadvantage: https://lankellychase.org.uk/publication/hard-edges-scotland/. The PRG recommendations also aim to ensure that nobody leaves an institution without an appropriate place to stay.
The other element of this part of the PRG final report are the new duties proposed for landlords in both the social rented and private rented sector (PRS). The Group recognised that many social landlords already undertake significant activity in this area, with its proposals intending to formalise current responsibilities as duties, so that social landlords take action within their powers to identify and mitigate risk of homelessness as early as possible. The proposals suggest local authorities should ensure that their service is set up to support people at risk of homelessness from the PRS, so that homelessness is prevented where possible, and to ensure that the PRS can be used to discharge duties where appropriate.
The issue of domestic abuse and preventing homelessness is a common feature of both PRG proposals for new duties both on wider public bodies and landlords, and in making changes to existing homelessness legislation. The biggest difference between men's and women's homelessness is the impact of domestic abuse, which is the most common reason for women making a homelessness application.
While making recommendations around a number of specific groups that may be at risk of homelessness, including children and young people, the PRG made a point of not mentioning those who may have experienced the care system in their recommendations.
They recognised the local authority's primary responsibility to those leaving care up to the age of 26 is in relation to their role as corporate parent and did not want to create conflicting duties. Stakeholders also argued that current statutory provisions needed time to bed in.
Proposed changes to existing homelessness legislation
There is a strong legislative basis for addressing homelessness in Scotland.
Under section 32 of the 1987 Act, a local authority is under a duty to take reasonable steps to secure that accommodation does not cease to be available for occupation. However, under the 1987 Act, there is no duty on a local authority to take reasonable steps to secure accommodation for those at risk of homelessness.
The recommendations from the PRG include the significant change to place a duty on local authorities to take steps to prevent homelessness within six months of potential homelessness. In making a series of recommendations, the PRG are clear in their final report that they have 'developed a comprehensive set of proposals which, if enacted, would transform the homelessness system to focus on helping individuals as early as possible, so that as few people as possible lose their homes and face the trauma and indignity of homelessness, and avoid the disruption of having to move into temporary accommodation. The homelessness system should become the last resort safety net it was intended to be, with most people helped well before they reach that acute crisis stage'.
Another significant element in the recommendations is that the 'reasonable steps' taken to prevent homelessness by local authorities should be prescribed in regulations, which is not currently the case. It is also recommended that the steps to prevent homelessness, starting up to six months before potential homelessness, should be undertaken for up to 56 days, before other homelessness duties are enacted.
Current prevention activity and housing options
The PRG final report made reference to recent and current activity to prevent homelessness in Scotland. The main approach in this regard has been that of 'housing options', adopted by local authorities from in Scotland around 2010, working with partners to prevent homelessness, which also led to the development of five regional local authority led Housing Options Hubs to support activity in this area.
Despite apparent progress in this approach in reducing homelessness applications in Scotland from 2010, the PRG final report highlighted concerns from local authorities about how to do effective homelessness prevention within the current statutory framework, particularly in light of a 2014 Housing Options report from the Scottish Housing Regulator, and noted that 'a tension emerged between the non-statutory Housing Options approach and statutory homelessness framework'.
Housing Options Guidance issued by the Scottish Government in 2016 suggested that 'when someone approaches the local authority for accommodation, or for assistance in obtaining accommodation, and if the Local Authority has reason to believe an applicant is homeless or threatened with homelessness within 56 days, then the Local Authority has a statutory duty to investigate'. The PRG noted that in 2019/20, local authorities recorded less than 5% of homelessness applications being related to a threat of homelessness rather than current homelessness. The Scottish Government have already made clear that the impact of the housing options approach in its current form is unlikely to have a further significant impact on reducing numbers of homelessness applications.
Changes in Wales and England
While recognising the difference in statutory frameworks on homelessness across the UK, the PRG did identify lessons from the introduction of prevention of homelessness legislation in Wales, and subsequently in England, in recent years. There has been more emphasis on helping people at an early stage, so that they do not lose their homes at all, or are rehoused rapidly without having to experience homelessness. In both countries, this is particularly beneficial for those households not likely to be entitled to a full rehousing duty because they are not found to be in priority need (already abolished in Scotland).
Evaluations of the impact of the new legislation in Wales and England suggest that it has led to a more proactive and person-centred culture, although implementation has not been as consistent or effective as might be hoped. However, there have been decreases in the rate of full homelessness acceptances in both England and Wales, following the introduction of new prevention legislation there.
The Prevention Commission
Another significant part of the work of the PRG was the role of the Prevention Commission, which fed into the work of the group by giving a voice to those with lived experience of homelessness. The PRG final report highlighted that the key themes identified by the Commission during this process were the importance of choice and control, stating that 'those in the greatest housing need often have fewest housing options', and of the 'duty to ask and act' on public bodies through a 'requirement to routinely ask about housing, and then act on that information'.
The Scottish Government committed to consult on the introduction of a prevention of homelessness duties through changing homelessness legislation, placing new duties on public bodies to prevent homelessness and what processes are needed to monitor how the new duties are being implemented and maintained. Following the conclusion of this consultation, it is the intention to bring forward proposed legislative changes during 2023.
Membership of the Prevention Review Group
Chair: Professor Suzanne Fitzpatrick
Core working group members:
- Cllr Elena Whitham, East Ayrshire Council / COSLA
- John Mills, Fife Council/Association of Local Authority Chief Housing Officers (ALACHO)
- Susanne Millar, Glasgow City HSCP
- Matt Downie, Crisis
- Gordon MacRae, (later replaced by Jess Husbands, Adam Milne), Shelter Scotland
- Sally Thomas, (later replaced by Jeremy Hewer), Scottish Federation of Housing Associations (SFHA)
- Callum Chomczuk, Chartered Institute of Housing (CIH)
- Maggie Brunjes, Homeless Network Scotland
- Tom Mullen, University of Glasgow
- Ruth Whatling, Scottish Government
- Kathy Cameron, (later replaced by Katey Tabner, Laura Caven), COSLA