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Homelessness etc. (Scotland) Act 2003
You can read more about the implementation of the Act here
The Homelessness Task Force[1] was established in August 1999 to make recommendations on how homelessness in Scotland could be prevented and, where it occurred, tackled effectively. The Homelessness Task Force final report was published in February 2002 and made a total of 59 recommendations which were endorsed by the Scottish Parliament on 7 March 2002. The Homelessness etc. (Scotland) Act 2003 takes forward the recommendations that specifically relate to homelessness legislation.
Homelessness legislation takes its roots from the Housing (Homeless Persons) Act 1977 [consolidated in the Housing (Scotland) Act 1987]. It was the first act to place specific and comprehensive duties on local authorities for dealing with homelessness in their area. However, it was limited in scope. Even though an applicant was found to be homeless, a number of further hurdles had to be overcome.
These hurdles were 'priority need', 'intentionality' and 'local connection'. 'Priority need' was included to ensure that where supply was limited, families with children and the most vulnerable homeless people would have a right to local authority accommodation. 'Intentionality' was included to counter the fear that households would give up their homes deliberately, using the homelessness route to obtain better accommodation. Finally, 'local connection' was included to prevent 'magnet' cities from being overwhelmed by homeless people from other parts of the country. The applicant's success at negotiating these hurdles determined the level of help that the local authority was under a duty to provide. In effect these hurdles represented a rationing mechanism.
The Homelessness etc. (Scotland) Act 2003, combined with the Housing (Scotland) Act 2001, is one of the most progressive pieces of legislation in Europe, and updates existing legislation so that local authorities can respond effectively to homelessness in the twenty-first century.
The Act introduces a change of culture, concentrating available resources on re-housing homeless people successfully, rather than investigating whether they can be rationed out of the system.
To do this, the Act will phase out 'priority need' within ten years (by 2012), update the law surrounding 'intentionality' (Section 5-6: likely due date 2007) and suspend the 'local connection' provision (Section 8: likely due date late 2006). Section 9 of the Act (which came in to force in December 2004), contained a provision to enable the restriction of use of certain types of temporary accommodation for certain households. Section 11 of the Act (due to be in place by the end of 2006) places duties on private-sector landlords to inform local authorities if they are evicting a tenant. Finally, the Act (through Section 12, which came in to force in July 2004) enables the courts to take into account where rent arrears are the result of a delay in housing benefit payment, and therefore avoid unnecessary evictions.
The Act sets a framework for the abolition of the 'priority need' test by 31 December 2012, so that the right to permanent accommodation is extended to all people who find themselves homeless. To do this, the definition of 'priority need' will gradually be widened until all households assessed as either homeless or potentially homeless are included. This managed and phased approach allows accommodation and services to be developed for those who do not currently fall within the definition. In December 2005 interim arrangements were made for the continued phasing of 'priority need' (see overleaf for more information).
On the 30 January 2004, the definition of 'priority need' was broadened to include amongst others most households that contain a person who local authorities only had to 'have regard to', under the 1998 Code of Guidance on Homelessness. Now the range of groups who are deemed to be in 'priority need' are:
Further to this, a person will be deemed as being in priority need if she or he is vulnerable as a result of:
This strengthens the legal rights of these groups of vulnerable people. Refugees are entitled to homelessness assistance if they have been granted refugee status in the UK as a result of the upholding of their asylum claim. However, asylum seekers and other individuals who are subject to immigration control are generally not eligible for homelessness assistance unless they fall within SI 2000 No. 706 (made under the Immigration and Asylum Act 1999).
Section 3 of the 2003 Act required Ministers to publish a statement, setting out an action plan for the abolition of the 'priority need' test. The Scottish Executive in December 2005 published 'Helping Homeless People: Ministerial Statement on Abolition of Priority Need by 2012'. The statement outlines that local authorities must try and reduce by 50% the proportion of homeless households which they assess as non-priority by the 31 March 2009[2].
Currently, the proportion of those found in 'priority need' ranges from 54 % to 89 % (the local authority average is 75 %). This wide variation indicates that some local authorities will find meeting the 'administrative' target significantly harder than others.
Progress towards this target will be monitored through annual progress reports on homelessness strategies, HL1 data and LHS (Local Housing Strategies) updates. As well as checking progress the Scottish Executive will ensure that barriers to progress are identified, assessed and responded too.
Under the 1987 Act, every household assessed as either homeless or potentially homeless and deemed to have a 'priority need' must also be further assessed to see whether they have made themselves homeless intentionally. The 2003 Act replaces the duty on local authorities to investigate intentionality with a power to do so n thus local authorities will have to decide whether or not to investigate intentionality.
The 1987 Act gave local authorities the duty only to secure temporary accommodation and provide advice and assistance to those found to be intentionally homeless. Section 5-6, of the 2003 Act (likely due date 2007) recognises the need to take a more proactive approach to episodes of intentional homelessness. If a local authority chooses to investigate intentional homelessness and the household is found to be intentionally homeless, the authority will have a duty to provide a short secure tenancy with agreed support to address the cause of intentionality. For example, if it is due to a problem with rent arrears or debt, money advice and help in establishing an arrears repayment schedule could be offered. If this tenancy is successful, it will convert to a full tenancy after 12 months. If it fails, there is still a duty to offer support and hostel or short stay accommodation (Section 7).
If an intentionally homeless household has already failed such a tenancy in the previous 12 months, or if a member of the household has been evicted for anti-social behaviour in the preceding three years, or if a member of the household has an Anti-Social Behaviour Order against them - the local authority may decide to either provide a short secure tenancy with support or they can opt to provide accommodation let under hostel or short stay accommodation regulations. Again, housing support must be offered in these cases to try and bring the person up to the level where they can sustain a short tenancy for 12 months.
Currently, households found to be in 'priority need' and unintentionally homeless may be denied help from the local authority they have applied to if they are deemed to have a local connection with another local authority. In these cases, the original local authority has a power to refer them to another local authority which will then take responsibility for discharging the statutory duties. Referrals may not be made if a member of the household runs the risk of domestic abuse.
A local connection is established with a local authority by living within the local authority area, for at least six months of the previous twelve months, or not less than three years of the previous five years. Working in the local authority area, family associations and other special circumstances can also enable a household to establish a local connection with an area. It is important to bear in mind that local connection does not apply within a local authority area.
The 2003 Act (Section 8, likely due date 2006) enables the 'local connection' provision to be suspended (and if necessary, re-instated at a later date). The Act also requires the Minister to publish a statement giving further details about how this section will be implemented.
Asylum-seekers are dispersed in the UK to National Asylum and Support Service (NASS) accommodation and have no choice in where they are sent. The 2003 Act prevents Scottish local authorities from deciding that living in accommodation (NASS) was of a person's own choice. This has the effect that a refugee may decide to live anywhere in Scotland, regardless of where they were originally dispersed to n and regardless of whether the 'local connection' provision is suspended or re-instated.
The 2003 Act, through Section 9, contained a provision to enable the restriction of use of certain types of temporary accommodation for certain households across Scotland. This resulted in the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004, which specifies accommodation that is not suitable for interim accommodation. Unsuitable accommodation is defined by reference to three different types of standards: the physical standard, the proximity standard (where health and education facilities/services need to be accessible to the applicant from the accommodation) and the safety standard. If the accommodation does not meet these standards then it is termed unsuitable. Accommodation which does not meet the physical and/or proximity standards may be used in exceptional circumstances. However, the safety standard must always be met [3].
Section 11 of the 2003 Act further proposes that if a Registered Social Landlord (RSL), private landlord or lender seeks to recover possession of a dwelling, they must also inform the local authority where the dwelling is located. This will enable local authorities to consider what assistance could be provided to prevent the eviction and avoid homelessness.
Section 12 of the 2003 Act attempts to improve the rights of assured tenants when recovery of their accommodation is being sought on the grounds of rent arrears. The rights of such private tenants are more limited than their social renting counterparts. The Act proposes that recovery of possession of a dwelling when arrears to the value of three-months rent is no longer a mandatory ground for re-possession. Rather, if the rent is owed and this is a consequence of a delay or failure of a housing benefit payment, the court will apply a test of 'reasonableness'. Where grounds for repossession include persistent delays in the payment of rent, or where some rent is due, the court must also additionally consider whether these are because of a delay or failure on the part of the housing benefit system, and apply the test of 'reasonableness' (therefore avoiding unnecessary evictions).
SCSH believes the Homelessness etc. (Scotland) Act 2003 sets the framework for making significant and lasting inroads into tackling homelessness in Scotland. However, adequate resources are needed in the form of good-quality affordable housing in the right locations; well-funded support, advice and independent advocacy; and well-trained, motivated staff if the Act is to be implemented successfully and the targets are to be achieved.
Updated 3 March 2006
If you require any additional information or have any further questions, please contact Scottish Council for Single Homeless, Wellgate House, 200 Cowgate, Edinburgh, EH1 1NQ. Tel: 0131 226 4383, email: enquiries@scsh.org.uk
[1] Now the Homelessness Monitoring Group (HMG)
[2] The 2004/05 Homeless Statistical Series (HL1) will be used by LA's as a baseline for the reduction
[3] Detailed information on the standards/exceptions is given in the 2005 Code of Guidance on Homelessness
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