Overview | Policy and legislation | People at risk of homelessness | Homelessness strategies | Benefits | Prevention & tenancy sustainment

Policy and legislation

Background

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. For a pictorial overview of the legislation and local authority duties (PDF file), click here.

Homelessness Task Force

The Homelessness Task Force was established in August 1999 to make recommendations on how homelessness in Scotland could be prevented and, where it occurred, tackled effectively.

Its first report, published in April 2000, made recommendations about changes to legislation, which were incorporated into the Housing (Scotland) Act 2001 (see below)

The Homelessness Task Force’s final report was published in February 2002 and made a further 59 recommendations which were endorsed by the Scottish Parliament on 7 March 2002. SCSH published a Briefing at the time. The Homelessness etc. (Scotland) Act 2003 takes forward the recommendations which specifically relate to homelessness legislation.

The Task Force web pages can be viewed here.

The Homelessness Monitoring Group was established in 2002 to oversee the implementation of the Homelessness Task Force recommendations. The group meets approximately quarterly and it’s membership includes SCSH. The Homelessness Monitoring Group submits an annual report to the Scottish Parliament. The first report of the Homelessness Monitoring Group can be found here.

The Housing (Scotland) Act 2001

A briefing on the 2001 Act is available on the SCSH site here. Or you can view the legislation in full here.

In terms of homelessness, the 2001 Act introduced the following:

• The duty of local authorities to produce homelessness strategies - read more on strategies here.
• A new duty to provide temporary accommodation to all homeless people before assessment.
• A minimum package of rights for all homeless people, including a strengthened advice and assistance duty together with temporary accommodation for a reasonable period for all those found to be homeless but not in priority need.
• Repair of the ‘Awua’ judgement, which prevented a local authority from discharging its duty to ‘unintentionally homeless households with a priority need’ by providing only temporary rather then permanent accommodation.
• An extension of the definition of ‘threatened with homelessness’ to two months from one month;
• New duties on registered social landlords to assist local authorities in carrying out their homelessness duties;
• A right to review of decisions relating to their case, for homeless households and New rights for hostel residents

The Homelessness etc. (Scotland) Act 2003

A briefing on the 2003 Act is available on the SCSH site here.

The Homelessness etc. (Scotland) Act 2003 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 fundamentally 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, update the law surrounding ‘intentionality’ and suspend the ‘local connection’ provision. The Act also places duties on private-sector landlords to inform local authorities if they are evicting a tenant. Finally, the Act also 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.

What is homelessness and priority need ?

Section 24 of the Housing (Scotland) Act 1987, amended by the Housing (Scotland) Act 2001, defines homelessness 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 occupy it, for example because of a threat of violence.
• A person is potentially homeless (i.e. threatened with homelessness) if it is likely that he/she will become homeless within 2 months.
• A person is intentionally homeless if he/she deliberately did or failed to do anything that led to the loss of accommodation that it was reasonable for him/her to continue to occupy.

The legislation also requires local authorities to make inquiries as to whether the household has a "priority need". The definition of priority need has been expanded, following the commencement of section 1 of the Homelessness etc. (Scotland) Act 2003. From 30 January 2004, households will be regarded as having a priority need if:

1. a member of the household is pregnant;
2. it contains dependent children;
3. a member of the household is vulnerable as a result of :
   · old age;
   · mental illness;
   · personality disorder;
   · learning disability;
   · physical disability;
   · having suffered a miscarriage or undergone an abortion;
   · having been discharged from a hospital, a prison or any part of the regular armed forces of the crown; or
   · other special reason
4. the household is homeless in an emergency (e.g. because of fire or flood)
5. a person is aged 16 or 17
6. a person is aged 18 to 20 who either
   · runs the risk of sexual, financial exploitation or involvement in the serious misuse of alcohol or drugs or any volatile substance, or;
   · was looked after by a local authority at school leaving age or later (formerly "in care").
7. a person, by reason of that person’s sexual orientation, race, colour or ethnic or national origins –
   · runs the risk of violence; or
   · is, or is likely to be, the victim of a course of conduct amounting to harrasment.
8. a person runs the risk of domestic abuse.

(Housing (Scotland) Act 1987, Section 25)

The question of ‘intentional’ homelessness is also open to wide interpretation. If a person is intentionally homeless, even if they are in one of the vulnerable categories the duty of the local authority is to offer advice and assistance and temporary accommodation, but not permanent accommodation. However, once section 4 of the Homelessness etc. (Scotland) Act 2003 is commenced, it will make radical changes to the how local authorities respond to intentionality.

The legal definition of homelessness is narrow. SCSH prefers a wider definition:

• Rooflessness (e.g. sleeping rough)
• Houselessness (e.g. living in bed and breakfast or a hostel)
• Insecure accommodation (e.g. not having a lease)
• Intolerable or sub-standard housing conditions (e.g. a caravan without basic amenities)

The Code of Guidance on Homelessness

The Code of Guidance on Homelessness provides local authorities with guidance on how to operate their homelessness functions. All local authorities have to ‘have regard to’ the Code in their policies and practice. Unfortunately the guidance is simply guidance and not mandatory. Its implementation is variable across Scotland. So whilst families with children and certain categories of vulnerability are relatively well addressed by the legislation, the other groups identified may face different policies in different parts of Scotland. This may be partially rectified by the Housing (Scotland) Act 2001 which established Communities Scotland, the organisation responsible for regulating local authorities’ homelessness functions, which will ensure that local authorities are carrying out their homelessness duties correctly.

The Code of Guidance on Homelessness has recently been revised. The most up to date version can be found here.