« Previous | Contents | Next »
Listen
Code of Guidance on Homelessness
CHAPTER 9 - ACCOMMODATION
246. This chapter sets out a local authority's accommodation duties towards applicants who are homeless or threatened with homelessness and guidance on how the duties are fulfilled. When securing accommodation for applicants the priority for local authorities must be to minimise the risk of homelessness recurring. This is not only in the interests of the applicant, who should be able to establish, or re-establish, a settled way of life, but also in the interests of local authorities, as repeated applications give rise to additional administrative costs.
247. Accordingly, when making accommodation available, local authorities should always seek to secure long-term solutions to homelessness. This should include consideration of the wide range of factors which may impact on resettlement - in particular the household's requirements in terms of proximity to family and friends and the accessibility of healthcare, employment, education and training and support providers.
Local Authority Accommodation Duties
248. Local authorities have a range of accommodation duties under the homelessness legislation and these are described below. All references are to the 1987 Act unless otherwise stated.
Interim Duty To Accommodate (section 29 of the 1987 Act)
249. If an authority has reason to believe an applicant is homeless it has an interim duty to secure accommodation until it has reached a final decision on their application. This duty continues during the process of review if one is requested.
250. Where the authority's decision is that it has a duty to provide accommodation under section 31 the interim duty continues until the section 31 duty is discharged. Scottish Ministers have the power to specify by statutory instrument accommodation which cannot be used to fulfil this interim duty.
251. Where a local authority refers an application to another local authority on the basis of local connection (see chapter 8), the referring authority is obliged, under section 34, to secure that accommodation is available for the applicant's occupation until the outcome of the referral is decided. Local authorities should bear in mind the possibility that transitional arrangements may be required when this duty expires (e.g. where the conditions for referral are satisfied but the notified authority has not yet provided accommodation or where the conditions are not accepted but the notifying authority does not have permanent accommodation available immediately).
Temporary Accommodation with advice and assistance (section 31(3))
252. Where the applicant is assessed as not having a priority need for accommodation or as being intentionally homeless, the duty is to secure that accommodation is made available for such a period as will give the applicant a reasonable opportunity to find alternative accommodation for him or herself.
253. These applicants must also be given advice and assistance in their attempts to find alternative accommodation, as set out in the Homeless Persons Advice and Assistance (Scotland) Regulations 2002 (see Chapter 10).
Discharge of temporary accommodation duty
254. A 'reasonable opportunity', should be assessed in terms of the circumstances of the applicant, including consideration of factors (such as disability, addiction, mental health problems, chaotic lifestyle) which may adversely affect their ability to secure accommodation; and also local housing conditions including how readily alternative accommodation is available in the area.
255. In any situation where an authority has provided advice and assistance which takes account of the availability of alternative accommodation, and takes account of the circumstances of the applicant, but no reasonable options have been identified, the applicant cannot then be deemed to have had a 'reasonable opportunity' of securing accommodation. The local authority's duty to provide accommodation therefore continues in this instance.
256. Where an applicant has a reasonable opportunity to secure accommodation and fails to take this opportunity the local authority's duty to provide accommodation ends. If the applicant then re-applies and is assessed again as homeless but not in priority need, or in priority need but intentionally homeless, the authority should assess whether the 'reasonable opportunity' afforded to the person is still valid and relevant to the applicant's circumstances.
257. In cases where the applicant's circumstances have changed, or where the advice and assistance is no longer relevant or current, then the authority will be obliged to accommodate them for a further period which is considered will give a reasonable opportunity of securing accommodation. Conversely, if the applicant's circumstances have not changed, and the advice and assistance previously offered remains the most up-to-date and relevant possible, then local authority may be deemed to have discharged its duty.
258. A house let expressly on a temporary basis, for a term of less than 6 months, to fulfil a local authority's duties under Part II of the 1987 Act will not constitute a Scottish secure or an assured tenancy.
Permanent accommodation (section 31(2) of the 1987 Act)
259. The 2001 Act amended the 1987 Act to clarify that where the applicant is assessed as having a priority need for accommodation and unintentionally homeless the authority has a duty to secure the provision of permanent accommodation. This removes the position established in the case of R v London Borough of Brent ex parte Awua (the "Awua judgement") where the House of Lords had decided the accommodation did not need to be permanent or settled.
260. Permanent accommodation is defined by section 31(5)(a) and (b) as accommodation secured by a Scottish Secure Tenancy or, in the private sector, by an assured tenancy which is not a short assured tenancy. Section 31(5)(c) allows for the provision of a short Scottish Secure Tenancy where a member of the applicant's household is subject to an ASBO or where an order for repossession has been made against the prospective tenant(s), within the past 3 years, on grounds of anti-social behaviour or illegal/immoral activity.
Interim Accommodation
261. Local authorities may provide accommodation other than permanent accommodation in the circumstances prescribed by The Homeless Person Interim Accommodation (Scotland) Regulations 2002. These circumstances are:
a) a housing support services assessment for an applicant has concluded that the applicant or any other person residing with that applicant requires housing support services which cannot reasonably be provided within permanent accommodation; and
(b) as a result of that housing support services assessment, the local authority is providing an applicant or any person residing with that applicant with interim accommodation together with housing support services in connection with that interim accommodation which include-
(i) all services required in terms of the housing support services assessment;
(ii) access to independent advocacy and information services in connection with the services;
(iii) a timetable, agreed with the applicant, for the provision of the interim accommodation and housing support services;
(iv) an end or review date for the provision of services and interim accommodation, which date shall not be later than a date six months from the date on which the interim accommodation was first provided;
(v) a written record of the housing support services assessment, the services that are to be provided and the timetable; and
(vi) a mechanism to monitor the use of interim accommodation and the long term outcomes for each applicant.
262. Local authorities should ensure that the individual circumstances of the applicant are examined on a case by case basis and that the regulations are not invoked automatically for certain categories of applicants (e.g. young people or people with learning difficulties).
Threatened with homelessness (section 32(2) of the 1987 Act)
263. Where an applicant is still in accommodation but is assessed as being unintentionally threatened with homelessness and in priority need, a local authority has a duty under to ensure that accommodation does not cease to be available for occupation.
264. If it is not possible to prevent the loss of the accommodation, the authority must ensure that other housing becomes available. Unless there is a change of circumstances the household will still be in priority need and unintentionally homeless and therefore this accommodation should be provided on a permanent basis.
Provision of accommodation
Temporary and interim accommodation
265. Homeless people should not be placed in temporary accommodation unnecessarily, and their time there should be as short as possible. Care should also be taken to avoid moves between temporary placements particularly for households with children. Moves are disruptive, and can exacerbate existing social or health problems including mental illness, hinder continuity of education and employment, can lead to repeat homelessness and in the worst cases can cause families to split up. Temporary accommodation will also tend to be more expensive than permanent accommodation, particularly if there are moves from one temporary accommodation to another.
266. However, it is recognised that homeless people may sometimes need to be accommodated in temporary accommodation until permanent accommodation becomes available; or in interim accommodation for the purposes of providing support which will enable them to sustain a tenancy in the long term.
267. In all cases the ultimate aim should be to move residents of temporary or interim accommodation on to permanent accommodation, as quickly as possible whilst also ensuring that this is only done at a time when the household is able to sustain permanent accommodation. The objective should be to enable people to have a home of their own which meets their needs, and enables them to live independently. Care should be taken to provide for the particular needs of families, young people and groups who currently find it difficult to access or sustain any form of accommodation - such as people with problematic alcohol or drug use, people with mental health problems and people with challenging behaviour.
Bed and breakfast
268. It is essential that local authorities explore all alternatives to bed and breakfast hotels or other similar establishments, and use them only as a last resort. They are expensive, and can never be regarded as a permanent home for applicants. If local authorities do arrange bed and breakfast in guest houses or hotels, they should ensure that it is for as short a period as possible. The arrangements must allow homeless people to use the rooms during the day and to should include access to cooking facilities.
269. Local authorities should seek to eliminate use of bed and breakfast accommodation for homeless families with children; regulatory powers exist, introduced by the 2003 Act, which will be used to prevent such usage except in clearly defined limited circumstances. Consultation on use of the power was carried out between January and April 2004 and the way forward is under consideration.
Hostels
270. Local authority hostels, or hostels run by voluntary bodies, can be a useful form of short-term accommodation, as long as these hostels are reasonably small-scale and are an appropriate environment in which to deliver support if required. They may therefore be appropriate for the needs of some individuals. Different models of hostel accommodation may be suitable for different applicants: for example, small high-support units may suit some young people or communal accommodation can enable households at crisis point to have some relief for a short period from coping alone; and the company of other people who have gone through similar problems can be helpful.
271. However, local authorities should be clear which people are suitable for each hostel (outside bodies will have admission criteria for their own hostels), and seek to place people according to such factors as their support needs, if any, and the likely length of stay. Hostels required to register with the Care Commission under the Regulation of Care (Scotland) Act 2001 (the Act) will be regulated by the Commission against the requirements of the Act, its associated regulations and the relevant National Care Standards.
272. Move on arrangements should be clearly planned from the time the homeless person first enters the hostel - move on will vary according to the individual's needs, for example from direct access to medium term supported accommodation, in addition to move on permanent accommodation. The management of hostels should be resident centred, and staff trained in the necessary skills according to the needs of the residents. In some cases, support services will be supplied by social work, health, training or other agencies.
Lodgings
273. For some homeless applicants, particularly single people without support needs, lodgings in privately owned accommodation may offer suitable housing. Local authorities should seek to establish and maintain links with owner occupiers and other potential landlords who are willing to offer lodgings to homeless people. Authorities should ensure that the accommodation offered is of an acceptable standard.
Private sector leasing
274. The leasing of private sector accommodation can add to the supply of good quality temporary accommodation, including in sparsely populated areas where normal lets may occur infrequently. In particular, it can be used in rural areas to continue 'winter only' lets over the summer where the occupants would otherwise become homeless. However, such leases may be expensive, though usually cheaper than bed and breakfast. There may be advantages to the local authority undertaking the management of the property itself rather than leaving this to the landlord. This is particularly useful where several successive placements are expected during the course of a lease, or support services have to be provided.
Mobile homes
275. Although mobile homes or caravans may sometimes provide temporary accommodation for single people or childless couples; or in remoter areas to allow people to remain close to families, friends or employment, they are generally not satisfactory, even as temporary housing. Any mobile homes used must be built to modern day standards with high levels of insulation, security and stability, and sites must conform to "Scottish Executive Model Standards for licensed residential caravan sites, holiday caravan sites and touring caravan sites" [SDD Circular 17/1990].
Local Authority stock
276. Where a local authority is using its own stock to provide temporary or interim accommodation, it should ensure that this allows a balance to be struck with duties to provide permanent accommodation to other applicants. A regular turnover of council properties used for temporary accommodation should be considered, to avoid particular dwellings being identified and possibly stigmatised as 'homeless accommodation', while allowing a cost-effective life span for individual properties. Local authorities may also wish to consider engaging the local communities in which these properties are located in order to counter any negative stereotyping of homeless people.
Permanent accommodation
277. Section 32(5) states that a local authority cannot fulfil its accommodation duties to a homeless household through the provision of accommodation which is overcrowded within the meaning of section 135, may endanger the health of the occupants, does not meet any special needs of the household or is not reasonable for the applicant to occupy.
278. Under section 32(8) of the 1987 Act any accommodation provided must be suitable for occupation by any children in the household so far as is consistent with their best interests.
279. Local authorities' duty to secure accommodation for unintentionally homeless people in priority need would be fulfilled by a single offer of housing, even if this is refused by the applicant, provided that the offer was a reasonable one. Homeless people should however be treated on the same basis as other housing applicants to local authorities in relation to the number of offers of accommodation they receive, where the local allocation policy is offers based.
Determining a reasonable offer
280. In general local authorities should take into account the importance of offering homeless people a genuine choice of accommodation, as this is more likely to ensure sustainable resettlement. In meeting urgent homelessness cases, local authorities may have to use what houses may be immediately available, including non-council housing. However, in considering what is a reasonable offer, local authorities should take into account the particular circumstances and needs of the applicant and their household. (see also chapter 5).
281. Local authorities should also take into account the sustainability of the accommodation for that particular applicant. Examples of poor practice might include placing people in hard to let housing which may merely exacerbate the problems which led to homelessness in the first place, leading to homelessness recurring; or placing families with social or other problems in the same area, which can cause problems for both those from the area itself and for housing management.
Reasonable preference
282. Local authorities and Registered Social Landlords have a duty under section 20 of the 1987 Act to give reasonable preference in the selection of their tenants to people assessed as being homeless.
283. It should be noted that this reasonable preference extends to all those who are assessed as homeless, regardless of the outcome of further assessment into priority need or intentionality. Homeless people should always be included in local authorities' mainstream allocation system as from the date of their application, rather than at a later date. This duty to give reasonable preference also extends to those occupying houses which are overcrowded, below the tolerable standard, or provide unsatisfactory housing conditions, and to large families.
284. What degree of preference is 'reasonable' is a matter of judgement but, at the very least, homeless people should not be given lesser preference than the other specified groups. These reasonable preference requirements do not prevent priority being given to other groups of applicants besides those listed in section 20, and local authorities still have to consider applications from homeless or other people on their individual merits.
285. Scottish Executive guidance on the "Housing (Scotland) Act 2001 - Housing Lists and Allocations" was issued in February 2002
http://www.scotland.gov.uk/library3/housing/hlaa-00.asp
Choice based lettings
286. There is a growing interest in choice-based approaches to lettings. Any scheme operated must meet statutory requirements particularly in terms of assessing and prioritising applicants who meet the reasonable preference criteria. A choice-based system must be consistent with statutory duties under the homelessness legislation, including discharge of any duty owed.
Accommodation held by RSLs/voluntary organisations/private landlords
287. Under section 35, the local authority has freedom to fulfil duties to provide accommodation for homeless people either by making use of council housing or by obtaining accommodation from other providers in the social rented or private sectors.
288. Where a local authority has a duty under section 31(2) to secure the provision of accommodation for an applicant in priority need, a Registered Social Landlord in its area must, within a reasonable period, comply with an authority's request to provide this accommodation unless it has a good reason for not doing so (section 5 of the Housing (Scotland) Act 2001).
289. The Scottish Executive has issued guidance under section 5(7) of the Housing (Scotland) Act 2001 on the length of the reasonable period and on what constitutes a good reason for non-compliance. This sets out that where a request is made, an RSL should comply by providing accommodation within 6 weeks unless it has a good reason for not doing so. The guidance states that where an RSL is unable to make appropriate accommodation available within 6 weeks this shall constitute a good reason for non-compliance. The RSL shall also have a good reason for non-compliance if the only accommodation it has available is of a specialist nature and this is not appropriate for the applicant.
Arbitration
290. Section 6 of the Housing (Scotland) Act 2001 allows Ministers to set a period within which the local authority and RSL should reach agreement as to whether the reason is good before arbitration is triggered. The time period is set, by the Housing (Scotland) Act 2001 (Appointment of Arbiter) Order 2002, as 5 working days.
291. Communities Scotland has issued a Guidance Note on Homelessness Arbitration (CSGN2002/12) (available on the Communities Scotland website) which provides information on the procedure to be adopted for appointing an arbiter, the remuneration and other expenses which may be paid to an arbiter, payment of other expenses in respect of arbitration, the procedure to be followed at arbitration and the maximum length of time of the arbitration procedure.
292. If the parties cannot agree on an arbiter, the Regulation and Inspection Division of Communities Scotland must, on the request of the local authority, appoint an arbiter - information on the procedures to be followed are contained in Communities Scotland's Information Note on Appointments by Communities Scotland (on behalf of Scottish Ministers) of Arbiters under the Housing (Scotland) Act 2001 Part 1 section 6(3) issued in September 2002.
293. Local authorities should enter into constructive and supportive relationships with RSLs in their area to ensure that the arbitration process is only invoked as a measure of last resort. Section 5 of the 2001 Act requires that a RSL must comply with any reasonable request for information about its stock made by a local authority for the purposes of coming to a decision about rehousing a homeless person. It also requires a local authority to have regard to the wider availability of accommodation in its area when requesting that an RSL provide accommodation.
Protocols
294. Local authorities should take into account the view of the applicant and should also be prepared to take a flexible approach to withdrawing requests where necessary, in the light of new information. An example might be where the authority is made aware that the applicant perpetrated an act of domestic abuse against a person residing in the area.
295. Local authorities and RSLs should agree protocols to underpin the legislative requirements and to provide a framework for the day to day administration of requests to provide accommodation. These protocols should govern liaison arrangements, exchange of stock and tenancy information, the referral process, arbitration and the tracking and monitoring of referrals. A model protocol has been published by CoSLA and SFHA which can be tailored to reflect agreements reached following discussions at a local level - nothing contained in local protocols should conflict with national legislation or guidance, which must always take precedence.
296. RSLs will also be an important source of temporary accommodation for homeless people who are not in priority need or are intentionally homeless. Local authorities should seek to negotiate referral arrangements for temporary accommodation for homeless people with associations in their areas, where these do not already exist.
Other sources of accommodation
297. Local authorities should ensure that empty houses within their stock are used wherever practicable to help to relieve homelessness in their areas, either by housing homeless households in them directly, or by relieving pressure elsewhere to create room for homeless people. Local authorities should not impose unreasonable restrictions on subletting or other forms of multiple occupancy in their own stock (or indeed in the private rented sector). Subject to the available resources, Cash Incentive Schemes can help to release existing council housing for homeless people and other applicants. Transfers within a council's stock can make available suitable housing for homeless people, while also meeting the needs of other tenants.
298. Voluntary bodies may offer another source of accommodation, especially those which specialise in housing people with special needs. Local authorities have powers under section 39(2) to assist voluntary bodies to tackle homelessness, including making available staff, assistance, premises, furniture or other goods.
299. Accommodation in the private rented sector will be an option for some applicants. The local authority should build up contacts with reputable private landlords. Many private landlords can offer accommodation quickly, and sometimes outside working hours, or on public holidays. The local authority may be able to arrange contracts with private landlords to provide such a service; and can, if necessary, use its powers under sections 24-26 of the Local Government Act 1988, with the Secretary of State's consent, to give assistance to private landlords in providing it, for example by paying for rent deposits or rent in advance. However, any arrangements made with private landlords should be linked to minimum standards both in terms of the physical condition of the property and the tenancy agreements offered to tenants. Many private landlords will only provide Short Assured Tenancies; in such circumstances the local authority will not have fulfilled its duty to applicants to whom they owe a duty of permanent accommodation.
300. All local authorities should provide access to a rent deposit or guarantee scheme in order to allow homeless people, and others in housing need, to access private sector rented housing more easily. See paragraph 90 in Chapter 2 for further information.
301. For some people house purchase may be a possibility, at least after their immediate problems have been resolved. A mortgage or loan can help to establish a family permanently in the private sector. Local authorities may wish to offer advice to homeless families on purchasing a house, when their housing and financial situation has stabilised. Local authorities will find it useful to develop close links with the local property market. Information on sources of advice on all options for financing house purchase should be made freely available to homeless people, especially those financial packages which may be attractive to people on lower incomes such as shared ownership. Advice and information on shared ownership is available from Communities Scotland and the Scottish Federation of Housing Associations.
Mortgages
302. If a house owner is threatened with homelessness because the mortgage lender is taking legal action to repossess the house, help may be available under the Mortgage to Rent scheme. To be eligible under the scheme the owner must have sought financial advice and be unable to 'trade down' to a cheaper house in the locality. There must also be a good reason why the household should remain in the local area. An owner who satisfies these and other conditions of the scheme can apply for a social landlord to buy the house, with the owner becoming the tenant. The purchase would be subsidised from Scottish Executive funds to allow any necessary repairs to be carried out and to allow the landlord to keep the rent at an affordable level. The scheme is administered by the Mortgage to Rent scheme team in Communities Scotland, who can provide further information. The team can be contacted on 0131 479 5188 or by e-mail at mortgagetorent@communitiesscotland.gov.uk
303. The Mortgage Rights (Scotland) Act 2001 came into force on 3 December 2001. Its purpose is to help households who find themselves in mortgage difficulties. The Act provides, among other things, new powers to allow the courts to consider the debtor's circumstances when the lender has applied for a repossession order. It enables the court to decide whether an order should be made delaying the repossession to give the debtor time to find alternative accommodation or, where possible, to get their mortgage back on track. An explanatory booklet on the Act is available from the Scottish Executive
Out-of-area placement
304. As a general rule a local authority should always rehouse a homeless family within its own area, particularly where temporary accommodation is being provided. However in rare cases the local authority may need to consider placing homeless people in another local authority's area, although this should only be done only with the household's consent. The local authority should retain responsibility for such outplacements.
305. Outplacements may be appropriate in cases of, for example, domestic abuse or external violence, or in the case of an ex-prisoner who would face local hostility if returned to his home area. In some cases such an outplacement may be nearer to the applicant's home area than a placement elsewhere in the local authority's area or provide suitable accommodation or access to healthcare which is not currently available in the placing local authority's area.
306. When considering an out of area placement, the local authority should consider the costs to the household, such as increased travelling costs or in some cases disruption of education and employment; and to itself of for example maintaining contact with the household and offering any support required;. It should also notify the local authority in whose area the household is placed (though that local authority cannot block the placement).
307. In considering an out of area placement for persons made homeless by domestic abuse or external violence, local authorities should give first importance to the expressed fears and wishes of those concerned. Local authorities should adopt the general rule that the new location should remove them from the range of the perpetrators of the violence. The application of this rule should take account of the particular circumstances, for example likely travel routes for the person who has suffered the abuse or violence and for the perpetrator.
Charges
308. An applicant can be asked to pay a reasonable charge for any accommodation provided directly by the local authority; or a reasonable amount for accommodation supplied by another housing provider but paid for by the local authority (section 35(2)). In deciding what is reasonable, the local authority should take account of what the applicant can pay in the longer term.
Special circumstances
309. Local authorities should make specific provision for the accommodation and support of homeless people with disabilities and respond quickly to requests for adaptations to housing stock which will prevent the occupier from becoming homeless. People with disabilities can be statutorily homeless if they are unable to occupy their present accommodation without excessive hardship or risk to personal safety (see Chapter 5).
310. Local authorities should also be sensitive to the needs of people who have become homeless as a result of domestic abuse. Local authorities should ensure that safe emergency supported accommodation is available for those who have experienced domestic abuse, taking into account the diverse needs of disabled people, people from black and minority ethnic groups and those with addiction problems. Women's Aid refuges are a useful source of temporary accommodation for women, children and young people who have experienced domestic abuse, and local authorities may find it cost effective to assist voluntary bodies to provide such specialist provision. Beyond securing the provision of emergency accommodation the local authority should also ensure the availability of suitable long-term accommodation and support, taking account of the views of the applicant and the paramount importance of minimising the risk of further incidents of abuse and/or homelessness. (See paragraph 307 above on the use of outplacements in cases of domestic abuse.)
311. If social work department considers that a person needs a greater degree of care and support than is available in any form of housing, it may offer that person a place in accommodation provided by them under section 59(2)(a) of the Social Work (Scotland) Act 1968, or for young people under the Children (Scotland) Act 1995, in response to the local authority's duty under the homelessness legislation.
Maintaining contact with rehoused homeless people
312. When homeless people have been rehoused either permanently or temporarily the local authority should maintain contact with them, particularly in the early weeks, to enable them to settle and to ensure early action is taken to avoid their becoming homeless again. This is particularly important for people who are not rehoused in local authority stock, and will be essential where the local authority is organising support for them. The co-operation of the social work department, local Health Board, appropriate voluntary organisations and other local agencies should be sought as required.
313. These arrangements will of course also be useful for many people who are not rehoused under the homelessness legislation but are otherwise vulnerable - e.g. young people moving into their first tenancy or people who have recently left institutional surroundings (hospital, prison, local authority care or the armed forces.)
« Previous | Contents | Next »