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CHAPTER 5- INQUIRIES INTO HOMELESSNESS
5.1
Summary - this chapter gives guidance on
the inquiries a local authority should make into
homelessness. This chapter includes guidance on issues of
definition such as what is meant by "homelessness" and the
broad definition of "family" under the legislation, what is
meant by normally or reasonably residing with an applicant,
and when it is not reasonable for an applicant to continue
to occupy a house.
5.2 Local authorities should bear in mind throughout
their inquiries that they should take action where
appropriate to prevent homelessness occurring and to meet
the broader needs of the applicant.
5.3 Someone is homeless under section 24 of the 1987 Act
if he or she has no accommodation in the United Kingdom or
elsewhere which he or she (together with any person who
normally resides with the applicant as a family member, or
in circumstances in which the local authority considers it
reasonable for that person to reside with the applicant) is
entitled or permitted to occupy in one of the following
ways:
- is entitled to occupy by virtue of an interest in
it (for example as an owner or tenant) or by virtue of
a court order;
- has a right or permission, or an implied right or
permission, to occupy (for example as a lodger or an
employee with a service occupancy); or
- currently occupies as a residence by virtue of some
protection given by law. The person may have a positive
right to occupy the accommodation, or may be protected
only by a restriction on another person's right to
repossess the accommodation.
5.4 When investigating whether accommodation is
available outside the
UK for the applicant, local authorities
should be sensitive in the manner in which they approach
the applicant. Staff should be aware of potential cultural
sensitivities or language barriers during such
investigations. Given the difficulty in ascertaining
whether accommodation outside the
UK is available, if evidence is not
readily available, it should be assumed that the applicant
does not have access to accommodation elsewhere. If the
authority considers that there is accommodation available
for the applicant then that accommodation is subject to the
same tests as accommodation in the
UK,
i.e. it must be reasonable to occupy as set
out in paragraphs 5.11 and following.
Family membership
5.5 Local authorities should be aware of the complex
family structures that exist for example stepfamilies,
foster relationships, and other established
relationships.
5.6 Under section 83 of the 1987 Act, as amended,
someone is a member of another person's family if:
- they are married or living together as husband and
wife or are in a relationship which has the
characteristics of the relationship between husband and
wife except that the persons are of the same sex;
- one is the child of the other (whether or not the
child's parents are married);
- one is the stepchild of the other;
- one is the grandchild of the other;
- one is the brother or sister of the other; and
- one is the nephew or niece of the other.
5.7 Relationships by marriage are to be treated as if
they were relationships by blood - for example, a
parent-in-law must be treated as a parent. Similarly, for
example, a half sister must be treated as a sister. Someone
brought up as if they were a child of the family should be
considered part of the family for example foster or step
children or children of a partner.
Residing with applicant
5.8 People other than family members who might be
regarded as reasonably residing with the applicant might
include dependent foster children living with their foster
carers; formal or informal carers including people residing
with the family to help care for dependent children, or
other companions. Households which are split up for no
other reason than that they have nowhere to live together
should be regarded as one household.
5.9 Following a relationship breakdown particular care
should be taken in assessing with whom a child should be
treated as living. In reaching its decision, a local
authority should take account of any residence and contact
orders (if any) made by the courts. However, it should be
noted that the "no order" principle in the Children
(Scotland) Act 1995 states that children should not be
subjected to legal proceedings when voluntary living
arrangements suffice. An authority should not insist,
therefore, that an applicant seeks a formal court order as
evidence of the arrangements which may have been agreed
informally.
5.10 Orders or other voluntary arrangements may provide
for alternating residence with each parent, in which case
the period spent with each parent or guardian is relevant.
Sometimes children who would normally reside with an
applicant are being looked after by a local authority for
reasons, for example abuse by a parent, which would make it
unreasonable for them to stay with the applicant.
When is it not reasonable for an applicant to
continue to occupy a house?
5.11 Sections 24(2A) and (2B) of the 1987 Act provide
that a person is to be treated as homeless even if he or
she has accommodation, if it would not be reasonable for
the person to continue to occupy it. What is "reasonable"
is a matter for judgement and will depend in some cases on
the personal circumstances of the applicant - for example
what might be reasonable for adults may not be for a
household containing children, and mainstream housing may
not be suitable for someone with physical impairments. This
last point may apply even more to caravans and mobile
homes.
5.12 Under section 24(2B) a local authority may have
regard to the general circumstances prevailing in relation
to housing in the local authority's area, in determining
whether it is reasonable for a person to continue to occupy
accommodation. Different tests of "reasonableness" should
not be applied to different categories of applicant,
e.g. applications from private tenants should
be dealt with on the same basis as those from tenants of
local authorities or
RSLs.
5.13 Examples of how the 'unreasonable to occupy' test
might be applied are given below.
- The
accommodation is below the tolerable
standard (
BTS), as defined in section 86 of
the Act. However, the fact that accommodation fails to
meet the tolerable standard does not necessarily mean
that a person cannot reasonably occupy it. Whether it
is reasonable for a person to occupy accommodation
below the tolerable standard will depend on the reason,
or reasons, for failure to meet the tolerable standard
and subsequent actions of the local authority (
i.e. the local authority has a duty to
close, demolish or improve the property under section
85 of the Act). It will further depend on the severity
and expected duration of the problem, or the degree to
which the particular individual or family concerned
suffers serious inconvenience or a threat to health.
Information about the severity of the problem may be
available from environmental health officers.
- The applicant is living in
bed and breakfast accommodation, which
is not overcrowded within the meaning of Part VII of
the 1987 Act. Bed and breakfast accommodation should be
used only as a last resort in the absence of other
options, particularly for households with vulnerable
people. In fulfilment of their duties under section 29
of the 1987 Act, local authorities cannot place
households with children and pregnant women into
unsuitable accommodation unless exceptional
circumstances apply, where both unsuitable
accommodation and exceptional circumstances are defined
in the relevant legislation (the Homeless Persons
(Unsuitable Accommodation) (Scotland) Order 2004). See
paragraphs 9.7-9.28 in chapter 9 for more
information.
- The applicant is living in a
hostel or other accommodation such as
a women's refuge, which is not intended to provide
long-stay accommodation. Often there will be a fixed
limit to the time a person can stay. The same general
point applies to caravans and mobile homes without a
permanent or long-term site.
- There is
external violence, including racial or other
harassment. Local authorities should respond
sympathetically to applications from people who are in
fear of external violence. The absence of previous
violence does not prove that these fears are
unjustified. (see Chapter 4, Handling
Applications)
Even if an applicant has obtained an order under the
Matrimonial Homes (Family Protection) (Scotland) Act 1981
guaranteeing his or her occupancy rights, or an interdict
against molestation by a former partner, this may not
always be sufficient to make it reasonable to expect him or
her to continue to occupy the house.
- Continued occupation of the accommodation poses a
substantial risk to a person's health,
which could include their mental health.
- The accommodation is impracticable for a particular
applicant because of his or her
physical infirmities or
disabilities.
5.14 It must be emphasised that these are examples. It
is not possible to give a comprehensive list, and
sympathetic judgement must always be exercised.
Who else is homeless under the Act?
5.15 Section 24(3) of the 1987 Act defines as homeless
someone who has accommodation but cannot use it for one of
the reasons listed below.
- He or she cannot secure entry to it (section
24(3)(a)). This includes those who have a
legal entitlement to accommodation to which they are
unable to secure entry - such as unlawfully evicted
tenants or occupiers who for some practical reason
cannot immediately be restored to occupation of their
homes.
- An attempt to continue living in the
accommodation would be likely to be met with
violence or threats of violence likely to be
carried out from someone else living in it, or from
someone who previously lived with the applicant,
whether in their present accommodation or somewhere
else (sections 24(3)(b) and (bb)).
- He or she has a mobile home, caravan, houseboat
or other moveable structure but has no place where he
or she is entitled or permitted both to put it or moor
it and to live in it, (section 24(3)(c)). For
example; temporary mooring for holiday use would not be
sufficient. Naturally, a person would be homeless if
evicted from the mobile accommodation itself.
This provision has particular relevance to
gypsies/travellers, who should be considered for housing
under the homelessness legislation, if they wish it, on the
same basis as anyone else. However, while some
gypsies/travellers want to settle in houses, conventional
housing will not meet the needs of those who want to live
in a caravan in order to maintain their traditional way of
life. Gypsies/travellers who move into a house for lack of
any alternative may find it difficult to settle, and for
them the most satisfactory solution may be a place on a
local authority site for gypsies/travellers. Where a pitch
is not available on a local authority site, the local
authority may wish to consult private interests to see if a
site can be found.
- The accommodation is both overcrowded within
the meaning of section 135 of the Act and may endanger
health, (section 24(3)(d)). Both overcrowding
and a danger to health must be present. Overcrowding
standards are set out in sections 136 and 137 of the
Act: if either of the standards (the room standard or
the space standard, respectively) is contravened, there
is overcrowding.
Homelessness officers should be familiar with the
overcrowding legislation and able to apply it. A strict
application of these standards may require an inspection of
the accommodation, and perhaps measurement of the size of
the rooms. In practice, and certainly always if there are
reasons to suppose the application is urgent, the local
authority should consider taking any interim action that is
necessary, such as the provision of temporary
accommodation. There are no legislative standards for
danger to health, and the local authority should consider
such factors as the effect of dampness or condensation on
respiratory disease suffered by occupants. It should also
include the possibility of danger to mental health. Even if
there is no statutory overcrowding, local authorities must
consider whether it Is unreasonable to occupy the
accommodation.
- It is not permanent accommodation, in
circumstances where, immediately before the
commencement of his occupation of it, a local
authority had a duty under section 31(2) in
relation to him.
This ensures that people who are owed a duty under
section 31(2) are to be treated as being homeless if they
are provided with accommodation which is not permanent
accommodation. This means that a local authority's duty
under section 31(2) continues until permanent accommodation
is secured. Permanent accommodation is defined in broad
terms to acknowledge a range of situations which could
reasonably be considered to be permanent accommodation and,
therefore, end the local authority's duty under section
31(2) See paragraphs 9.37-9.38 in chapter 9 for more detail
on the definition of permanent accommodation.
Is the applicant threatened with
homelessness?
5.16 A person is defined in the Act as being threatened
with homelessness if he or she is likely to become homeless
(as defined above) within two months. Local authorities
should bear in mind that the earlier that action is taken,
the greater the likelihood that measures to avert
homelessness will be effective. Local authorities should
therefore not wait until homelessness has actually occurred
before providing assistance.
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