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CHAPTER 6 - PRIORITY NEED
6.1
Summary - this chapter defines the
different categories of priority need and gives guidance on
how a local authority could decide if an applicant were in
priority need.
6.2 In its final report the Homelessness Task Force
recommended that the rights possessed by those assessed as
being in priority need under the 1987 Act should be
extended to all those assessed as homeless and that the
priority need distinction should, therefore, be eliminated.
Powers to take forward this recommendation were taken in
the 2003 Act and a target date of 2012 for priority need
abolition was set. Interim measures are likely to be
introduced before then to widen the category of priority
need and further guidance will be issued. This chapter sets
out the current legislative position. Local authorities
should bear in mind that they should seek to meet the wider
housing and support needs of all applicants regardless of
their priority status.
Current position - categories of priority
need
6.3 The Housing (Scotland) Act 1987 (as amended) sets
out categories of homeless persons who must be considered
as having a priority need for housing. Below is a list of
these categories, and paragraph 193 provides further
guidance on each category:
- a pregnant woman or a person with whom a pregnant
woman resides or might reasonably be expected to
reside
- a person with whom dependent children reside or
might reasonably be expected to reside
- a person who is vulnerable as a result of-
old age;
mental illness;
personality disorder;
learning disability;
physical disability;
chronic ill health;
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
- a person who is homeless or threatened with
homelessness as a result of an emergency such as flood,
fire or any other disaster
- a person with whom a person referred to in section
25(1)(c) or (d) of the 1987 Act resides or might
reasonably be expected to reside
- a person aged 16 or 17
- a person aged 18 to 20 who by reason of the
circumstances in which the person is living, the person
runs the risk of sexual or financial exploitation or
involvement in the serious misuse of alcohol, any drug
(whether or not a controlled drug within the meaning of
the Misuse of Drugs Act 1971 (c.38)) or any volatile
substance
- a person aged 18 to 20 who, at the time when the
person ceased to be of school age (within the meaning
of section 31 of the Education (Scotland) Act 1980
(c.44)) or at any subsequent time, was looked after by
a local authority (within the meaning of section 17(6)
of the Children (Scotland) Act 1995 (c.36)) and the
person is no longer being so looked after
- a person who runs the risk of domestic abuse
(within the meaning of section 33(3) of the 1987
Act)
- A person who, by reason of that person's religion,
sexual orientation, race, colour or ethnic or national
origin runs the risk of violence, or is, or is likely
to be, the victim of a course of conduct amounting to
harassment.
6.4 The following provides some guidance on the
categories of priority need:
- a pregnant woman or a person with whom a
pregnant woman resides or might reasonably be
expected to reside
This applies regardless of the stage of pregnancy or the
woman's age.
- a person with whom dependent children
reside or might reasonably be expected to
reside
6.5 The 1987 Act does not define dependent children, but
local authorities should treat as dependent all children of
15 or less; and all others of 18 or less who are either
receiving or about to begin full-time education or training
or are for some other reason unable to support themselves.
Dependent children need not be the children of the
applicant (for example foster children). Where parents have
joint or shared custody, local authorities should consider
the periods for which a child is resident with each parent.
Formal legal custody arrangements should not be required
and local authorities should take full account of voluntary
arrangements that have been agreed. (see Chapter 5
paragraphs 5.8-5.10)
6.6 The Act does not require that the children should be
living with the applicant at the time of the applicant's
request for assistance - they may for instance be living
temporarily with other relatives because of the applicant's
homelessness, or the applicant may be seeking a residence
order and waiting for a legal decision, and such children
would usually 'reasonably be expected' to live with the
applicant. The starting assumption should be that it is
reasonable that an applicant's children should live with
the applicant; and the practice of splitting families
because of their homelessness is not acceptable, even for
short periods.
- a person who is vulnerable as a result of
-
old age;
mental illness;
personality disorder;
learning disability;
physical disability;
chronic ill health;
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
6.7 A person is considered vulnerable when they are less
able to fend for themselves so that they may suffer in a
situation where another homeless person would be able to
cope without suffering. The above categories detail
specific circumstances which may lead to vulnerability. The
meanings of the categories are not defined in the
legislation and local authorities should seek proper and
relevant advice in relation to an applicant's
vulnerability.
6.8 This might include seeking advice from, amongst
others, health, social work or housing professionals. Where
relevant advice conflicts the local authority may choose
which advice to follow while showing that it has properly
considered the position.
6.9 There is no set age at which vulnerability may occur
and local authorities should consider the applicant's
circumstances fully. It may be appropriate to seek
specialist advice in considering the above conditions which
are likely to have different impacts according to their
nature and the particular circumstances of the applicant.
Factors which might be relevant to consider include how
long ago the events occurred.
6.10 As the "vulnerability" categories are not defined
in legislation local authorities should avoid blanket
policies and instead focus on the individual applicant's
circumstances. These might include the community in which
they live and attitudes towards their circumstances, for
example to mental illness.
6.11 In particular the 1987 and 2003 Acts do not define
the category of 'other special reason' and it is not
possible to list all potential special reasons for
vulnerability. It is important to exercise sympathetic
discretion, taking into account the particular
circumstances of each person and asking for expert advice
if needed. There is no bar to local authorities assessing
other applicants as being vulnerable for 'special reason'
in the light of the legislation, case law and their
particular circumstances, and hence in priority need. Each
local authority will have to exercise common sense and
judgement in determining whether a particular applicant is
vulnerable.
6.12 Former asylum-seekers who have been granted refugee
status or humanitarian protection or other leave to remain
in the
UK may be eligible for homelessness
assistance (see chapter 13 for more details) and may be
homeless as a result of having to leave accommodation which
was provided for them (
i.e.NASS accommodation) when they were
pursuing their asylum claim. They may well have experienced
persecution in their country of origin or severe hardship
in their efforts to reach the
UK and may be vulnerable as a result. In
assessing applications from this client group, housing
authorities should give careful consideration to the
possibility that they may be vulnerable as a result of
another special reason.
- a person who is homeless or threatened with
homelessness as a result of an emergency such as
flood, fire or any other disaster.
6.13 In larger-scale emergencies, the obligations of the
local authority under the Act may be discharged by action
under section 84 of the Local Government (Scotland) Act
1973 - for instance, by the provision of special forms of
temporary accommodation. Paragraph 9.20 in chapter 9 below
gives guidance on how the Homeless Persons (Unsuitable
Accommdation) (Scotland) Order 2004 makes an exception to
allow the use of "unsuitable" accommodation in the case of
this sort of emergency.
- a person with whom a person referred to in
section 25(1)(c) or (d) of the 1987 Act resides or
might reasonably be expected to reside, that
is those persons who are vulnerable or who are homeless
or threatened with homelessness as a result of an
emergency (see above)
- a person aged 16 or 17.
- a person aged 18 to 20 who by reason of the
circumstances in which the person is living, the person
runs the risk of sexual or financial exploitation or
involvement in the serious misuse of alcohol, any drug
(whether or not a controlled drug within the meaning of
the Misuse of Drugs Act 1971 (c.38)) or any volatile
substance. Risk may not be immediately
apparent and each case should be considered on its
merits and the risk assessed according to the
individual's circumstances.
- a person aged 18 to 20 who, at the time
when the person ceased to be of school age (within
the meaning of section 31 of the Education
(Scotland) Act 1980 (c.44)) or at any subsequent
time, was looked after by a local authority (within
the meaning of section 17(6) of the Children
(Scotland) Act 1995 (c.36)) and the person is no
longer being so looked after.
6.14 It should not be assumed that simply because an
applicant is over a specified age limit in the two
categories above that he or she is not in priority need;
vulnerability for other special reason may be apparent in
other young people.
- a person who runs the risk of domestic abuse
(within the meaning of section 33(3) of the 1987
Act). This definition follows that set out in
the Protection from Abuse (Scotland) Act 2001 which
sets out that "abuse" includes violence, harassment,
threatening conduct, and any other conduct giving rise,
or likely to give rise, to physical or mental injury,
fear, alarm or distress.
- a person who, by reason of that person's
religion, sexual orientation, race, colour or
ethnic or national origin runs the risk of
violence, or is, or is likely to be, the victim of
a course of conduct amounting to
harassment.
6.15 References to conduct, course of conduct and
harassment are to be construed in accordance with section 8
of the Protection from Harassment Act 1997. Section 8 of
that Act sets out that "conduct" includes speech;
"harassment" of a person includes causing the person alarm
or distress; and a course of conduct must involve conduct
on at least two occasions.
Future changes
6.16 The 2003 Act enables the Scottish Ministers to
abolish the priority need test so that the accommodation
and services currently available to those in priority need
are available to all those assessed as homeless. The
legislation requires Ministers to publish a statement, by
31st December 2005, setting out an action plan for the
abolition of the priority need test. Local authorities'
homelessness strategies should set out the actions required
to achieve the target of abolishing priority need in 2012.
Further information on the abolition of priority need is
available from Scottish Executive Homelessness Team.
Further guidance will be issued when changes are made to
the priority need test.
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