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CHAPTER 7 - INQUIRIES INTO
INTENTIONALITY
7.1
Summary - this chapter sets out guidance
on how a local authority should inquire into
intentionality, and provides guidance on different criteria
for deciding intentionality.
7.2 While most applicants are unintentionally homeless,
the intentionality criteria allows local authorities to
distinguish between the case of a person who has become
homeless through no fault of their own, and the case of a
person, who through deliberate action or inaction, has
contributed to their homelessness. Whether or not someone
is found to be intentionally homeless the local authority
should seek to find solutions to the person's homelessness
and offer support to address any difficulties that they
face.
7.3 Where an applicant has been found to be homeless, or
threatened with homelessness, and in priority need, the
local authority must then assess whether the applicant
became homeless or threatened with homelessness
intentionally. Intentionality depends on the applicant
having acted, or failed to act, deliberately, and being
aware of all the relevant facts. A person is not
intentionally homeless if it would not have been reasonable
for him or her to continue to occupy their previous
accommodation.
7.4 Local authorities should have regard to all the
circumstances of an applicant before reaching a decision on
intentionality, and each case should be decided on its
merits. Even if the local authority is satisfied that the
homelessness was intentional, the applicant is still
entitled to receive temporary accommodation, and advice and
assistance from the local authority (see chapter 9). The
local authority may also have continuing duties to children
and young people under the terms of the Children (Scotland)
Act 1995.
7.5 The circumstances in which a person is to be
regarded as having become intentionally homeless or
threatened with homelessness are set out in section 26 of
the 1987 Act. There are three requirements - all of which
must be satisfied.
- the applicant, if homeless, must deliberately
have done, or failed to do, something in consequence of
which he or she has ceased to occupy accommodation
which was at the time available to them. To be
intentionally threatened with homelessness, an
applicant must deliberately have done or failed to do
something the likely result of which was that he or she
will be compelled to leave accommodation (section
26(2)).
- it must have been reasonable for the applicant
to have continued to occupy the accommodation.
The local authority may have regard to the general
circumstances prevailing in relation to its area in
applying this test (section 26 (4)).
- the applicant must have been aware of all the
relevant facts before taking or failing to take the
deliberate actions referred to above. An act
or omission in good faith on the part of a person
unaware of any relevant fact is not to be regarded as
deliberate.
7.6 Homelessness officers must consider all the
circumstances of an applicant before coming to a decision
on intentionality. They should not simply apply standard
criteria. They must also be alert to the danger of a
precipitate finding of intentional homelessness.
7.7 It is for the local authority to satisfy itself
whether an applicant became homeless or threatened with
homelessness intentionally. There is no onus on the
applicant to satisfy the local authority that he or she did
not become homeless intentionally.
Criteria for determining
intentionality
7.8 The following points are relevant in determining
whether an act or omission was deliberate.
- An applicant must have deliberately done or
failed to do something which resulted in homelessness
or threatened homelessness. He or she would
not be intentionally homeless if he or she had not
acquiesced in the action or omission leading to
homelessness. For example, if an applicant's partner
has failed to pay rent, or defaulted on loan or
mortgage repayments, or given up a tenancy, without the
knowledge of the applicant, the applicant cannot be
held to be intentionally homeless. Similarly, the
applicant would not normally be intentionally homeless
if he or she was aware of his or her partner's actions,
but took reasonable steps to prevent it. Legally, any
responsibility to find a home for the applicant remains
even if the partner whose acts or omissions were
responsible for the homelessness in the first place
remains in the household, and so will benefit from the
local authority's discharge of that
responsibility.
- The person concerned should have acted or
failed to act in a way which that person knew could
result in homelessness. So, for example, a
mentally ill person, or someone with learning
disabilities, may well have been unlikely to have acted
deliberately, and so should not be treated as
intentionally homeless. Similarly, where a person has
been evicted for anti-social behaviour local
authorities should take account of contributory factors
including the effects of any mental illness or learning
disability (see paragraphs 2.59 onwards in chapter 2
for more guidance on anti-social behaviour and
homelessness). Even if the applicant seems to be
homeless only because of his or her financial (or
other) imprudence or lack of foresight, it should not
be automatically decided that the homelessness was
intentional.
7.9 Other factors relating to an applicant that an
authority may wish to take into account are youth;
inexperience; education; or health (including whether or
not there is a history of substance abuse).
7.10 This list of relevant factors is not intended to be
exhaustive, and local authorities must consider all the
circumstances of each case, not just single factors.
Leaving temporary accommodation
7.11 In general, a person who has to leave temporary
accommodation because his or her right to live there has
expired, should not be regarded as being intentionally
homeless, for example if a short assured tenancy has
expired and not been renewed. However, if a person gave up
permanent accommodation, the circumstances which led the
person to leave the permanent accommodation will determine
whether homelessness was intentional. For instance, a
person who gave up permanent accommodation for an extended
holiday with the expectation of subsequently applying as
homeless might be regarded as intentionally homeless; while
someone who moved to obtain employment in the belief that
permanent accommodation would be available, but who was
made redundant, might not.
7.12 A homeless person who leaves temporary
accommodation provided pending discharge of a permanent
accommodation duty should not be considered to have become
intentionally homeless. Under section 32A(2) of the 1987
Act a person may not be found intentionally homeless from
interim accommodation.
Financial difficulties
7.13 A person who chooses to sell his or her home, or
who has lost it because of wilful and persistent refusal to
pay rent; or who has shown such disregard of advice as to
amount to neglect of his or her affairs; may well be
regarded as having become homeless intentionally. If,
however, a person's house was sold because he or she could
not keep up the loan repayments, or he or she got into rent
arrears because of real personal or financial difficulties
(for example, if he or she has become unemployed, or is
working part time, or has reduced income following death of
a partner or relationship breakdown), their acts or
omissions should not be regarded as having been deliberate.
A person should not be regarded as intentionally homeless
if he or she was unable to obtain accommodation because of
the loss of a rent deposit which was not due to a
deliberate act or omission on his or her part, nor should a
lost deposit be regarded as rent arrears.
7.14 There is no absolute test of whether someone is in
real financial difficulties - as distinct from the reasons
for such difficulties. However, areas that should be
considered include whether, if he or she continued to pay
the housing costs, the amount of disposable income left
would be equal to or less than the amount which someone
reliant entirely on benefit would be entitled to receive in
income support. It should be borne in mind that young
people under 25 receive a lower rate of housing
benefit.
7.15 Account would need to be taken in applying this
test of other necessary costs incurred by the applicant,
for example care costs, and benefit or other income
available to meet them. (It would also be relevant if the
rent paid was excessive.) Second mortgage costs related to
legitimate housing costs should be taken into account as
should the fact that housing debt is likely to be only one
part of a multiple debt problem and other creditors may
also have a claim on someone's income.
7.16 No distinction should be made between public and
private sector tenants, or between the local authority's
own tenants and other public sector tenants. Regardless of
whether the applicant is intentionally homeless, if they
have become homeless because of financial problems, it is
good practice to consider whether the applicant could
benefit from debt counselling or other advice.
Rent arrears
7.17 It should not be assumed automatically that an
applicant is intentionally homeless where they have lost
their accommodation because of rent or mortgage arrears.
Reasons should be fully explored and decisions made as to
whether arrears resulted from deliberate acts or
omissions.
Young people
7.18 Failed tenancies are a common occurrence for young
people when they first leave home, especially if they have
not had much in the way of support to sustain a tenancy.
Local authorities should consider the position sensitively
and only make a finding of intentionality where there is
compelling evidence that the applicant deliberately refused
to accept advice or engage with agencies who could provide
support and were aware of the consequences of their
actions.
7.19 A young person who has a clash of lifestyle with
his or her parents should not automatically be considered
intentionally homeless and equal weight should be given to
both the young person's views and the views of the
parent(s).
Tied accommodation
7.20 A person who becomes homeless or threatened with
homelessness as a result of losing tied accommodation
including loss of accommodation on retirement, should not
normally be considered as intentionally homeless. Neither
should a local authority expect a person to continue in
employment, if it would be unreasonable for them to remain
in the job simply in order to keep the accommodation, or if
the circumstances would have given them grounds for
claiming constructive dismissal.
7.21 Local authorities should encourage tied tenants who
know that they will have to leave a tied tenancy some time
in advance, for example on retirement, to seek advice from
the local authority or other sources on the housing options
open to them, to minimise the chances of their becoming
homeless when the tenancy ends.
Special cases
7.22 Someone who has left home because of domestic abuse
should never be regarded as having become homeless
intentionally, because it would clearly not be reasonable
to have stayed at home. Similar rules should be applied to
those who leave because of external violence or threats,
for example racial attacks or anti-social neighbours.
7.23 An applicant who has not exercised his or her
occupancy rights under the Matrimonial Homes (Family
Protection) (Scotland) Act 1981 should not be regarded as
intentionally homeless for that reason, regardless of why
those rights were not exercised. In relevant cases, advice
should be made available to applicants on what their rights
are under the Matrimonial Homes (Family Protection)
(Scotland) Act 1981, and how they can enforce these rights
if they wish.
Period for which intentionality lasts
7.24 If a local authority decides that a person became
homeless intentionally, the person should not be considered
to be intentionally homeless for all time; nor should a
fixed period of disqualification be applied.
7.25 If a further application is made then that
application should be considered on its merits. If there is
reason to believe that there has been a change of
circumstance, for example if through social work support
the behaviour of a person evicted for anti-social behaviour
has improved, or if some genuine efforts are being made to
reduce rent arrears, then there may well be sufficient
grounds to merit a review of the earlier decision, taking
into account the altered circumstances. Applicants should
be given a clear indication of what change of circumstances
would allow them to apply again or have their case
reconsidered.
Future changes
7.26 The Homelessness etc (Scotland) Act 2003 provides
for changes to the intentionality regime. These are:
- changing the duty to investigate intentionality to
a power to do so; and
- changing the duty owed to intentionally homeless
households, requiring local authorities to grant a
short Scottish secure Tenancy (
SST) with housing support to these
households. Where this short
SST remains in place for a year then
the household will be entitled to a full
SST. If the short
SST fails then the local authority
will continue to have a duty to provide non-tenancy
accommodation and support, but not to provide a tenancy
(although it may do so if it wishes). Similarly, where
the applicant is intentionally homeless but also
subject to an
ASBO or has been evicted for
anti-social behaviour in the last 3 years, the local
authority is not required to grant a short
SST with support but must still
provide non-tenancy accommodation and such support as
it considers appropriate. In addition, see paragraph
67-74 on
ASBOs and subsequent
homelessness.
7.27 The relevant provisions of the 2003 Act have not
yet been commenced but local authorities should be aware
of, and preparing for, implementation including development
of services. Work is being undertaken at present looking at
models of accommodation and support for intentionally
homeless households. Further guidance will be issued as the
2003 Act is commenced.
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