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Annex A:
SUMMARY OF LEGISLATIVE CHANGES
The following is a summary of the changes introduced by
the Housing (Scotland) Act 2001 and Homelessness etc
(Scotland) Act 2003 - it is not intended to be detailed
legal advice on the provisions.
Housing (Scotland) Act 2001
- Section 1 requires local authorities
to assess the levels of homelessness in their area and
produce homelessness strategies. Guidance has been
issued which incorporates the recommendations of the
Homelessness Task Force and stresses the need for the
development and delivery of strategies to be a
corporate undertaking and to involve partnership
working with agencies external to the local
authority.
- Section 2 requires local authorities
to provide information and advice about homelessness
free of charge - guidance on the form and content of
this has been issued.
- Section 3 makes a number of
alterations to the Housing (Scotland) Act 1987. These
have the effect of:
- Changing the
definition of homelessness to ensure
that people with reasonable accommodation overseas
cannot apply as homeless.
- Ensuring that people who are
assessed as having a priority need and unintentionally
homeless are entitled to
permanent accommodation, setting out a
definition of permanent accommodation and stating that
if this is not provided the applicant should continue
to be assessed as homeless. This section also gives
local authorities the discretion to place someone in
interim accommodation where there is a duty to provide
permanent accommodation - regulations setting out the
circumstances in which this can be done have need
issued.
- Lengthening the period during which
people can be assessed as
'threatened with homelessness' from 28
days to 2 months.
- Requiring that anyone who is
assessed as homeless has a right to
temporary accommodation whilst
enquiries are made.
- Requiring that all homeless people
are entitled to a minimum of
temporary accommodation, advice and
assistance - the type of advice and assistance
to be provided is set out in regulations.
- Requiring that accommodation offered
is
reasonable to occupy and meets any special
needs the applicant may have.
- Requiring local authorities to have
regard to
the best interests of children in
exercising their functions.
- Section 4 gives applicants the right
of
internal review of a decision.
- Section 5 provides that
Registered Social Landlords must
comply with a local authority's request to provide
accommodation unless there is a 'good reason' not to -
guidance on what constitutes a 'good reason' has been
issued.
- Section 6 sets out the procedures for
arbitration where there is a
disagreement between the local authority and the
RSL - Communities Scotland have
issued guidance on this.
- Section 7 gives Ministers the power to
issue regulations setting out
minimum terms of occupancy for persons
living in hostels and other short-term accommodation.
These regulations have not yet been made.
Homelessness etc (Scotland) Act 2003
Section 1 expands priority need categories
to include those currently listed in the 1997 version of
Code of Guidance -
i.e. all those who are under 18 or who have
been subject to harassment or domestic abuse, people under
21 who are vulnerable to financial or sexual exploitation
or involvement in substance misuse due to their living
circumstances and anyone who is vulnerable as a result of
personality disorder, leaving hospital, prison or the armed
forces, having suffered a miscarriage or undergone an
abortion or chronic illness. This section came into force
on 30 January 2004.
Section 2 gives Ministers the power to
specify a time from which priority need is to abolished.
Ministers are required to take into account whether local
authorities can reasonably be expected to perform their
duties before making this change. This section came into
force on 30 January 2004.
Section 3 gives Ministers the duty to
consult on and publish a statement setting out the measures
to be taken to achieve the abolition of priority need. This
statement must include a target date for abolition of no
later than the end of 2012 and set interim objectives
towards the achievement of this target. This section came
into force on 30 January 2004.
Section 4 gives local authorities a
discretionary power, rather than the current duty, to
investigate whether a household is intentionally homeless.
This section is not yet in force.
Section 5 and section 6 change the
provision given to intentionally homeless households. When
these sections come into force, local authorities will be
under a duty 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 accommodation and
support, but not to provide a tenancy. However 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. These sections are not yet in
force.
Section 7 provides that accommodation
provided for asylum seekers under the Immigration and
Asylum Act 1999 (
i.e.NASS accommodation) does not constituted
accommodation of the applicants' own choice so does not
establish a local connection. This section came into force
on 30 January 2004.
Section 8 gives Ministers a flexible power
to modify the application of the local connection
provisions of the 1987 Act. This power can be exercised in
a variety of ways - local connection can be suspended
altogether, and reactivated again or it can be applied
differently between certain local authorities or for
certain categories of applicant. The Bill requires that
Ministers consult on and make a statement setting out the
circumstances in which, and the criteria by reference to
which, the power is to be exercised. This section is not
yet in force.
Section 9 gives Ministers the powers to
specify accommodation that is NOT suitable as interim
accommodation. This section came into force on 30 January
2004. An Order laid under this section specifying
unsuitable temporary accommodation and the exceptional
circumstances in which it may be used came into force in
December 2004. See chapter 9 for more details of
LAs' duties under this Order.
Section 10 amends various parts of the
1987 Act to replace references to domestic "violence" with
references to domestic "abuse". This enables consistency
with the wording in section 25 and extends the references
to include behaviour other than physical violence. This
section came into force on 30 January 2004.
Section 11 requires landlords to notify
the relevant local authority when they raise repossession
proceeding. This section is not yet in force.
Section 12 requires that sheriffs should
consider reasonableness in repossession proceedings where
rent arrears are due to a delay or failure in Housing
Benefit. This section came into force in July 2004.
Appendix 13E - guidance on habitual
residence
The term habitual residence is intended to convey a
degree of permanence in the person's residence in the
CTA; it implies an association between
the individual and the country and relies substantially on
fact. When deciding whether an applicant is habitually
resident, housing authorities should take account of the
applicant's period of residence and its continuity, his
employment prospects, his reason for coming to the
UK, his future intentions and his centre
of interest.
A person cannot claim to be habitually resident in any
country unless he has taken up residence and lived there
for a period. There will be cases where the person
concerned is not coming to the
UK for the first time, but is resuming a
previous period of habitual residence. Annex 22 of the
English Code of Guidance
27 provides detailed guidance on the factors that a
housing authority should consider in determining whether an
applicant is habitually resident in these circumstances.
However, the fact that a person has ceased to be habitually
resident in another country does not imply habitual
residence in the country to which he has travelled.
A person who is in stable employment is more likely to
be able to establish habitual residence than a person whose
employment is, for whatever reason, transitory (for
example, an au pair or someone who on a fixed, short-term
contract). Equally, a person, one of whose apparent aims in
coming to the
UK is to claim benefits, is less likely
to be able to establish habitual residence. A person who
intends to take up permanent work is more likely to be able
to establish habitual residence, as is a person who can
show that he has immediate family or other ties in the
UK.
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