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CHAPTER FIVE: LEGISLATIVE CHANGE & GUIDANCE

Issues.

Many of these have been discussed in depth in previous sections and as such are referred to here in basic terms strictly in relation to their guidance or legislative aspects.

General Guidance.

Councils express very ambiguous and contradictory views on centralised guidance demonstrating a confusion about its assumed authority, purpose and role. The basic questions would seem to be to what extent has guidance to be followed and what is its connection to regulation and inspection? What are the consequences if councils choose to ignore guidance and take matters forward their own way? When is guidance not guidance but instruction?

General comments were made that at times guidance can be too prescriptive, preventing councils from adapting the guidance to fit with local circumstances. At other times guidance is not prescriptive enough, an example of this given by a number of councils was the 2009 target which will result in councils adopting differing strategies which will lead to inequalities of assessment and may lead to some councils being more attractive to present to for certain clients.

2009 Target.

A number of councils expressed the view that they will not be able to achieve their 2009 target to halve the numbers on non-priority applications since the 2003/04 baseline. For a few of those the proportions of such applications has actually increased since the target was set. At the time of the visits, the majority of councils had still not made final decisions what steps they would take in redefining vulnerability - the procedure most commonly being adopted. Many of those which had introduced new criteria felt these had been quite arbitrary and had only added to the pressures on temporary accommodation and subsequent lets to permanent housing. Others have decided to concentrate more on how to expand their provision of temporary accommodation to better cope with the increasing numbers of people already applying.

Opinion was divided between those councils which thought the Government should have been more prescriptive in its guidance as to how councils should go about meeting their targets and those who thought it was appropriate councils retain flexibility on how it should be done on the basis of local considerations and circumstances.

Advocates of the "centralist" argument were concerned that councils being left to themselves would result in wide inconsistencies across the country and lead to homeless people seeking out these areas which appeared more open or liberal in their approach about who they would class as 'priority'. A harder line in one council could have an impact on its neighbours, particularly in the event of local connection being suspended at some future date.

There are very few examples of neighbouring councils getting together to consider a common approach. One attempt to do so failed to reach an agreement.

Councils were also uncertain as to what sanctions would apply should they fail to meet the 2009 target. Is there any flexibility or what allowances would be made for councils not meeting the reductions in non-priority decisions? Would failures be interpreted as indications that councils were not on course to meet 2012 in line with the 2005 ministerial statement in terms of Government's monitoring of the national target? If so what are the implications?

Possible amendments to the Unsuitable Accommodation Order.

Most councils are in agreement for the removal of the exception for Women's Aid accommodation; however additional time and capital funding is required to make alterations or reprovision current accommodation. Flexibility is required in the use of out of area placements with the best interests of the client being more important than "artificial" council boundaries. However recognition was given on the issue of ensuring the council to which the client was being placed was made aware of the placement to allow sufficient risk assessments and discussion on the suitability of the accommodation used.

In relation to shared accommodation for those who have previously been looked after, points have been made that some models of accommodation for this client group have proved to be very successful and that a range of provision should be allowed for this group.

Guidance on Section 7 Accommodation and guidance following from the Intentionality research.

Councils are concerned with the implications of the continuing duty to accommodate intentionally homeless households. There are also concerns as to what level and how support should be given. Guidance is also required advising if and at what stage accommodation and support could be withdrawn or any duty to continue to accommodate ends.

There are also concerns that homeless teams could be the only teams left with a seemingly unending statutory duty to work with those at the extreme end of society, many of whom have medical, social and addiction issues without that team having the specific skills to deal with these issues. It is also pointed out that though this group may be small in number they can take up an inordinate amount of staff time and resources.

Further clear guidance is required on the definition of homelessness when making an assessment decision.

As the homeless test will be the only test remaining it is imperative that all councils are making assessments on a consistent basis. Particular concern relates to the definition of whether it is "reasonable" to continue to occupy a property.

The Code of Guidance states that what is reasonable is a matter of judgement and will depend on the personal circumstances of the applicant. It then gives examples of when it is unreasonable to continue to occupy but states these are not exhaustive and sympathetic judgement must always be exercised. Concerns have been raised particularly by councils who had been inspected with regard to how "reasonable to occupy" is interpreted by Regulation and Inspection, which on occasion appeared to be more prescriptive than the Code of Guidance.

Guidance on defining, recording and monitoring the effectiveness of prevention work.

A number of authorities expressed difficulties in doing this and were concerned that they weren't accurately recording the effectiveness of their prevention activities. Councils are looking for guidance on this either from the Government or from other councils who may have good monitoring mechanisms in place. Other concerns related to Regulation & Inspection and the possibility that prevention work would be judged to be gate keeping. Others were looking for good practice guidance and examples of prevention work which had been particularly effective.

Guidance on suspension of Local Connection including multiple applications and grounds for application for revoking suspension.

Most of the councils visited made comments on the suspension of local connection. They expressed the view that the suspension in conjunction with the policy changes they will make to meet the 2009 interim target risked making their council more attractive and accessible to higher numbers of people who might take advantage of the homelessness legislation to apply to live there. Some rural and island councils feel particularly vulnerable in this regard on the basis that even a small increase in numbers successfully presenting has a significant effect on all services not just housing.

A number of councils are also requesting that the Government provide guidance on the handling of multiple homeless applications to different councils when local connection is suspended. In addition they are also seeking information on what
the procedure will be if a council wished to apply for the reinstatement of local connection in its area.

Good practice guidance on most effective ways to engage with those clients notified under Section 11.

A number of issues have been raised in relation to implementation of Section 11. Some councils view that notification at Notice of Proceedings stage is too early and it should be carried out at court stage, others that this is too late. Others have concerns that they do not have the staff resources to implement it effectively or how to ensure that landlords and lenders notify the council as there are no sanctions for non-compliance. There are also concerns that landlords/lenders will take a reduced role in working with their own tenants/borrowers to prevent homelessness as the notification may imply this is the council's role. Guidance on all of the above issues is looked for.

Good practice guide on operation of RDGS schemes.

Many councils have introduced schemes but with varying levels of success. In some areas RDGS schemes have proved very effective in assisting certain clients obtain and retain good quality accommodation in the private sector and have assisted private landlords and councils to work more closely together. In others the impact has been less, either because the sector is small or the accommodation is already in high demand from other customers such as migrant workers, professional or commercial sectors or tourism. In these circumstances landlords with their own secure markets may have little interest in working with deposit guarantee schemes. In these situations councils are looking for innovative ways to engage with private landlords.

Dissemination of research into allocations and good practice guidance on allocations policies and "reasonable preference".

As already noted concerns are being raised, particularly by elected members, about the possible impact of increasing allocations to homeless households at the potential expense of others on the waiting list. Councillors have concerns that social housing will become further residualised as only the most disadvantaged in society are able to access social housing. The 1987 Act sets out categories of applicant who should be given reasonable preference in allocations policies, only one of which is homeless applicants. Councils are seeking clarity on how the genuine needs of homeless people can be balanced with the legitimate claims of others in need of affordable and secure accommodation.

Research into operation and effectiveness of Section 5 referrals.

During the visits the disparity in the effectiveness of the Section 5 process has become apparent. This issue is particularly concerning for those councils who have transferred stock to Registered Social Landlords. There is a perceived lack of transparency on availability of stock in some cases. There are also varied protocols and processes in place regarding Section 5 and as a result nationally differing levels of assistance being given to housing homeless applicants by RSLs.

Good practice guide for private landlords in relation to housing and tenancy law.

Councils are now working more closely with private landlords as a result of landlord registration, PRS leasing schemes and RDGS schemes. A number of councils have also set up voluntary landlord accreditation schemes and landlord's forums to work with landlords to assist them provide a fair and responsible service to their tenants. As a result of this process of engagement it has become clear that a good practice guide in housing and tenancy law for private landlords and including a local strategy of how public and private sectors could work together to better address housing need would be beneficial. This is something which can be linked into the private landlord registration process.

Guidance on how councils should act in the "best interests of children" experiencing homelessness.

As a result of the visits it has become clear that best practice for assisting young people who are leaving care in finding the most appropriate accommodation varies between councils. The need to seriously and critically review the corporate parenting role of councils in regard to Throughcare and Aftercare has already been argued in this paper. The best interests of children in other vulnerable situations must also be borne in mind.

Research to be published into the health needs of homeless families.

Again during the visits it has been recognised that homelessness and the lack of housing is not the only defining characteristic of those who present. A number have health needs which may have contributed to their current circumstances. Councils have recognised the need to ensure that all homeless clients can access appropriate health or addiction services. Health and homelessness standards have gone some way to achieving this but further research would be of assistance in ensuring that as councils begin to look to longer term sustainable solutions that health needs are properly taken into account.

Research and guidance on preventing and addressing homelessness amongst Black and Ethnic Minorities ( BME) households.

Councils recognise the need to understand the specific cultural circumstances which may affect those from ethnic minority households. Unfortunately little information is available within the Code of Guidance in dealing with homeless applications from this group and it is recognised that research and guidance in assisting to prevent and address homelessness amongst this group would be of benefit.

Guidance/good practice examples on what works well in relation to addressing employability issues for homeless people.

It was clear from the visits that most councils are very focussed on the process of alleviating crisis and providing housing for those who present as homeless. Only a few councils made particular mention of work being undertaken to address the longer term resettlement and support issues which will have to be addressed in order to prevent the cycle of repeat homelessness. One of these longer term issues relates to the employability/training needs of many homeless applicants. Most councils are aware that this is an area which they need to take forward but the issue requires specialist knowledge and understanding of local labour markets and economic development as well as establishing dialogue with local employers. Other disciplines and interests need to be involved.

As a result only a few have started to put together the necessary partnership frameworks to assist homeless clients back into employment or training. Further guidance and good practice examples of ways of achieving this will be welcomed, but the resource implications need to be appreciated and other appropriate services and departments will be required to take the leading roles.

Consider the social and legal implications of extending the role of the private renting sector in discharging duty to homeless applicants.

Virtually all councils raised the requirement to make better use of the private sector in the prevention and alleviation of homelessness. There are widespread calls for this type of accommodation to be used for the many clients for whom it would be most suitable or even more suitable than a secure tenancy in the social sector. It is recognised there are concerns around affordability and security which have to be addressed, but the prevailing blanket exclusion of the private sector is no longer feasible if 2012 is to be achieved.

Code of Guidance to be updated to reflect amendments and additions to all legislation and guidance.

As legislation is rolled out up to 2012 it is expected that the Code of Guidance will be updated as and when necessary in consultation with councils to ensure they have all the available assistance in carrying out their new duties.

What are Councils looking for?

• General Guidance. Councils are looking for an appropriate balance in the range and status of guidance provided. In cases where it is clear that guidance could either be prescriptive or flexible councils would request that they are fully consulted and a national decision reached on whether in the whole it would be better for that guidance to be national or flexible for individual councils. Councils also need to be clear on what sanctions apply if guidance is not considered appropriate to local factors and is not followed.
• 2009 Target. Councils are seeking clarity around the issues they raised in relation to the 2009 target. The need to phase the process towards 2012 is generally acknowledged but the operational implications need further consideration.
• Unsuitable Accommodation Order. Councils would not generally wish for the order to be extended to the categories proposed with the exception of the proposals for Women's Aid accommodation. In respect of Women's Aid, councils would appreciate reasonable time to alter current accommodation or to re-provision where necessary.
• Section 7 Accommodation/Intentionality. Councils require clear guidance on what type of accommodation provision can be used as Section 7 accommodation. What level and intensity of support is required for intentionally homeless households? What sanctions will there be if any for those who decide not to engage with support or act in an anti-social or aggressive manner whilst staying in Section 7 accommodation? Councils have serious concerns that homeless teams could be left dealing with a group of clients which they do not really have the expertise to help.
• Definition of Homelessness. Councils would seek that the definition of the term "reasonable to occupy" is given greater clarity in the Code of Guidance, without which it is open to varying interpretations.
• Prevention. Councils are keen that any examples of prevention work which are being undertaken and have been proved to be successful are disseminated to all. It would also be useful if mechanisms to monitor and evaluate the effectiveness of prevention work were shared between councils.
• As prevention will be a major factor in the ability to achieve the 2012 target, councils would want the Government to assist homeless teams push for greater prevention and intervention work from partner agencies and organisations. This corporate/partnership approach will be vital in assisting councils to meet the 2012 target.
• Councils and Government need to agree on what may be seen as prevention and what may be interpreted by others as gate keeping.
• Local Connection. Councils wish clear guidance on the handling of multiple homeless applications to a number of councils. Information is also sought on the process of application for re-instatement of the test. This process should be tailored to the particular nature and circumstance of the council applying for reinstatement. This information and guidance should be published prior to any suspension.
• Section 11. Councils are seeking guidance on the best way to handle notifications received. How to identify those who may be in greater risk of losing accommodation than others, as not all Notices of Repossession automatically lead to court action. How do councils ensure that all landlords and lenders comply with the notification procedure? Councils would wish the Government publicise the requirement to notify on a national basis prior to implementation. Councils would want to ensure that landlords/lenders do not abdicate their duties to their own tenants/borrowers in relation to prevention because they have passed this role to the council by notifying.
• RDGS Schemes. Those councils with particular pressure on their private rented sector who have found it difficult to get landlords to sign up to a RDGS scheme are particularly keen to have guidance on schemes and ways to encourage landlords to join schemes. Others would welcome good practice guidance on the running and expansion of schemes. Of particular interest would be information on effective ways to assist those who are single and under 25 to access the private rented market.
• Allocations & Reasonable preference. Councils are trying to increase allocations to homeless applicants to reduce lengths of stay in temporary accommodation and bed and breakfast but have difficulties in getting allocations reviews through committee because of the requirement to give reasonable preference to a number of categories of applicant.

If 2012 is to be achieved elected members have to be made aware that this may only be achieved by increasing the proportion of lets to homeless applicants at the expense of others. Councils need the reasonable preference definition in relation to homeless applicants to be clarified.

• Section 5. Many councils are looking to RSLs to take a far greater role than they currently do to assist housing homeless clients. The Section 5 process needs to be overhauled with clearer guidance on what information should be provided by both RSLs and councils to allow the process to run more smoothly and assist increased numbers to secure accommodation.
• Guidance for Private Landlords. Councils as a result of a number of different developments now work more closely with the private sector than ever before. From this closer relationship it has become clear that there is still a great need for good practice guidance to be given to private landlords. This guidance should include examples of all the appropriate legal documents required in setting up and terminating a tenancy. It should contain advice on tackling anti-social behaviour with references to all options not just legal recourse e.g. mediation or support services which may be available to those who rent privately.
• Best Interests of Children Experiencing Homelessness. There are two aspects to this guidance which should be looked at. The first is the council's own corporate parenting role for those who had been looked after by the council. Councils need to look at and challenge their own practices in assisting this group. Guidance should include good practice examples of the type of accommodation and support which can be provided for this client group and thus assist in preventing the cycle of repeat homelessness. The guidance should also cover the best interest and needs of those children who have been made homeless possibly as a result of a traumatic family experience.
• Health Needs. Health issues are one of the factors which can cause homelessness and repeat homelessness. Guidance will be welcome on health needs and ways to access and maintain access to health and addiction services for homeless clients.
• Preventing and addressing homelessness amongst BME Households. Although this group can be small councils would welcome any guidance on the specific cultural issues which can affect this client group and can lead to homelessness. Councils would welcome this specific piece of guidance as there are circumstances specific to this client group which council staff has limited knowledge of.
• Employability. Councils have recognised themselves that the majority are still currently dealing with the crisis situations within homelessness and realise that the longer term prospects of homeless clients need to be addressed.

In that respect any guidance and good practice examples which can be given in relation to employability and training issues will be welcomed and will hopefully act as the driver for councils to look more closely at the longer term solutions for homeless clients.

• Discharge of duty to PRS and tenancy regime. The majority of councils agree that to discharge duty to the private sector would be of assistance, but accept that the current prevalent tenancy offered, the Short Assured Tenancy does not in most cases provide enough security for the client. Given the importance of utilising the private sector as we move to 2012 councils would hope that options to use the private sector are examined as a matter of urgency.

Legislative change and Guidance

Actions currently underway

As part of the Firm Foundations agenda the Scottish Government is reviewing the role the private rented sector plays in meeting local housing needs.

Suggested actions in response

31. The Scottish Government should: collate and publish examples of effective prevention approaches or schemes; provide guidance on the recording and monitoring of prevention activities; and ensure that there is clear guidance on what prevention is and what will be viewed as gate keeping. This guidance should be agreed by the Scottish Government, ALACHO, COSLA and Regulation & Inspection.

32. The Scottish Government should consult with all interested parties and consider adjusting The Code of Guidance to give a more comprehensive definition of "reasonable to occupy" when determining whether an applicant is homeless.

33. The new administration should advise councils which guidance it intends to publish and set out a timetable for doing so.

Actions 8 & 13 [relating to priority need categories, and reasonable preference] address legislative and guidance issues also.

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