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HOMELESSNESS
AN ACTION PLAN FOR PREVENTION AND EFFECTIVE RESPONSE
REPORT FROM THE HOMELESSNESS TASK FORCE TO SCOTTISH MINISTERS

IMPROVING THE HOMELESSNESS LEGISLATION

18. In our first report we recommended a number of changes to the Housing (Scotland) Act 1987 (the 1987 Act) which places statutory duties on local authorities in respect of people assessed as homeless or threatened with homelessness. We recommended that:-

(i) additional duties should be placed on local authorities to draw up homelessness strategies and to secure that advice about housing and other services is available free of charge to any persons who consider themselves to be at risk from homelessness;

(ii) new arrangements should be made for the monitoring and regulation of local authorities in carrying out their duties under the homelessness legislation;

(iii) the legal rights of homeless people should be strengthened in a number of respects, and;

(iv) specific legislative provision should be made to ensure that homeless people are not disadvantaged by the transfer of local authority housing into community ownership.

19. Our recommendations were included in the Housing Bill introduced into the Scottish Parliament by the Scottish Executive in December 2000 and, following careful consideration by the Social Justice Committee and the full Parliament, were enacted in what is now Part 1 of the 2001 Act.

20. That Act received Royal Assent in July 2001 and will be brought into effect progressively, as soon as the necessary preparations have been made. We have been consulted about the timetable for implementing Part 1 of the 2001 Act, the related subordinate legislation and guidance and proposals for allocating additional financial resources to local authorities.

21. In our earlier report we concentrated on changes which we could confidently recommend as the basis for early legislative action. We believe that Part 1 of the 2001 Act, based on our recommendations, significantly strengthens and improves the rights of homeless people and provides the basis for a concerted effort to prevent homelessness and to tackle it effectively whenever it does occur.

22. However, in framing our earlier recommendations we recognised that there were additional and more wide-ranging legislative proposals, which required further consideration before we could confidently recommend particular changes. Specifically, these proposals concern the concepts of priority need, intentionality and local connection which are central to the legislative framework in the 1987 Act. Having given careful consideration to possible changes in these areas, and their likely effects, we now wish to make recommendations which would significantly change the relevant aspects of the legislation.

23. As we noted in our earlier report, the 1987 Act created a hierarchy of duties placed on local authorities in respect of persons assessed as homeless. At the top of the hierarchy is a duty to provide accommodation in respect of persons who are assessed as being unintentionally homeless and in priority need. In the middle is a duty to provide temporary accommodation, and advice and assistance, in respect of persons assessed as being intentionally homeless and in priority need. At the bottom of the hierarchy is a duty to provide advice and assistance in respect of persons assessed as not being in priority need.

24. In our earlier report we recommended that these duties be adjusted and improved. We recommended that the accommodation offered to people assessed as being in priority need and unintentionally homeless should always be permanent accommodation. We also recommended that the advice and assistance to be provided to those assessed as intentionally homeless or not in priority need should be specified by way of statutory instrument; and that local authorities should be placed under a duty to secure temporary accommodation for all those assessed as homeless but not in priority need. These changes were enacted in section 3 of the 2001 Act and will be implemented during 2002. In this report we focus on further improvements to the duties under the 1987 Act.

(a) Priority need

25. As regards priority need, we see a strong case, in principle, for extending the rights currently possessed by those assessed as being in priority need to all those assessed as homeless. At present priority need is defined by section 25(1) of the 1987 Act (as read with the Homeless Persons (Priority Need) (Scotland) Order 1997) as meaning:-

any pregnant woman, regardless of the stage of her pregnancy or her age, together with anyone who normally resides with her or might reasonably be expected to reside with her;

a person with whom dependent children are living or might reasonably be expected to live;

a person who has been made homeless as a result of an emergency such as fire or flood or other disaster;

a person who has not yet attained twenty one years of age and was looked after by a local authority, in the care of a local authority or subject to a supervision requirement at the time when he ceased to be of school leaving age but is no longer so looked after, in such care, or subject to such a requirement; or

a person who is vulnerable as a result of old age, mental illness or mental handicap or physical disability, or other special reason.

26. The Code of Guidance on Homelessness issued in December 1998 offers the following advice on what circumstances may bring a person within the "other special reason" element of this definition:-

Young people of 16 or 17 years old or younger are likely to be at risk of sexual or financial exploitation or involvement in drug or solvent abuse, if they have left home without moving to stable accommodation elsewhere, and hence vulnerable.

Young people may be otherwise at risk of sexual or financial exploitation or involvement in serious drug, alcohol, or solvent abuse (even if they are over 17) because of the circumstances in which they are living. The upper age limit for a young person is not fixed, and local authorities are advised to use their discretion.

Young people who were previously looked after by a local authority (previously termed in care) may well be vulnerable and hence in priority need.

Chronically sick people, including people with AIDS or HIV related illnesses, may be vulnerable not only because their illness has progressed to the point of physical or mental disability but because the manifestations of their illness, or common attitudes to it, make it very difficult for them to find stable or suitable accommodation, and they may also be subject to harassment.

People recently discharged from institutions may be vulnerable if they are in need of support and assistance and they have no-one to provide this.

Women suffering, or in fear of, violence may be vulnerable even if they have no children.

People at risk of harassment or violence on account of race, colour, illness, sexuality, or ethnic or national origins may be vulnerable.

Women suffering a miscarriage, or an abortion, may be expected to be vulnerable because of the distress caused by the event or the surrounding circumstances.

Refugees and other eligible persons subject to immigration control forced to leave their country may be vulnerable because of continuing physical or psychological effects of persecution or other harm suffered before entering the United Kingdom.

27. Our view is that, over time, 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 therefore the priority need distinction should be eliminated. This will however need to be managed and phased so that accommodation and services are made available to those who do not currently come within the definition of priority need and so that those who are in the greatest need are not disadvantaged.

28. We recommend that the definition of priority need should be gradually expanded as services and accommodation are provided and that the target should be to eliminate the priority need distinction within a decade (i.e. by 2012). As a first step the statutory definition of priority need should be expanded to include all those assessed as homeless who:

(a) have not reached their 18^th birthday, or

(b) have experienced domestic abuse, or

(c) are otherwise vulnerable within the terms of the current Code of Guidance as quoted in para 26 above.

29. As a second step the definition of priority need should be further expanded to include any other people who may be deemed to be vulnerable. Additionally, at this stage all those assessed as homeless who are less than a specified age (perhaps 25) and all those who are above a specified age (perhaps 55) should be brought within the priority need definition. The target should be to implement this second stage around 2007/8, although the precise timing will need to be decided in the light of progress made and an assessment of local authorities’ ability to cope with this further expansion. Finally, by 2012, the priority need distinction should be abolished by extending the relevant duties to all those assessed as homeless.

30. We recognise that this course of action will require careful planning and monitoring, that additional services and accommodation will need to be put in place, and that local authorities will require additional resources for this purpose. For these reasons we strongly recommend that action is phased and that the definition of priority need is expanded at a pace which is in line with the ability of local authorities and other agencies to cope.

(b) Intentionality

31. The 1987 Act also draws a distinction between those who become homeless intentionally and those who do not. Those who are assessed as unintentionally homeless and in priority need have an entitlement to permanent accommodation, whereas those who are assessed as intentionally homeless and in priority need only have an entitlement to temporary accommodation, and advice and assistance. A person is defined as becoming homeless intentionally if he (or she) "deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy".

32. In our view it is right 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. If the intentionality criterion was abolished it would mean that the local authority would always be under an obligation to find permanent accommodation for a household whatever the reasons for their homelessness and this would undermine housing management. We therefore support retention of the intentionality criterion. However, we recommend a number of significant changes in its application.

33. Our objective is twofold. First, so far as the intentionally homeless household is concerned we wish to construct an escalator which provides every opportunity for the problems which led to homelessness to be resolved. In most cases the current arrangements provide only a trapdoor through which the intentionally homeless household descends into the equivalent of a no-man’s land. This is not sufficient in the 21^st century if homelessness is to be addressed effectively. Second, so far as the local authority is concerned, under our proposals there will always be an obligation to offer some form of accommodation. We see this as emphasising the local authority’s continuing responsibility for dealing with cases of intentional homelessness. At present the legislative framework encourages a reactive approach to episodes of homelessness and makes it possible for difficult cases to be discarded. We believe that the approach we suggest will encourage a more long-term effort to resolve the problems which underlie cases of intentional homelessness. Some local authorities are already doing useful work in this direction; we believe that our proposals will help to reinforce and stimulate this.

34. Against this background, we recommend that:-

(i) The duty placed on local authorities to investigate intentionality should be replaced by a power to do so; this will reduce the burden on local authorities and still give them all the discretion they need.

(ii) Instead of, as at present, being under a duty only to provide temporary accommodation, advice and assistance to an intentionally homeless household in priority need, the local authority should be placed under a duty to ensure that such a household is offered a short Scottish secure tenancy, with appropriate support. At present, where an anti-social behaviour order exists, or there has been a prior eviction on the grounds of anti-social behaviour, the 2001 Act places the landlord under a duty to provide, or ensure the provision of, such housing support services as it considers appropriate with a view to enabling the conversion of a short tenancy to a Scottish secure tenancy. We recommend that the local authority should be placed under a similar duty to provide, or ensure the provision of, such housing support services in respect of all short Scottish secure tenancies offered to intentionally homeless households. This new duty should be placed on local authorities corporately.

(iii) The terms of the short tenancy should outline the support which will be offered to the tenant and the action the tenant will take, with a view to converting the tenancy to a Scottish secure tenancy. Progress should be reviewed regularly. The prospective tenant should have access to independent advice and advocacy throughout the process of agreeing the terms of the tenancy and during reviews of progress. Where the landlord is not the local authority, the terms of the tenancy should be agreed between the prospective tenant, the landlord and the local authority.

(iv) If, on review, the terms of the short tenancy have been satisfied, the local authority should be under a duty to ensure that the household is offered permanent accommodation in the form of a Scottish secure tenancy. Households which have been unable to sustain a short tenancy - anticipated to be a small minority of cases — should have their entitlement to a short Scottish secure tenancy suspended until such time as progress can be demonstrated. Local authorities should however remain under a statutory obligation to make an offer of accommodation, with suitable support, during this suspension. Through their homelessness strategies, local authorities should make provision for households falling into this category. New and innovative approaches may be required in such circumstances. One such example is the Dundee Families Project, but we recognise that other situations will need other approaches.

(v) In order to avoid splitting up families, the duties proposed at (ii) and (iv) above should include a requirement to offer accommodation which can house the entire household.

(c) Local connection

35. Under the 1987 Act, local authorities can refer a homeless household to another local authority where they are of the opinion that the household has a local connection with that other authority and not with them. The local authority may not however make such a referral where this would result in a situation where a member of the household would "run the risk of domestic violence".

36. In general we believe that an application should be dealt with by the local authority to whom it is made and should not be referred elsewhere. Most homeless people apply to their local council and those who apply to another council usually have a very good reason for doing so — for example because they wish to get away from an abusive partner. We would like homeless people to have as much choice as possible, including choice in respect of the council to whom they apply. This would point to the abolition of the power to refer a homeless applicant to another local authority.

37. There is however a risk that removal of the local connection qualification could lead to an increased and unmanageable flow of homeless applicants into a few local authorities where housing is in limited supply. Accordingly we recommend that the provisions in the 1987 Act which enable one local authority to refer a homeless applicant to another authority should be suspended; but that the Scottish Parliament should have power, by way of statutory instrument, to re-activate them, either for Scotland as a whole or for particular local authorities, in case demand pressures prove intolerable.

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