Homelessness Policy Watch
A review of government policies which impact on
homelessness by Crisis and NPI
About homelessness
Scottish Legislative Framework
In 1999, the devolution settlement meant that Scotland was able to establish its own parliament and is therefore able to pass primary legislation.[1] Prior to that, Scotland had secondary legislative powers (similar to those granted to the Welsh Assembly ). And prior to that, legislation passed in Westminster affected Scotland as well.
The first major initiative of the devolved Scottish Executive relating to homelessness was the 2001 Housing (Scotland) Act. This gave homeless people in Scotland a new ‘package of rights' and aimed to improve services from councils. In particular, all homeless households judged not to be in priority need became entitled to at least temporary accommodation.
The 2003 Homelessness etc. (Scotland) Act included a provision to abolish the distinction between in priority need and not in priority need by 2012 at the latest. In other words, by 2012, all homeless households will become entitled to accommodation rather than just those who are in priority need. The 2003 Homelessness etc. (Scotland) Act also included changes regarding intentionally homeless people, representing a more proactive approach, which sought to address the underlying causes of intentional homelessness. The legislation also suspends the local connection clause in the 1996 Housing Act in Scotland, meaning that a local authority can no longer deny applicants help if they are deemed to have a stronger local connection with another local authority. The importance of the 2003 Homelessness etc (Scotland) Act cannot be overstated. It represents a cultural shift in the way in which homeless people are treated - from a system based on rationing to a system based on rights. For the first time, it means that everyone will have a right to a home.
KEY LEGISLATION
The 2001 Housing (Scotland) Act
In 1999, the Scottish Homelessness Task Force was set up by the Scottish Executive to look at the underlying causes and nature of homelessness, and to focus on prevention. The work raised the profile of single homelessness beyond that of rough sleeping. It produced its first report in 2001, which formed the basis of homeless changes within the 2001 Housing (Scotland) Act. The 2001 Housing (Scotland) Act did two main things to help homeless people.
First, it strengthened the local authorities' strategic function, by placing:
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a duty on authorities to carry out homelessness strategies; and
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a duty on authorities to make advice and information free of charge and available to all.
Second, it increased the rights of homeless people, by giving:
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every homeless person the right to temporary accommodation while their case is assessed; and
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every non-priority applicant the right to advice and information and temporary accommodation for a reasonable period; and
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everyone a right to review homeless decisions; and
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the power for ministers to establish minimum rights to people in hostels.
The 2001 Housing (Scotland) Act thus pre-empted much of the 2002 Homelessness Act in England and Wales, for example, the duty to carry out homelessness strategies, the duty to provide advice and information for all applicants, and the right to review. However, important differences remain, including:
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In Scotland, any homeless person is owed the temporary duty to be accommodated, and any person is owed the temporary duty whilst their case is assessed. In England and Wales, such duties only apply to those who are judged to be in priority need.
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The 2001 Housing (Scotland) Act paves the way for minimum rights for hostel dwellers through secondary legislation. No equivalent was included in the 2002 Homelessness Act in England and Wales.
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Finally, the 2001 Housing (Scotland) Act amended the definition of homelessness, such that ‘threatened with homelessness' definition was extended from one month to two months. Aside from that, the definition of homelessness in the 2001 Housing (Scotland) Act is very similar to that found in the 1996 Housing Act for England and Wales.
The 2003 Homelessness etc. (Scotland) Act
In 2002, the Scottish Homelessness Task Force published its final report Helping homeless people: an action plan for prevention and effective response which set out the agenda for tackling homelessness in Scotland until 2012. It made 59 recommendations, which were all subsequently endorsed by the Scottish Parliament. The 2003 Homelessness etc. (Scotland) Act took forward those recommendations that related specifically to homelessness.
The most important change was that of the abolition of priority need by 2012. Other changes included greater duties towards those who are intentionally homeless, and the suspension of local connection. Taken together, the Scottish Executive described this legislation as "the most progressive homelessness legislation in Europe".
Abolition of priority need categories
Priority need is to be phased out in Scotland by 2012. Aside from the end date, no exact timetable has yet been set out. In 2002, the Homelessness Task Force report proposed a three phase abolition:
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Phase One: extension to all those mentioned in the Homelessness Code of Guidance as vulnerable.
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Phase Two: extension by age, to include those under 25 and those over 55.
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Phase Three: extension to all homeless people by 2012.
Changes to rights granted to those who are ‘intentionally homeless'
The 2003 Homelessness etc. (Scotland) Act included changes to legislation regarding intentionally homeless people, but these have not yet come into force. If implemented, these changes will mean that local authorities will have a duty to provide intentionally homeless people in priority need with a Short Scottish Secure Tenancy (SSST), with appropriate support to help address the cause of intentionality and with the aim to convert the SSST to a full Scottish Secure Tenancy within a year. Currently, local authorities have no such duty towards intentionally homeless people. The Act therefore represents a shift towards a more proactive approach, which seeks to address the causes of intentional homelessness, for example, by providing money advice for those with debts and arrears, and thereby help bring about sustainable solutions and a reduction in repeat homelessness.[2]
Note that an SSST does not provide a guarantee against eviction in the event of arrears, anti-social behaviour, etc. However, even where households fail to sustain their SSST, the local authorities will have an on-going duty to accommodate, either with a new tenancy or accommodation on an occupancy basis, with support (see section seven of 2001 Housing (Scotland) Act ).[3]
A second change is that local authorities will no longer have a duty to carry out intentionality investigations (although they retain the power to do so if they wish) after the changes in legislation are implemented. This in practice will reduce the workload of the local authority, and set the default position at one of greater entitlement rather than less.
Collectively, these changes are intended to broaden the safety net, and to stop a reactive 'trap-door response' by local authorities towards intentional homelessness. No equivalent exists in England or Wales.
Suspension of ‘local connection'[4].
In England and Wales, under Section 193 of the 1996 Housing Act, local authorities have discretionary powers to refer the applicant to another authority with which the applicant has a stronger local connection. The ‘local connection' clause is sometimes exercised by local authorities to filter applications before they are made. The 2003 Homelessness etc. (Scotland) Act suspended this clause in Scotland to avoid local authorities sometimes filtering applications before they are made.
Consultation on Section 11
In December of 2006, the Scottish Executive undertook a consultation on Section 11 of the Homelessness Act. This Section requires all landlords (other than local authorities) and creditors to notify the relevant local authority when they raise repossession proceedings or serve certain other notices. The aim is to alert local authorities to families at risk of homelessness. The consultation is designed to ensure interested parties can express their views on the implementation of Section 11 and the associated regulations and guidance. The responses to this consultation were being analysed in the summer of 2007 and the new administration are understood to be keen to implement this section of the legislation quickly.
SECONDARY LEGISLATION
A variety of measures contained within the 2001 Housing (Scotland) Act and the 2003 Homelessness etc. (Scotland) Act allow for changes to secondary legislation. These include the powers to legislate on the suitability of accommodation, on the rights of people in non-tenancy accommodation (primarily hostel dwellers) and on changes to Right to Buy.
The Unsuitable Accommodation (Scotland) Order 2004
The 2003 Homelessness etc. (Scotland) Act included an amendment giving the Scottish Executive powers to introduce regulations to ban certain forms of temporary accommodation. This has been used for the first time in November 2004, with the Unsuitable Accommodation (Scotland) Order 2004. The Unsuitable Accommodation Order commenced on December 2004. It requires accommodation for families and pregnant women to meet certain standards (for example, 24-hour access, exclusive use of toilet and sink, access to cooking facilities, suitable for children, etc). If it does not, then the accommodation will be deemed unsuitable and families cannot be accommodated in it. In practice, the Order mainly targets bed-and-breakfast accommodation since many of them do not meet the basic standards and will therefore be deemed unsuitable.
There are exceptional circumstances in which sub-standard accommodation may be used, such as at a time of emergency, but where these exceptions are due to out-of-hours applications or a shortage of alternatives the maximum amount of time that a person can stay in these cases is limited to 14 days.
The draft legislation on rights of people in temporary accommodation
The Scottish Executive carried out a consultation on the minimum rights of hostel dwellers and people in temporary accommodation (Consultation on regulations under section 7 of the 2001 Housing (Scotland) Act). Draft legislation provides for minimum conditions, especially the right to a minimum notice period and will include basic standards expected from both landlord and lodger, to be built upon in the future. However, complexities surrounding housing law have made this piece of legislation difficult to pass and it has taken four years even to reach consultation stage. It is unclear as yet how and when these complexities will be resolved, particularly since the consultation does not appear to have yielded a unified response.
Right To Buy
Scotland has powers to change Right to Buy legislation. In 2001, ‘Modernising the Right To Buy' was introduced, which basically meant that local authorities could apply to be considered ‘pressure area status', and therefore could suspend Right To Buy, if they meet certain conditions. Several Scottish councils have now suspended the right to buy in pressured areas.
‘Modernising Right to Buy' also included the requirement for the Scottish Executive to carry out an investigation into Right to Buy in Scotland. Their report, The Right to Buy In Scotland, Pulling Together the Evidence, was published in September 2006 and includes a summary of the trends in Right to Buy sales, and its impact on the availability of social housing.
End notes
[1] 'Primary legislation' are acts or statutes which apply in their own right. 'Secondary legislation' are orders, rules, regulations or schemes which are under the authority of a previous Act and are used to state the law in more detail. Back to text
[2] ‘Support' as defined in the 2001 Housing (Scotland) Act is "any service which provides support or assistance advice or counselling to an individual with particular needs with a view to enabling that individual to occupy or continue to occupy...residential accommodation". Back to text
[3] As detailed in the 2001 Housing (Scotland) Act. If a tenant has already failed such a tenancy within the previous 12 months, the local authority can decide whether to provide another short term tenancy or can opt for accommodation under hostel type occupancy rights. Back to text
[4] The local connection clause has meant that applicants can be denied help from the local authority if they are deemed to have a stronger local connection with another local authority. A local connection is determined by whether a person is or was a resident in the area, because the person is employed in the area (in both cases for 6 of the previous 12 months), whether the person has family associations there, or whether the person has special circumstances that require them to be in the area (e.g. health needs). Back to text
Page last modified on 20/06/2008 at 16:49