Homelessness: code of guidance

Chapter 10: Notification and Review of Decisions

10.1 Summary - this chapter sets out the legal requirements relating to notification and review as well as guidance on practice - good decision-making should lead to fewer requests for review. The notification of the homelessness decision to an applicant and the manner in which it is given plays an important part in ensuring that effective solutions to an individual's housing situation are found as well as minimising the likelihood of the need for a review of a decision.

10.2 It is essential that in communicating its decision on an application the local authority ensures its response:

• is clear, easy-to-understand and as helpful to the applicant as possible;
• contains full explanation of the reasons for the decision reached and what happens next;
• provides advice on what the applicant should do if they are dissatisfied with the decision; and
• provides advice on options for the applicant if the decision is that they are not homeless or that the local authority does not have a duty to secure permanent accommodation for the applicant.

Independent advice

10.3 Applicants should be informed that they can seek independent legal or other advice on the decision if dissatisfied, and also independent representation in review procedures.

Notification

10.4 When its inquiries into a homelessness application are complete, the local authority is required by Section 30 of the 1987 Act to notify the applicant of its decision on:

• whether the applicant is homeless or threatened with homelessness;
• where the local authority has exercised the discretionary power to investigate for intentionality, whether the applicant is judged to have become homeless or threatened with homelessness intentionally; and
• whether it has notified or intends to notify another local authority of the application, because it believes the applicant has a local connection with that local authority, and not with itself.

10.5 The local authority must also notify the applicant, and give reasons for its decision:

• if it is not satisfied that the applicant is homeless or threatened with homelessness;
• where the local authority has exercised the discretionary power to investigate for intentionality, if it is satisfied that the applicant became homeless or threatened with homelessness intentionally; or
• if a referral to another local authority on local connection grounds has been or is to be made.

10.6 A local authority should inform an applicant of its decision - whether favourable or unfavourable - as quickly as possible. Normally, a decision should be notified within 28 days of the application. Where the decision will take some time because special inquiries have to be carried out, an interim reply should be sent, explaining fully the reasons for the delay.

10.7 All notifications must be in writing and where an applicant's first language is not English, a translation should be provided.

10.8 If a notification is not received by an applicant it can be treated as being given to them only if it has been made available at the local authority's office for a reasonable period for collection either by the applicant, or on their behalf. A 'reasonable period' for the collection of a notification letter from the local authority's office is considered to be 28 days.

10.9 The decision letter should state whether placement of an applicant in accommodation completely fulfils the local authority's duties or, if an interim reply is sent, whether it is only a temporary placement pending further action, such as completion of inquiries.

10.10 Where the local authority is making an offer of accommodation under the homelessness legislation, the letter should set out why it thinks the house is reasonable for the applicant. Letters should give names and telephone numbers of the relevant officer, and also advise applicants on sources of independent advice such as solicitors, Citizens Advice Bureaux or other advice centres.

10.11 If the applicant telephones for a decision, the local authority should take the opportunity to confirm the address to which the written notification required by statute should be sent, since homeless people will often move between a series of 'care of' or other temporary addresses. The address to which written notification should be sent, and a telephone contact number if desired by the applicant, should be ascertained at the time of the initial interview.

10.12 A checklist of the information that should be included in the decision letter can be found at the end of this chapter.

Review of decisions

10.13 Local authorities must notify the applicant that there is a right to review of the decision, the time within which a request for a review should be made and of any advice and assistance that is available to the applicant in connection to the review.

10.14 Local authorities have a duty to review homelessness decisions, if requested, under Section 35A of the 1987 Act. This states that:

• decisions on duties (if any) owed to applicants who are homeless or threatened with homelessness;
• the decision to notify another local authority that the local authority believe that the conditions for referral of an application to that other local authority have been met;
• the determination of whether the conditions for referral of an application to another local authority are satisfied; and
• where accommodation is secured for the applicant, whether the provision of that accommodation discharges the authority's duty to the applicant are all open to review.

10.15 A request for a review should be made within 21 days of the applicant being notified of the authority's decision, or a longer period if the authority allows this.

10.16 The procedure for the review is set out in Section 35B of the 1987 Act. This specifies that the person who carries out the review should be senior to the person who made the decision that is under review, and should also have had no involvement in the making of the decision.

10.17 The authority is (or either of the authorities are, as the case may be) under a duty to notify the applicant of the decision reached on review. If the decision is to confirm the original decision on any issue against the interests of the applicant, or to confirm a previous decision to either notify another authority or that the conditions are met for the referral of the case, then the authority should also notify the applicant of the reasons for the decision.

10.18 Notice of the decision will not be treated as given unless the reasons for the decision are given. Notice must be given in writing and shall, if not received by the applicant, be treated as having been given only if it is made available at the authority's office for a reasonable period for collection by the applicant or on behalf of the applicant.

10.19 Under Section 29 of the 1987 Act temporary accommodation should be provided to applicants requesting a review of the decision of the authority until they have been notified of the review decision of the authority and, if appropriate, the reasons for the decision.

10.20 Applicants should be advised that they have a right to temporary accommodation while the review is being carried out.

10.21 There is no right to request a review of a decision reached on review.

10.22 Each local authority will wish to consider the most suitable review procedure for its circumstances, but it should incorporate the following features:

• it should be as speedy as is consistent with a full and fair hearing of the case, bearing in mind that an applicant will often be in urgent need;
• the applicant should be fully informed of the points to be considered in the review, and given a reasonable period to prepare his or her case;
• information on the availability of independent advocacy in the area should be provided;
• the applicant should have the right to be accompanied by a friend, adviser or legal representative, and to have an interpreter if their first language is not English;
• people with, for example hearing or speech difficulties, mental health problems or learning disabilities may also need an intermediary;
• the applicant should be able to make verbal as well as written representations;
• suitable training should be given to those reviewing decisions who should be able to consider the merits of the case, and to substitute their own decision for the original one, or to carry out further investigations; as well as considering such matters as whether proper and unbiased procedures were followed, whether all relevant and no irrelevant factors were taken into account, and whether the decision was within the local authority's powers;
• sometimes those reviewing a decision may decide that, while the decision was correct, the case was handled insensitively, or no information, or inadequate information, was provided to the applicant, and that an apology should be offered to the applicant for these inadequacies;
• the written notification of the review decision should include full and clear explanations of the reasons behind the decision and set out clearly which parts of the original notification are, and are not, being changed; and
• arrangements should be in place for ensuring that the implications of review decisions for decisions on, or the handling of, future applications are drawn to the attention of homelessness officers and senior officers.

10.23 Local authorities should publicise the right to request a review and the procedures for the review ensuring these are available in accessible and easily understandable format.

10.24 It is important that an applicant is not disadvantaged by requesting a review and it would be expected in normal circumstances that a local authority should hold a property offered pending the outcome of the review. Ensuring that the review is carried out promptly will minimise the period where there may be any loss of rental income for the landlord.

10.25 Review notification letters should advise applicants of their right to go to the Scottish Public Services Ombudsman if they are dissatisfied with the way in which their application has been handled.

Judicial review

10.26 Applicants unhappy with a decision may seek judicial review. In a judicial review the court cannot substitute its own opinion for that of the decision makers. However, it can strike down a decision on the grounds that the decision maker has exceeded or abused their powers, or failed to perform the duty delegated or entrusted to them, or exhibited bias. The court's decision may affect the particular case only, but it may also have wider implications for the local authority's policies and procedures. For example, it may call into question the legality of a current policy being applied, or indicate shortcomings in the local authority's procedures.

Checklist for decision letter

10.27 The following is a simple checklist of the minimum basic information a model decision letter should contain. It is not exhaustive and depending on the applicant's circumstances and the decision reached, additional or alternative information might also be necessary.

Have you:

• Set out clearly your decision as to whether or not the applicant is
  • Homeless?
  • Intentionally homeless?
• Set out whether or not you have investigated local connection and if so whether or not you intend to refer the applicant to another authority?
• Provided clear reasons for your decision including matters which you took into account?
• Explained what happens next and any actions that the applicant is required to take?
• Informed the applicant of their right to request a review of your decision, including review of the accommodation offered?
• Set out clearly the procedures for review including likely timescales?
• Provided details of where the applicant can access further advice or information, including independent sources in the area?
• Provided full contact details for the applicant to use if they wish to discuss anything in your letter?
• Checked that the letter is in a form which is accessible and understandable to the applicant?