Homelessness: code of guidance

Annex B: Summary of Legislative Changes

The Housing (Scotland) Act 1987, as amended, sets out the powers and duties of local authorities in dealing with applications from people seeking help on the grounds that they are homeless or threatened with homelessness. Since the 1987 Act, there have been a number of changes to legislation, some of which are described below.

The Housing (Scotland) Act 2001 established the right to review a homelessness decision, and introduced a duty on registered social landlords (RSLs) to assist local authorities in rehousing homeless people.

• Section 1 requires local authorities to assess the levels of homelessness in their area and produce homelessness strategies.
• Section 2 requires local authorities to provide information and advice about homelessness free of charge. See link below to regulation and guidance at Chapter 9 of this Code.
• 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 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 - The Homeless Persons (Provision of Non-permanent Accommodation) (Scotland) Regulations 2010 set out the circumstances in which this can be done.
  • 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.
  • 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 RSLs 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.
• 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.

The Homeless Persons Advice and Assistance (Scotland) Regulations 2002 prescribe the types of advice and assistance that local authorities must provide under Section 31(3)(b) and 32(3) of the Housing (Scotland) Act 1987 to homeless applicants and applicants threatened with homelessness.

The Homelessness etc. (Scotland) Act 2003 amended the Housing (Scotland) Act 1987 and the Housing (Scotland) Act 2001 and primarily affects how local authorities carry out their homelessness functions, strengthening people's rights to support when they are facing homelessness. The 2003 Act also improved the housing rights of people experiencing domestic abuse and provided a mechanism for the abolition of priority need.

• Section 1 was omitted by virtue of The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 (see below).
• Section 2 gives Ministers the power to specify a time from which priority need is to abolished. Priority need was subsequently abolished by virtue of The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 - see below.
• 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. Priority need was subsequently abolished by virtue of The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 (see below).
• Section 4 gives local authorities a discretionary power, rather than the current duty, to investigate whether a household is intentionally homeless. This section came into force on 7 November 2019 by virtue of The Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019 (see below).
• Section 5 and Section 6 were omitted by virtue of The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 (see below).
• Section 7 provides that accommodation provided for asylum seekers under the Immigration and Asylum Act 1999 does not constitute accommodation of the applicants' own choice so does not establish a local connection.
• Section 8 This section gives Scottish Ministers the power by statutory order to restrict the operation of section 33 of that 1987 Act, which allows referral of a homeless applicant to another local authority in certain circumstances. It allows Ministers to prescribe that the power of a local authority to refer an applicant to another authority is not to be exercisable by, or in relation to, such local authorities as are specified in an order. This section was commenced on 7 November 2019 by virtue of The Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019 (see below). Ministers must consult on and make a statement within 12 months of commencement, setting out the circumstances in which, and the criteria by reference to which, the power is to be exercised.
• Section 9 gives Ministers the powers to specify accommodation that is not suitable as interim accommodation. The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 specifies unsuitable temporary accommodation and the exceptional circumstances in which it may be used.
• 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.
• Section 11 requires landlords and mortgage lenders to notify the relevant local authority when they raise repossession proceeding.
• Section 12 requires that sheriffs should consider reasonableness in repossession proceedings where rent arrears are due to a delay or failure in Housing Benefit.

The Homeless Persons (Provision of Non-permanent Accommodation) (Scotland) Regulations 2010 prescribe the circumstances in which local authorities can provide non-permanent accommodation to homeless applicants who otherwise would be entitled to permanent accommodation in terms of Section 31 of the Housing (Scotland) Act 1987. It sets out two sets of prescribed circumstances. The first is where an applicant for housing or a person living with the applicant requires housing support services which it is not appropriate to provide within permanent accommodation. The second is where a short assured tenancy can be made available to the applicant, and various conditions in respect of the tenancy and the applicant are fulfilled.

Housing Scotland Act 2010 established the Scottish Housing Regulator as an independent body and made provision about housing, including about the performance and regulation of social landlords and reforms of the right to buy social housing. It also introduced a duty on local authorities to conduct a housing support assessment for applicants who are unintentionally homeless or threatened with homelessness and who they have 'reason to believe' need housing support services as prescribed in the following regulations:

The Housing Support Services (Homelessness)(Scotland) Regulations 2012 make provision in relation to the duty of Local Authorities to assess whether some persons found to be unintentionally homeless or threatened with homelessness need housing support services (see paragraph 8.91 of this Code for details.)

The Homelessness (Abolition of Priority Need Test) (Scotland) Order 2012 abolished the priority need test for homeless households. As a result, from 31st December 2012, all unintentionally homeless households are now entitled to settled accommodation.

The Public Bodies (Joint Working) (Scotland) Act 2014 established a legal framework for the integration of health and social care services in Scotland. The Act requires each Health Board and local authority to delegate some of their statutory functions, and associated budgets, to their Integration Authority. The Integration Authority is then responsible for the planning and delivery of the related services. The provision of equipment and adaptations are services that must be delegated to the Integration Authority.

The Act also introduced national health and wellbeing outcomes that apply equally across health and social care services in Scotland. These outcomes aim to enable service users and carers to have a clear understanding of what they can expect in terms of improvements in their health and wellbeing.

Outcome 2: People, including those with disabilities, long-term conditions, or who are frail, are able to live, as far as reasonably practicable, independently and at home or in a homely setting in their community.

Outcome 5: Health and social care services contribute to reducing health inequalities.

The Act is supported by a set of regulations that prescribe the housing-related functions that must be delegated by a Local Authority. In addition the regulations set out where Local Authority housing-related functions may be delegated subject to local agreement.

Homelessness services fall into the range of functions that may be delegated to the Integration Authority. Full advice is available in the Housing Advice Note which is statutory guidance to Integration Authorities, Health Boards and Local Authorities issued under the Act.

The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 revoked The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004 and prescribes accommodation which may not be used to fulfil the duty on local authorities to provide interim accommodation under Section 29(1) of the Housing (Scotland) Act 1987 in relation to applicants who are pregnant, or whose household includes either a pregnant woman or children. Article 7 of the 2014 Order provides two particular circumstances where such accommodation may be used and this was time limited to 14 days. The time limit in Article 7 was amended to 7 days for families with children or pregnant women by virtue of The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017 (see below). See Chapter 8 and Annex A of this Code for further guidance.

Private Housing (Tenancies) (Scotland) Act 2016 introduced a new type of tenancy for the private rented sector in Scotland to replace the short assured tenancy and assured tenancy for all future lets. In the Act, this new type of tenancy is called the private residential tenancy.

The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2017 - for families with children or pregnant women, amends the time limit in article 7 of the 2014 Order from 14 days to 7 days. The aim is to minimise the amount of time families with pregnant women and children should spend in bed and breakfast accommodation, and reduce the time to a maximum of 7 days, unless there are exceptional circumstances. See Chapter 8 of this Code for further guidance.

The Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019, which commenced on 7 November 2019, brings into force sections 4 and 8 of the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act")

• Commencing the provisions in Section 4 changes the duty in Section 28(2) of the Housing (Scotland) Act 1987 ("the 1987 Act") for local authorities to investigate whether a person applying to them for accommodation became homeless or threatened with homelessness intentionally to a power. This gives local authorities the discretion to investigate for intentionality (see Chapter 6 of this Code for guidance on inquiries into intentionality.)
• Commencing the provisions in Section 8 allows Scottish Ministers by order made by statutory instrument to modify the operation of Section 33 of the 1987 Act, which allows local connection referral of a homeless applicant to another local authority in certain circumstances. Within 12 months of commencing the Section 8 provisions, Scottish Ministers must publish a statement setting out the general criteria by reference to which modifications would take place, and are obliged to consult before making or modifying this statement. Following the Ministerial Statement, the statutory instrument to introduce any changes would be brought to the Scottish Parliament (see paragraph 7.22 of this Code for further details and Chapter 7 for guidance, more generally, on inquiries into local connection.)