Homelessness: code of guidance

Chapter 1: Introduction

1.1 The purpose of this Code is to help guide local authorities in their duties to assist people who are threatened with or who are experiencing homelessness. The Code also reflects best working practice in areas such as cooperation with other parts of local and national government, and other agencies.

1.2 This Code of Guidance replaces the previous version published in 2005 and has been updated with the intention of accurately reflecting legislative changes since then, notably through the commencement of provisions in the Homelessness etc. (Scotland) Act 2003. Annex B summaries the relevant legislative changes. We intend to convene a Governance group made up of Scottish Government, local authorities and other interested parties to consider a more thorough overhaul of the Code, which we would aim to issue in 2021.

Scope of guidance

1.3 The Housing (Scotland) Act 1987 ("the 1987 Act"), 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.

1.4 Section 37(1) requires local authorities to have regard to Guidance issued by Scottish Ministers in the exercise of their homelessness functions. This Code provides such guidance. While local authorities have discretion to deal with each application on its merits in making decisions under the 1987 Act, failure to have regard to the terms of the guidance may give grounds for judicial review of a local authority's decision. Local authorities have a statutory responsibility to prevent and alleviate homelessness. The Code should be used as a supporting document for local authority staff in carrying out relevant activities and discharging this responsibility, and should be seen as a repository of guidance and best practice to cover different scenarios.

1.5 The Code sets out a summary of legislative duties with supporting explanation and guidance. It is principally intended for local authority staff dealing with homelessness policy and responsible for making decisions on homelessness applications. It should be emphasised, however, that a local authority's duties towards a person experiencing homelessness are corporate in nature and not solely the responsibility of the department dealing with housing. This corporate approach is a key feature of local homelessness strategies (see paragraph 2.2).

1.6 The Code is also relevant to other agencies and individuals, including Registered Social Landlords (RSLs), elected council members and other council officials as well as to a range of others involved in tackling homelessness in the statutory and voluntary sectors.

Scottish Government Policy

1.7 On 27 November 2018, the Scottish Government and COSLA jointly published a five year Ending Homelessness Together Action Plan^[1] which sets the direction for lasting change in homelessness policy and practice. Delivery of the Action Plan will be led and overseen by the Homelessness Prevention Strategy Group which is jointly chaired by political leadership from Scottish Government and COSLA. The Plan outlines out how national and local Government, with third sector partners, are working to prevent homelessness in the first place and address people's needs quickly when homelessness does happen. It is backed by a £50 million Ending Homelessness Together Fund to support change on the ground so that people get the right help at the right time.

1.8 The Action Plan responds to 70 recommendations made by the Homelessness and Rough Sleeping Action Group^[2], set up by the Scottish Government in 2017, and a report^[3] by the Scottish Parliament's Local Government and Communities Committee. People with lived experience were asked about their priorities and the Action Plan's person-centred approach builds on their request for services to respond urgently and flexibly to people's individual housing and support needs.

1.9 Prevention remains a top priority going forward. Homelessness is a result of a wide range of societal issues and whole system effort and change is needed to stop it happening. We need partners across all services including housing, health, education, social work and justice to recognise and act when the people they work with are at risk of becoming homeless.

1.10 At the same time, we recognise that even with a robust preventative approach, there will still be occasions where someone becomes homeless. In those circumstances the Action Plan sets out how people will be rehoused more quickly and provided with the support they need to move into a settled home. To help meet this aim, all local authorities have developed Rapid Rehousing Transition Plans setting out how they will achieve this transformation over the next 5 years.

National Performance Framework

1.11 In 2018, the Scottish Government and COSLA agreed a completely revised National Performance Framework^[4] which was developed together with the people of Scotland to reflect our values as a nation and the aspirations we hold for our future.

1.12 Central to the National Performance Framework, and the delivery of this Action Plan, is the fundamental value that we are a society which treats all our people with kindness, dignity and compassion. Ensuring everyone has a safe, warm, secure home is a key part of making sure that value is central to our society.

1.13 Achieving our ambitions of ending homelessness will support, and be supported by, all of these important outcomes which is why they provide the basis for the Ending Homelessness Together vision which underpins this plan.

Regulation and inspection

1.14 The Scottish Housing Regulator^[5] (the Regulator) was established on 1 April 2011 under the Housing (Scotland) Act 2010. The Regulator is an independent regulator with one statutory objective of safeguarding and promoting the interests of current and future tenants of social landlords, people who are or may become homeless, and people who use housing services provided by RSLs and local authorities.

1.15 As required by Section 31 of the Housing (Scotland) Act 2010, the Scottish Ministers, in the Scottish Social Housing Charter^[6], set the standards and outcomes that all social landlords should be achieving when performing their housing activities. The Charter has seven sections covering: equalities; the customer/landlord relationship; housing quality and maintenance; neighbourhood and community; access to housing and support; getting good value from rents and service charges; and other customers. It contains a total of 16 outcomes and standards that social landlords should be achieving.

1.16 The Charter helps to improve the quality and value of the services that social landlords provide, and supports the Scottish Government's long-term aim of creating a safer and stronger Scotland. The Regulator is responsible for reporting on landlords' performance against the Charter. Its statutory functions are to monitor, assess, report on (and, where appropriate, to make regulatory interventions) relating to social landlords' performance of housing activities. As part of its Regulatory Framework, social landlords are required to provide the Regulator with an Annual Assurance Statement confirming whether they are complying with Regulatory Standards and requirements, including statutory duties to prevent and alleviate homelessness. The Regulator's reports also help to ensure that public investment in new social housing goes only to landlords assessed by the Scottish Government as performing well.

1.17 Under the Public Services Reform (Scotland) Act 2010, the Care Inspectorate has the power to register, scrutinise and inspect care services. This includes housing support services - where support, assistance, advice or counselling is provided to a person who has particular needs.

1.18 Housing support can help people to live as independently as possible in the community. These services can be provided in individuals' homes, or in temporary accommodation such as hostels for homeless people. These services can be provided by local authorities, housing associations and voluntary sector organisations.

1.19 The Care Inspectorate's quality frameworks for inspection are being reviewed and updated to take account of the Health and Social Care Standards.

1.20 From 1 April 2018, the 'Health and Social Care Standards - my support, my life'^[7] have replaced the National Care Standards. These seek to promote and improve outcomes for people who experience care. Registered services should now be providing support in accordance with the headline standards. These are:

• I experience high quality care and support that is right for me
• I am fully involved in all decisions about my care and support
• I have confidence in the people who support and care for me
• I have confidence in the organisation providing my care and support
• I experience a high quality environment if the organisation provides the premises

1.21 As of 31 March 2019, there were 1,058 registered Housing Support services in Scotland. The majority of services are graded across all of the Care Inspectorate quality themes as 'good' or better.

A human rights approach

1.22 A Human Rights approach means putting the rights and interest of people at the centre of policies. The approach empowers people to claim their rights and encourages policy makers and service providers to meet their obligations. For example, within the context of healthcare services, the goal of a human rights approach is that all health policies, strategies and programmes are designed with the objective of progressively improving the enjoyment of all people to the right to the highest attainable standard of physical and mental health (International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12).

According to the Council of Europe:

"A Human Rights approach [understanding human rights and integrating them in your policy-making] allows government to better solve current and prevent future problems. Acting now is always cheaper than responding to the consequences of problems."

The PANEL principles (Participation, Accountability, Non-Discrimination, Empowerment, Legality), endorsed by the Scottish Human Rights Commission and the United Nations, are a useful framework to ensure good governance and explain a human rights approach in practice.

Participation - people being involved in decisions that affect their rights

Accountability - monitoring of how rights are being affected and remedies for when things go wrong

Non-discrimination - people who face the biggest barriers to realising their rights should be prioritised and all forms of discrimination eliminated.

Empowerment - everyone should understand their rights and be fully supported to participate and claim their rights

Legality - adherence to domestic and international laws

International Human Rights Context

1.23 The Scottish Government and other public bodies in Scotland have an obligation to protect, respect and fulfil the rights set out in human rights treaties. The UK has ratified seven core United Nations human rights treaties and seven Council of Europe human rights treaties. These include the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11 of which states that everybody has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing.

1.24 The UN Committee on Economic, Social and Cultural Rights, which monitors implementation of ICESCR, has issued guidance, which specifies the adequacy of housing in order to fulfil the right:

• legal security of tenure
• availability of services, materials, facilities and infrastructure (i.e. natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services)
• affordability
• habitability
• accessibility (i.e. full and sustainable access to adequate housing resources for disadvantaged groups with appropriate prioritisation to them; including access to land as an entitlement)
• location (i.e. access to employment options, health‑care services, schools, childcare centres and other social facilities; and not in immediate proximity to sources of pollution)
• cultural adequacy

The future

1.25 As mentioned at paragraph 1.2 above, the Scottish Government intends to convene a Governance group made up of Scottish Government, local authority and other interested parties to consider a more thorough overhaul of the Code. We would aim to issue this fuller update in 2021 alongside details of a clear process for future updating of the Code.

Definitions

1.26 Throughout the Code,

"the 1987 Act" means the Housing (Scotland) Act 1987 as amended;

"the 1995 Act" means the Children (Scotland) Act 1995;

"the 2001 Act" means the Housing (Scotland) Act 2001;

"the 2003 Act" means the Homelessness etc. (Scotland) Act 2003;

"the 2010 Act" means the Housing (Scotland) Act 2010.