Homelessness: code of guidance

Chapter 5: Inquiries into Homelessness

5.1 Summary - this chapter gives guidance on the inquiries a local authority should make into homelessness. It includes guidance on issues of definition such as what is meant by "homelessness" and the broad definition of "family" under the legislation, what is meant by normally or reasonably residing with an applicant, and when it is not reasonable for an applicant to continue to occupy a house.

5.2 Local authorities should bear in mind throughout their inquiries that they should take action where appropriate to prevent homelessness occurring and to meet the broader needs of the applicant.

5.3 Someone is homeless under Section 24 of the 1987 Act if he or she has no accommodation in the United Kingdom or elsewhere which he or she (together with any person who normally resides with the applicant as a family member, or in circumstances in which the local authority considers it reasonable for that person to reside with the applicant) is entitled or permitted to occupy in one of the following ways:

• is entitled to occupy by virtue of an interest in it (for example as an owner or tenant) or by virtue of a court order;
• has a right or permission, or an implied right or permission, to occupy (for example as a lodger or an employee with a service occupancy); or
• currently occupies as a residence by virtue of some protection given by law. The person may have a positive right to occupy the accommodation, or may be protected only by a restriction on another person's right to repossess the accommodation.

5.4 When investigating whether accommodation is available outside the UK for the applicant, local authorities should be sensitive in the manner in which they approach the applicant. Staff should be aware of potential cultural sensitivities or language barriers during such investigations. Given the difficulty in ascertaining whether accommodation outside the UK is available, if evidence is not readily available, it should be assumed that the applicant does not have access to accommodation elsewhere. If the authority considers that there is accommodation available for the applicant then that accommodation is subject to the same tests as accommodation in the UK: it must be reasonable to occupy.

Family membership

5.5 Local authorities should be aware of the complex family structures that exist for example stepfamilies, foster relationships, and other established relationships.

5.6 Under Section 83 of the 1987 Act, as amended, someone is a member of another person's family if:

a) they are the spouse of that person or they and that person live together as spouses;

b) they are that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.

For the purpose of (b)

• a relationship by marriage shall be treated as a relationship by blood;
• a relationship of the half-blood shall be treated as a relationship of the whole blood;
• the stepchild of a person shall be treated as their child;
• a person brought up or treated by another person as if the person were the child of the other person shall be treated as that person's child; and
• a child shall be treated as such whether or not their parents are married.

Residing with applicant

5.7 People other than family members who might be regarded as reasonably residing with the applicant might include dependent foster children living with their foster carers; formal or informal carers including people residing with the family to help care for dependent children, or other companions. Households which are split up for no other reason than that they have nowhere to live together should be regarded as one household.

5.8 Following a relationship breakdown, particular care should be taken in assessing with whom a child should be treated as living. In reaching its decision, a local authority should take account of any residence and contact orders (if any) made by the courts. However, it should be noted that the "no order" principle in the Children (Scotland) Act 1995 states that children should not be subjected to legal proceedings when voluntary living arrangements suffice. An authority should not insist, therefore, that an applicant seeks a formal court order as evidence of the arrangements which may have been agreed informally.

5.9 Orders or other voluntary arrangements may provide for alternating residence with each parent, in which case the period spent with each parent or guardian is relevant. Sometimes children who would normally reside with an applicant are being looked after by a local authority for reasons, for example abuse by a parent, which would make it unreasonable for them to stay with the applicant.

When is it not reasonable for an applicant to continue to occupy a house?

5.10 Sections 24(2A) and (2B) of the 1987 Act provide that a person is to be treated as homeless even if he or she has accommodation, if it would not be reasonable for the person to continue to occupy it. What is "reasonable" is a matter for judgement and will depend in some cases on the personal circumstances of the applicant - for example what might be reasonable for adults may not be for a household containing children, and mainstream housing may not be suitable for someone with physical impairments. This last point may apply even more to caravans and mobile homes.

5.11 Under Section 24(2B) a local authority may have regard to the general circumstances prevailing in relation to housing in the local authority's area, in determining whether it is reasonable for a person to continue to occupy accommodation. Different tests of "reasonableness" should not be applied to different categories of applicant, applications from private tenants should be dealt with on the same basis as those from tenants of local authorities or RSLs.

5.12 Examples of how the 'unreasonable to occupy' test might be applied are given below.

• The accommodation is below the tolerable standard, as defined in Section 86 of the 1987 Act. However, the fact that accommodation fails to meet the tolerable standard does not necessarily mean that a person cannot reasonably occupy it. Whether it is reasonable for a person to occupy accommodation below the tolerable standard will depend on the reason, or reasons, for failure to meet the tolerable standard and subsequent actions of the local authority (the local authority has a duty to close, demolish or improve the property under section 85 of the Act). It will further depend on the severity and expected duration of the problem, or the degree to which the particular individual or family concerned suffers serious inconvenience or a threat to health. Information about the severity of the problem may be available from environmental health officers.
• The applicant is living in bed and breakfast accommodation, which is not overcrowded within the meaning of Part VII of the 1987 Act. Bed and breakfast accommodation should be used only as a last resort in the absence of other options, particularly for households with vulnerable people. In fulfilment of their duties under Section 29 of the 1987 Act, local authorities cannot place households with children and pregnant women into unsuitable accommodation unless exceptional circumstances apply, where both unsuitable accommodation and exceptional circumstances are defined in the relevant legislation (the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014). See paragraphs 8.7- 8.26 of this Code for more information.
• The applicant is living in a hostel or other accommodation such as a women's refuge, which is not intended to provide long-stay accommodation. Often there will be a fixed limit to the time a person can stay. The same general point applies to caravans and mobile homes without a permanent or long-term site.

There is external violence, including racial or other harassment (not necessarily from someone who resides or has resided in the house). Local authorities should respond sympathetically to applications from people who are in fear of external violence. The absence of previous violence does not prove that these fears are unjustified (see Chapter 4, Handling Applications). Even if an applicant has obtained an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 guaranteeing his or her occupancy rights, or an interdict against abuse by a former partner, this may not always be sufficient to make it reasonable to expect him or her to continue to occupy the house.

• Continued occupation of the accommodation poses a substantial risk to a person's health, which could include their mental health.
• The accommodation is impracticable for a particular applicant because of his or her physical infirmities or disabilities.

5.13 It must be emphasised that these are examples. It is not possible to give a comprehensive list, and sympathetic judgement must always be exercised.

Who else is homeless under the Act?

5.14 Section 24(3) of the 1987 Act defines as homeless someone who has accommodation but cannot use it for one of the reasons listed below.

• They cannot secure entry to it (Section 24(3)(a)). This includes those who have a legal entitlement to accommodation to which they are unable to secure entry - such as unlawfully evicted tenants or occupiers who for some practical reason cannot immediately be restored to occupation of their homes.
• An attempt to continue living in the accommodation would be likely to be met with violence or threats of violence likely to be carried out from someone else living in it, or from someone who previously lived with the applicant, whether in their present accommodation or somewhere else (sections 24(3)(b) and (bb)).
• They have a mobile home, caravan, houseboat or other moveable structure but have no place where they are entitled or permitted both to put it or moor it and to live in it, (Section 24(3)(c)). For example; temporary mooring for holiday use would not be sufficient. Naturally, a person would be homeless if evicted from the mobile accommodation itself.

This provision has particular relevance to Gypsy/Travellers, who should be considered for housing under the homelessness legislation, if they wish it, on the same basis as anyone else. However, while some Gypsy/Travellers want to settle in houses, conventional housing will not meet the needs of those who want to live in a caravan in order to maintain their traditional way of life. Gypsy/Travellers who move into a house for lack of any alternative may find it difficult to settle, and for them the most satisfactory solution may be a place on a local authority site for Gypsy/Travellers. Where a pitch is not available on a local authority site, the local authority may wish to consult private interests to see if a site can be found. Chapter 10 of the 'Local Housing Strategy: Guidance 2019' provides information for local authorities on the needs of Gypsy/Travellers^[33].

• The accommodation is both overcrowded within the meaning of Section 135 of the Act and may endanger health, (Section 24(3)(d)). Both overcrowding and a danger to health must be present. Overcrowding standards are set out in sections 136 and 137 of the Act: if either of the standards (the room standard or the space standard, respectively) is contravened, there is overcrowding.

Homelessness officers should be familiar with the overcrowding legislation and able to apply it. A strict application of these standards may require an inspection of the accommodation, and perhaps measurement of the size of the rooms. In practice, and certainly always if there are reasons to suppose the application is urgent, the local authority should consider taking any interim action that is necessary, such as the provision of temporary accommodation. There are no legislative standards for danger to health, and the local authority should consider such factors as the effect of dampness or condensation on respiratory disease suffered by occupants. It should also include the possibility of danger to mental health. Even if there is no statutory overcrowding, local authorities must consider whether it is unreasonable to occupy the accommodation. Further information on overcrowding can be found in Section 5.2 of the "Social Housing Allocations in Scotland - a practice guide."^[34]

• It is not permanent accommodation, in circumstances where, immediately before the commencement of their occupation of it, a local authority had a duty under Section 31(2) in relation to them.

This ensures that people who are owed a duty under Section 31(2) are to be treated as being homeless if they are provided with accommodation which is not permanent accommodation. This means that a local authority's duty under Section 31(2) continues until permanent accommodation is secured. Permanent accommodation is defined in broad terms to acknowledge a range of situations which could reasonably be considered to be permanent accommodation and, therefore, end the local authority's duty under Section 31(2). See paragraphs 8.38 - 8.39 of this Code for more detail on the definition of permanent accommodation.

Is the applicant threatened with homelessness?

5.15 A person is defined in the 1987 Act as being threatened with homelessness if they are likely to become homeless (as defined above) within two months. Local authorities should bear in mind that the earlier that action is taken, the greater the likelihood that measures to avert homelessness will be effective. Local authorities should therefore not wait until homelessness has actually occurred before providing assistance.