Homelessness: code of guidance

Chapter 6: Inquiries into Intentionality

6.1 Summary - this chapter sets out guidance on how a local authority may inquire into intentionality, and provides guidance on different criteria for deciding intentionality.

6.2 The commencement of Section 4 of the Homelessness etc. (Scotland) Act 2003 (on 7 November 2019), following a recommendation from the Homelessness and Rough Sleeping Action Group (HARSAG), provides for changes to the intentionality regime under the Housing (Scotland) Act 1987. These are:

• change from a duty for local authorities to investigate intentionality to a power for local authorities, if they think fit, to investigate; and
• a consequential change so that the local authority is not under a duty to notify the applicant of their findings as to intentionality where they have not carried out an investigation.

6.3 While most applicants are unintentionally homeless, local authorities have the discretionary power to consider, if they think fit, the intentionality criteria to distinguish between the case of a person who has become homeless through no fault of their own, and the case of a person, who through deliberate action or inaction, has contributed to their homelessness. This enables local authorities to take a person-centred approach and apply discretion on a case by case basis for each applicant(s), based on the merits of their individual application. Whether or not someone is found to be intentionally homeless the local authority should seek to find solutions to the person's homelessness and offer support to address any difficulties that they face.

6.4 Where an applicant has been found to be homeless, or threatened with homelessness, the local authority may choose, if they think fit, to then assess whether the applicant became homeless or threatened with homelessness intentionally. Intentionality depends on the applicant having acted, or failed to act, deliberately, and being aware of all the relevant facts. A person is not intentionally homeless if it would not have been reasonable for them to continue to occupy their previous accommodation (see Chapter 5 of this Code).

6.5 Local authorities should have regard to all the circumstances of an applicant before considering whether to investigate for or reaching a decision on intentionality, and each case should be decided on its merits. Even if the local authority is satisfied that the homelessness was intentional, the applicant is still entitled to receive temporary accommodation, and advice and assistance from the local authority (see Chapter 9 of this Code). The local authority may also have continuing duties to children and young people under the terms of the Children (Scotland) Act 1995.

6.6 The circumstances in which a person may be regarded as having become intentionally homeless or threatened with homelessness are set out in Section 26 of the 1987 Act. There are three requirements - all of which must be satisfied.

• the applicant, if homeless, must deliberately have done, or failed to do, something in consequence of which they have ceased to occupy accommodation which was at the time available to them. To be intentionally threatened with homelessness, an applicant must deliberately have done or failed to do something the likely result of which was that they will be compelled to leave accommodation (Section 26(2)).
• it must have been reasonable for the applicant to have continued to occupy the accommodation. The local authority may have regard to the general circumstances prevailing in relation to its area in applying this test (Section 26 (4)).
• the applicant must have been aware of all the relevant facts before taking or failing to take the deliberate actions referred to above. An act or omission in good faith on the part of a person unaware of any relevant fact is not to be regarded as deliberate.

6.7 Homelessness officers must consider all the circumstances of an applicant before coming to a decision on intentionality. They should not simply apply standard criteria.

6.8 It is for the local authority to satisfy itself whether an applicant became homeless or threatened with homelessness intentionally. There is no onus on the applicant to satisfy the local authority that they did not become homeless intentionally.

Criteria for determining intentionality

6.9 The following points are relevant in determining whether an act or omission was deliberate.

• An applicant must have deliberately done or failed to do something which resulted in homelessness or threatened homelessness. They would not be intentionally homeless if they had not agreed to the action or omission leading to homelessness. For example, if an applicant's partner has failed to pay rent, or defaulted on loan or mortgage repayments, or given up a tenancy, without the knowledge of the applicant, the applicant cannot be held to be intentionally homeless. Similarly, the applicant would not normally be intentionally homeless if they were aware of their partner's actions, but took reasonable steps to prevent it. Legally, any responsibility to find a home for the applicant remains even if the partner whose acts or omissions were responsible for the homelessness in the first place remains in the household, and so will benefit from the local authority's discharge of that responsibility.
• The person concerned should have acted or failed to act in a way which that person knew could result in homelessness. So, for example, a person with mental health issues, or someone with learning disabilities, may well have been unlikely to have acted deliberately, and so should not be treated as intentionally homeless. Similarly, where a person has been evicted for anti-social behaviour local authorities should take account of contributory factors including the effects of any mental health issues or learning disability (see paragraphs 2.67 onwards in Chapter 2 for more guidance on anti-social behaviour and homelessness). Even if the applicant seems to be homeless only because of their financial (or other) imprudence or lack of foresight, it should not be automatically decided that the homelessness was intentional.

6.10 Other factors relating to an applicant that an authority may wish to take into account are youth; inexperience; education; or health (including whether or not there is a history of substance abuse).

6.11 This list of relevant factors is not intended to be exhaustive, and local authorities must consider all the circumstances of each case, not just single factors.

Leaving temporary accommodation

6.12 In general, a person who has to leave temporary accommodation because their right to live there has expired, should not be regarded as being intentionally homeless. However, if a person gave up permanent accommodation, the circumstances which led the person to leave the permanent accommodation will determine whether homelessness was intentional. For instance, a person who gave up permanent accommodation for an extended holiday with the expectation of subsequently applying as homeless might be regarded as intentionally homeless; while someone who moved to obtain employment in the belief that permanent accommodation would be available, but who was made redundant, might not.

6.13 A person experiencing homelessness who leaves temporary accommodation provided pending discharge of a permanent accommodation duty should not be considered to have become intentionally homeless. Under Section 32A(2) of the 1987 Act a person may not be found intentionally homeless from interim accommodation.

Financial difficulties

6.14 A person who chooses to sell their home, or who has lost it because of wilful and persistent refusal to pay rent; or who has shown such disregard of advice as to amount to neglect of their affairs; may well be regarded as having become homeless intentionally. If, however, a person's house was sold because they could not keep up the loan repayments, or they got into rent arrears because of real personal or financial difficulties (for example, if they have become unemployed, or are working part time, or have reduced income following death of a partner or relationship breakdown), their acts or omissions should not be regarded as having been deliberate. A person should not be regarded as intentionally homeless if they were unable to obtain accommodation because of the loss of a rent deposit which was not due to a deliberate act or omission on their part, nor should a lost deposit be regarded as rent arrears.

6.15 There is no absolute test of whether someone is in real financial difficulties - as distinct from the reasons for such difficulties. However, areas that should be considered include whether, if they continued to pay the housing costs, the amount of disposable income left would be equal to or less than the amount which someone reliant entirely on benefit would be entitled to receive in income support.

6.16 Account would need to be taken in applying this test of other necessary costs incurred by the applicant, for example care costs, and benefit or other income available to meet them. (It would also be relevant if the rent paid was excessive.) Second mortgage costs related to legitimate housing costs should be taken into account as should the fact that housing debt is likely to be only one part of a multiple debt problem and other creditors may also have a claim on someone's income.

6.17 No distinction should be made between public and private sector tenants, or between the local authority's own tenants and other public sector tenants. Regardless of whether the applicant is intentionally homeless, if they have become homeless because of financial problems, it is good practice to consider whether the applicant could benefit from debt counselling or other advice.

Rent arrears

6.18 It should not be assumed automatically that an applicant is intentionally homeless where they have lost their accommodation because of rent or mortgage arrears. Reasons should be fully explored and decisions made as to whether arrears resulted from deliberate acts or omissions.

Young people

6.19 Tenancies that are not sustained are a common occurrence for young people when they first leave home, especially if they have not had much in the way of support to sustain a tenancy. Local authorities should consider the position sensitively and only make a finding of intentionality where there is compelling evidence that the applicant deliberately refused to accept advice or engage with agencies who could provide support and were aware of the consequences of their actions.

6.20 A young person who has a clash of lifestyle with their parents should not automatically be considered intentionally homeless and equal weight should be given to both the young person's views and the views of the parents.

Tied accommodation

6.21 A person who becomes homeless or threatened with homelessness as a result of losing tied accommodation including loss of accommodation on retirement, should not normally be considered as intentionally homeless. Neither should a local authority expect a person to continue in employment, if it would be unreasonable for them to remain in the job simply in order to keep the accommodation, or if the circumstances would have given them grounds for claiming constructive dismissal.

6.22 Local authorities should encourage tied tenants who know that they will have to leave a tied tenancy some time in advance, for example on retirement, to seek advice from the local authority or other sources on the housing options open to them, to minimise the chances of their becoming homeless when the tenancy ends.

Special cases

6.23 Someone who has left home because of domestic abuse should never be regarded as having become homeless intentionally. Similar rules should be applied to those who leave because of external violence or threats, for example racial attacks or anti-social neighbours.

6.24 An applicant who has not exercised their occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and the Civil Partnership Act 2004, should not be regarded as intentionally homeless for that reason, regardless of why those rights were not exercised. In relevant cases, advice should be made available to applicants on what their rights are under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Civil Partnership Act 2004, and how they can enforce these rights if they wish.

Period for which intentionality lasts

6.25 If a local authority decides that a person became homeless intentionally, the person should not be considered to be intentionally homeless for all time; nor should a fixed period of disqualification be applied.

6.26 If a further application is made then that application should be considered on its merits. If there is reason to believe that there has been a change of circumstance, for example if through support the behaviour of a person evicted for anti-social behaviour has improved, or if some genuine efforts are being made to reduce rent arrears, then there may well be sufficient grounds to merit a review of the earlier decision, taking into account the altered circumstances. Applicants should be given a clear indication of what change of circumstances would allow them to apply again or have their case reconsidered.

Monitoring and Review

6.27 The Scottish Government will monitor the impact of the new discretionary power to investigate intentionality, provided for in Section 4 of the Homelessness etc. (Scotland) Act 2003, using the current homelessness applications data which is published twice a year (in January and June). We will also commence a review of local authorities' implementation of the new discretionary approach after 12 months and will report on the outcome by July 2021.

Future changes under consideration

6.28 HARSAG also recommended narrowing the definition of intentionality to focus on instances of 'deliberate manipulation' of the homelessness system where the applicant actually foresees that their actions would lead to them becoming homeless. The Scottish Government will work with our lawyers and stakeholders in 2020 to explore the most effective way of changing this focus and to develop options. We will update the Code of Guidance to reflect any future changes.