Homelessness: code of guidance

Chapter 7: Inquiries into Local Connection

7.1 Summary - this chapter defines "local connection" and sets out local authorities' powers with respect to applicants who are deemed not to have a local connection.

7.2 In looking to provide sustainable housing solutions for applicants it will generally be best for an application to be dealt with by the local authority to which it is made. Most homeless people apply to their local authority for assistance and those who apply elsewhere generally have a good reason for doing so. This chapter sets out guidance on the operation of the local connection provision in the 1987 Act.

Local authorities' powers concerning local connection

7.3 A local authority has a power, but not a duty, to refer an applicant to another local authority in Scotland, England and Wales if it thinks the applicant does not have a local connection with it and does have a local connection with another authority. In exercising its discretion a local authority should take particular care to operate in a non-discriminatory way.

7.4 Only applicants who are assessed as being unintentionally homeless may be referred to another authority (Section 33(1) of the 1987 Act).

7.5 The local authority which first receives the application must carry out the inquiries into homelessness and intentionality; and it will generally be necessary to pursue questions about local connection only if there is reason to suppose they will be relevant.

7.6 If the applicant, or any person who might reasonably be expected to reside with the applicant, has a local connection with the area of the local authority to which the application is made, then the duty to secure permanent accommodation will remain with that local authority. Even if a case is referred to another authority on local connection grounds, an applicant may be able to reapply to the original local authority if circumstances change, for example if he or she finds permanent employment in that local authority's area. A local authority which accepts a referral will be responsible for any further decisions or inquiries relating to that application. However the homelessness decision of the notifying authority cannot be revised by the authority accepting the referral.

7.7 If the applicant has no previous local connection anywhere in Scotland, England or Wales, the responsibility for dealing with the application rests with the local authority he or she applied to.

7.8 When an applicant does not have a local connection with the authority applied to, but does have a local connection with more than one other local authority, the local authority receiving the application should weigh up all the relevant factors in deciding which other local authority to refer the application to. Relevant factors should include the views of the applicant.

7.9 Where a local authority refers an application to another local authority on the basis of local connection the notifying authority is obliged, under Section 34, to secure that accommodation is available for the applicant's occupation until the outcome of the referral is decided. Local authorities should bear in mind the possibility that transitional arrangements may be required when this duty expires (where the conditions for referral are satisfied but the notified authority has not yet provided accommodation or where the conditions are not accepted and the notifying authority does not have permanent accommodation available).

Domestic abuse

7.10 An applicant cannot be referred to another local authority if there is a risk of domestic abuse, to either the applicant or anyone who might reasonably be expected to reside with them (Section 33(2)(c)) in that other local authority's area. The definition in the Protection from Abuse (Scotland) Act 2001 applies. This sets out that "abuse" includes violence, harassment, threatening conduct, and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress. A person is at risk of abuse if that person runs the risk of abuse from someone with whom they would otherwise reasonably be expected to reside, or with whom they formerly resided (see paragraph 4.37 onwards.)

Definition of local connection

7.11 Local connection is defined in Section 27(1) of the 1987 Act as a connection which a person has with an area:

• because he or she is or was in the past normally resident in it, and this residence was of his or her own choice; or
• because he or she is employed in it; or

7.12 Normal residence might be taken as residence for at least 6 months during the previous 12 months, or not less than 3 years during the previous 5 years. Periods of temporary residence of the applicant's own choice should be taken into account in this calculation.

7.13 If an applicant is a former asylum seeker and has been housed previously in Asylum Accommodation and Support Services Contract (AASC)^[35] accommodation, the applicant has not formed a local connection with the relevant Local Authority in which the accommodation is situated (Section 7 of the 2003 Act). This is because the applicant had no element of choice as to where the accommodation was provided. (A former asylum seeker may be subsequently eligible for assistance under the homelessness legislation if they have been granted leave to remain - see new guidance from COSLA^[36].)

• because of family associations; or

7.14 Family associations normally arise when an applicant or other member of the household has family members who have been resident in an area for at least 5 years. However, the residence of children in another local authority should not be taken into account where there are reasons, such as previous abuse for example, for not placing children with one or both of their parents, in which case their position may have to be considered separately. Applicants should not be referred to another local authority because of family associations if they object.

• because of any special circumstances

7.15 Special circumstances might include, for example, the need for continuing provision of education or health treatment for a household member in a particular local authority area; or where there is no current local connection with any area, that the applicant was brought up in an area or had lived there for a considerable time in the past. The latter consideration may be particularly relevant to persons who have lived abroad for some time. For those who have been serving in the armed forces, changes to the 1987 Act were introduced (through the 2010 Act) which enable members of the armed forces to establish a local connection through residence or employment in the same way as a civilian.

7.16 There is no bar to a local authority making arrangements for another local authority to take responsibility for an applicant household, if this accords with the wishes of the applicant. If an applicant who is threatened with homelessness has a local connection elsewhere, the local authority to which the application is made should alert the other local authority at an early stage, and seek an agreement in principle that the responsibility for rehousing the applicant, if required, should fall to that other local authority.

7.17 Alternatively a local authority may wish in some circumstances to consider an out-placement in another authority (see paragraphs 8.80 - 8.83 of this Code).

Special cases

7.18 Local authorities should take account of changes in employment patterns, for example the greater use of fixed term contracts and part-time working. While casual employment may or may not be regarded as establishing local connection, depending on the individual circumstances, temporary employment for a substantial period should be considered. Part-time employment should be considered on the same basis as full-time employment, and brief breaks in employment in an area, for example between temporary contracts, might be ignored. Where a person works in more than one centre, regard should be had to the location of their principal place of work, or to their main base for travelling workers.

7.19 Local authorities should also take into account any known risk of external violence to the applicant when deciding whether to refer an application to another local authority.

Arrangements in case of a dispute

7.20 Scottish Ministers have power to make a statutory instrument setting out arrangements to establish if local connection exists where the two local authorities cannot agree. These arrangements may either be those agreed directly between the two local authorities or under procedures set out in agreements between local authority associations in Scotland, England and Wales. The current provisions are in the Homelessness (Decisions on Referrals) Order 1998 (SI 1998/1578) and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71) for applications to English and Welsh local authorities; and by the Homelessness (Decisions on Referrals) (Scotland) Order 1998 (SI 1998/1603) for applications to Scottish local authorities.

7.21 Where the two local authorities cannot agree on whether a local connection exists, the question shall be decided by a person appointed by the two authorities. However if no such person has been appointed within 21 days of the notification that the opinion of the notifying authority that there is a local connection the President of the local authority association (or the President's nominee), will appoint a person from a standing panel to make a final and binding decision on disputes between the local authorities. For cross border disputes, the person deciding the dispute is drawn from a panel appointed jointly by COSLA and the other local authority associations. There is also an agreement between the local authority associations on referral procedures.

Future changes

7.22 Powers in Section 8 of the 2003 Act for Scottish Ministers to modify the use of local connection were commenced on 7 November 2019. This 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. The intention of making a modification is to allow people making homelessness applications as much choice as possible, including in respect of the Council to which they apply. However, nothing will change for local authorities in the short-term. The law sets out a process that Scottish Ministers must consult widely on, and then publish, a statement by November 2020 which will set out the circumstances in which the power to modify local connection is to be exercised, as well as the criteria to be considered before using the power. Following the Ministerial Statement, the statutory instrument to introduce any changes would be brought to the Scottish Parliament. Any statutory instrument prepared by Scottish Ministers would restrict the modification of local connection to arrangements between Scottish local authorities only. Further guidance will be issued at the point at which any changes to the use of local connection are to be brought into force.