Code of Guidance on Homelessness

CHAPTER 6 - PRIORITY NEED

6.1 Summary - this chapter defines the different categories of priority need and gives guidance on how a local authority could decide if an applicant were in priority need.

6.2 In its final report the Homelessness Task Force recommended that the rights possessed by those assessed as being in priority need under the 1987 Act should be extended to all those assessed as homeless and that the priority need distinction should, therefore, be eliminated. Powers to take forward this recommendation were taken in the 2003 Act and a target date of 2012 for priority need abolition was set. Interim measures are likely to be introduced before then to widen the category of priority need and further guidance will be issued. This chapter sets out the current legislative position. Local authorities should bear in mind that they should seek to meet the wider housing and support needs of all applicants regardless of their priority status.

Current position - categories of priority need

6.3 The Housing (Scotland) Act 1987 (as amended) sets out categories of homeless persons who must be considered as having a priority need for housing. Below is a list of these categories, and paragraph 193 provides further guidance on each category:

• a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside
• a person with whom dependent children reside or might reasonably be expected to reside
• a person who is vulnerable as a result of-

old age;

mental illness;

personality disorder;

learning disability;

physical disability;

chronic ill health;

having suffered a miscarriage or undergone an abortion;

having been discharged from a hospital, a prison or any part of the regular armed forces of the Crown; or

other special reason

• a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or any other disaster
• a person with whom a person referred to in section 25(1)(c) or (d) of the 1987 Act resides or might reasonably be expected to reside
• a person aged 16 or 17
• a person aged 18 to 20 who by reason of the circumstances in which the person is living, the person runs the risk of sexual or financial exploitation or involvement in the serious misuse of alcohol, any drug (whether or not a controlled drug within the meaning of the Misuse of Drugs Act 1971 (c.38)) or any volatile substance
• a person aged 18 to 20 who, at the time when the person ceased to be of school age (within the meaning of section 31 of the Education (Scotland) Act 1980 (c.44)) or at any subsequent time, was looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c.36)) and the person is no longer being so looked after
• a person who runs the risk of domestic abuse (within the meaning of section 33(3) of the 1987 Act)
• A person who, by reason of that person's religion, sexual orientation, race, colour or ethnic or national origin runs the risk of violence, or is, or is likely to be, the victim of a course of conduct amounting to harassment.

6.4 The following provides some guidance on the categories of priority need:

• a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside

This applies regardless of the stage of pregnancy or the woman's age.

• a person with whom dependent children reside or might reasonably be expected to reside

6.5 The 1987 Act does not define dependent children, but local authorities should treat as dependent all children of 15 or less; and all others of 18 or less who are either receiving or about to begin full-time education or training or are for some other reason unable to support themselves. Dependent children need not be the children of the applicant (for example foster children). Where parents have joint or shared custody, local authorities should consider the periods for which a child is resident with each parent. Formal legal custody arrangements should not be required and local authorities should take full account of voluntary arrangements that have been agreed. (see Chapter 5 paragraphs 5.8-5.10)

6.6 The Act does not require that the children should be living with the applicant at the time of the applicant's request for assistance - they may for instance be living temporarily with other relatives because of the applicant's homelessness, or the applicant may be seeking a residence order and waiting for a legal decision, and such children would usually 'reasonably be expected' to live with the applicant. The starting assumption should be that it is reasonable that an applicant's children should live with the applicant; and the practice of splitting families because of their homelessness is not acceptable, even for short periods.

• a person who is vulnerable as a result of -

old age;

mental illness;

personality disorder;

learning disability;

physical disability;

chronic ill health;

having suffered a miscarriage or undergone an abortion;

having been discharged from a hospital, a prison or any part of the regular armed forces of the Crown; or

other special reason

6.7 A person is considered vulnerable when they are less able to fend for themselves so that they may suffer in a situation where another homeless person would be able to cope without suffering. The above categories detail specific circumstances which may lead to vulnerability. The meanings of the categories are not defined in the legislation and local authorities should seek proper and relevant advice in relation to an applicant's vulnerability.

6.8 This might include seeking advice from, amongst others, health, social work or housing professionals. Where relevant advice conflicts the local authority may choose which advice to follow while showing that it has properly considered the position.

6.9 There is no set age at which vulnerability may occur and local authorities should consider the applicant's circumstances fully. It may be appropriate to seek specialist advice in considering the above conditions which are likely to have different impacts according to their nature and the particular circumstances of the applicant. Factors which might be relevant to consider include how long ago the events occurred.

6.10 As the "vulnerability" categories are not defined in legislation local authorities should avoid blanket policies and instead focus on the individual applicant's circumstances. These might include the community in which they live and attitudes towards their circumstances, for example to mental illness.

6.11 In particular the 1987 and 2003 Acts do not define the category of 'other special reason' and it is not possible to list all potential special reasons for vulnerability. It is important to exercise sympathetic discretion, taking into account the particular circumstances of each person and asking for expert advice if needed. There is no bar to local authorities assessing other applicants as being vulnerable for 'special reason' in the light of the legislation, case law and their particular circumstances, and hence in priority need. Each local authority will have to exercise common sense and judgement in determining whether a particular applicant is vulnerable.

6.12 Former asylum-seekers who have been granted refugee status or humanitarian protection or other leave to remain in the UK may be eligible for homelessness assistance (see chapter 13 for more details) and may be homeless as a result of having to leave accommodation which was provided for them ( NASS accommodation) when they were pursuing their asylum claim. They may well have experienced persecution in their country of origin or severe hardship in their efforts to reach the UK and may be vulnerable as a result. In assessing applications from this client group, housing authorities should give careful consideration to the possibility that they may be vulnerable as a result of another special reason.

• a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or any other disaster.

6.13 In larger-scale emergencies, the obligations of the local authority under the Act may be discharged by action under section 84 of the Local Government (Scotland) Act 1973 - for instance, by the provision of special forms of temporary accommodation. Paragraph 9.20 in chapter 9 below gives guidance on how the Homeless Persons (Unsuitable Accommdation) (Scotland) Order 2004 makes an exception to allow the use of "unsuitable" accommodation in the case of this sort of emergency.

• a person with whom a person referred to in section 25(1)(c) or (d) of the 1987 Act resides or might reasonably be expected to reside, that is those persons who are vulnerable or who are homeless or threatened with homelessness as a result of an emergency (see above)
• a person aged 16 or 17.
• a person aged 18 to 20 who by reason of the circumstances in which the person is living, the person runs the risk of sexual or financial exploitation or involvement in the serious misuse of alcohol, any drug (whether or not a controlled drug within the meaning of the Misuse of Drugs Act 1971 (c.38)) or any volatile substance. Risk may not be immediately apparent and each case should be considered on its merits and the risk assessed according to the individual's circumstances.
• a person aged 18 to 20 who, at the time when the person ceased to be of school age (within the meaning of section 31 of the Education (Scotland) Act 1980 (c.44)) or at any subsequent time, was looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c.36)) and the person is no longer being so looked after.

6.14 It should not be assumed that simply because an applicant is over a specified age limit in the two categories above that he or she is not in priority need; vulnerability for other special reason may be apparent in other young people.

• a person who runs the risk of domestic abuse (within the meaning of section 33(3) of the 1987 Act). This definition follows that set out in the Protection from Abuse (Scotland) Act 2001 which 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 who, by reason of that person's religion, sexual orientation, race, colour or ethnic or national origin runs the risk of violence, or is, or is likely to be, the victim of a course of conduct amounting to harassment.

6.15 References to conduct, course of conduct and harassment are to be construed in accordance with section 8 of the Protection from Harassment Act 1997. Section 8 of that Act sets out that "conduct" includes speech; "harassment" of a person includes causing the person alarm or distress; and a course of conduct must involve conduct on at least two occasions.

Future changes

6.16 The 2003 Act enables the Scottish Ministers to abolish the priority need test so that the accommodation and services currently available to those in priority need are available to all those assessed as homeless. The legislation requires Ministers to publish a statement, by 31st December 2005, setting out an action plan for the abolition of the priority need test. Local authorities' homelessness strategies should set out the actions required to achieve the target of abolishing priority need in 2012. Further information on the abolition of priority need is available from Scottish Executive Homelessness Team. Further guidance will be issued when changes are made to the priority need test.