Code of Guidance on Homelessness

CHAPTER 7 - INQUIRIES INTO INTENTIONALITY

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

7.2 While most applicants are unintentionally homeless, the intentionality criteria allows local authorities 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. 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.

7.3 Where an applicant has been found to be homeless, or threatened with homelessness, and in priority need, the local authority must 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 him or her to continue to occupy their previous accommodation.

7.4 Local authorities should have regard to all the circumstances of an applicant before 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). The local authority may also have continuing duties to children and young people under the terms of the Children (Scotland) Act 1995.

7.5 The circumstances in which a person is to 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 he or she has 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 he or she 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.

7.6 Homelessness officers must consider all the circumstances of an applicant before coming to a decision on intentionality. They should not simply apply standard criteria. They must also be alert to the danger of a precipitate finding of intentional homelessness.

7.7 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 he or she did not become homeless intentionally.

Criteria for determining intentionality

7.8 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. He or she would not be intentionally homeless if he or she had not acquiesced in 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 he or she was aware of his or her 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 mentally ill person, 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 illness or learning disability (see paragraphs 2.59 onwards in chapter 2 for more guidance on anti-social behaviour and homelessness). Even if the applicant seems to be homeless only because of his or her financial (or other) imprudence or lack of foresight, it should not be automatically decided that the homelessness was intentional.

7.9 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).

7.10 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

7.11 In general, a person who has to leave temporary accommodation because his or her right to live there has expired, should not be regarded as being intentionally homeless, for example if a short assured tenancy has expired and not been renewed. 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.

7.12 A homeless person 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

7.13 A person who chooses to sell his or her 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 his or her affairs; may well be regarded as having become homeless intentionally. If, however, a person's house was sold because he or she could not keep up the loan repayments, or he or she got into rent arrears because of real personal or financial difficulties (for example, if he or she has become unemployed, or is working part time, or has 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 he or she was unable to obtain accommodation because of the loss of a rent deposit which was not due to a deliberate act or omission on his or her part, nor should a lost deposit be regarded as rent arrears.

7.14 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 he or she 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. It should be borne in mind that young people under 25 receive a lower rate of housing benefit.

7.15 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.

7.16 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

7.17 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

7.18 Failed tenancies 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.

7.19 A young person who has a clash of lifestyle with his or her 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 parent(s).

Tied accommodation

7.20 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.

7.21 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

7.22 Someone who has left home because of domestic abuse should never be regarded as having become homeless intentionally, because it would clearly not be reasonable to have stayed at home. Similar rules should be applied to those who leave because of external violence or threats, for example racial attacks or anti-social neighbours.

7.23 An applicant who has not exercised his or her occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 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 how they can enforce these rights if they wish.

Period for which intentionality lasts

7.24 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.

7.25 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 social work 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.

Future changes

7.26 The Homelessness etc (Scotland) Act 2003 provides for changes to the intentionality regime. These are:

• changing the duty to investigate intentionality to a power to do so; and
• changing the duty owed to intentionally homeless households, requiring local authorities to grant a short Scottish secure Tenancy ( SST) with housing support to these households. Where this short SST remains in place for a year then the household will be entitled to a full SST. If the short SST fails then the local authority will continue to have a duty to provide non-tenancy accommodation and support, but not to provide a tenancy (although it may do so if it wishes). Similarly, where the applicant is intentionally homeless but also subject to an or has been evicted for anti-social behaviour in the last 3 years, the local authority is not required to grant a short SST with support but must still provide non-tenancy accommodation and such support as it considers appropriate. In addition, see paragraph 67-74 on s and subsequent homelessness.

7.27 The relevant provisions of the 2003 Act have not yet been commenced but local authorities should be aware of, and preparing for, implementation including development of services. Work is being undertaken at present looking at models of accommodation and support for intentionally homeless households. Further guidance will be issued as the 2003 Act is commenced.