Local connection and intentionality provisions in homelessness legislation: consultation

Section 1: Background

In April 2003, the Homelessness etc. (Scotland) Act 2003 (“the 2003 Act”) received Royal Assent and legislation was introduced to radically overhaul Scotland’s existing homelessness laws by, in the main, amending the Housing (Scotland) Act 1987 and the Housing (Scotland) Act 2001. The 2003 Act primarily affects how local authorities carry out their homelessness functions, strengthening people’s rights to support when they are facing homelessness. The 2003 Act also improved the housing rights of people experiencing domestic abuse and provided a mechanism for the abolition of priority need.

While the majority of provisions in the 2003 Act have been implemented, this consultation deals with proposals to implement provisions relating to Local Connection and Intentionality which have still to be commenced.

These provisions were in the 2003 Act following the recommendations made in the early 2000s from the previous Homelessness Task Force, appointed by the Scottish Executive in 1999, with the aims of:

• helping households settle where they choose to live, recognising that there is usually a very good reason for their choice, and
• ensuring people found intentionally homeless would receive the support they needed to address the actions that led to the intentionality decision being made.

Initial discussions in 2005 about commencing these provisions were delayed due to concerns about how we would be able to measure impact. Our national data collection was improved and updates to HL1 introduced in 2007. Following subsequent discussions in 2009, we decided to fully implement the abolition of priority need before revisiting the provisions.

Our Ending Homelessness Together: High Level Action Plan sets out our commitment to a person-centered approach. Commencing these provisions now is fundamental to delivering this commitment, enabling people to access the support they need when and where they need it.

Current legislative position on Local connection

Local connection is defined in the Housing (Scotland) Act 1987 as a connection which a person has with an area because:

• they are or were in the past normally resident in it, and this residence was of their own choice; or
• they are employed in it; or
• they have family associations; or
• they have special circumstances.

1987 Act

Local authorities currently have the power under section 33 of the 1987 Act to refer homeless households who do not have a local connection with them to another local authority where they do have such a connection^[1].

This power does not apply where the person has been assessed as intentionally homeless, and this assessment cannot be revisited by the ‘receiving’ authority. A referral on the grounds of local connection cannot be made where the applicant household would face the risk of domestic abuse in the area where they have a local connection.

Local connection is defined at section 27 of the 1987 Act, as amended by the Homelessness etc. (Scotland) Act 2003^[2]. A local connection is currently formed on the basis of residence of the applicant’s own choice, employment, family associations or any special circumstance. Residence or employment whilst serving in the armed forces is exempt, as is residence due to detention or under section 95 of the Immigration and Asylum Act 1999.

Chapter 8 of the Code of Guidance on Homelessness contains further guidance on implementing the provisions which are currently in force^[3].

2003 Act

Section 8 of the 2003 Act gives Scottish Ministers the power to issue a statutory instrument restricting the operation of the local connection referral rules. This power may be applied to all local authorities or to selected local authorities and can include making referrals, receiving referrals or both making and receiving referrals. Section 8 makes provision to insert new sections 33A and 33B into the Housing (Scotland) Act 1987. These additional sections have the following effects^[4]:

• Scottish Ministers can modify local authorities’ powers to refer an applicant to another local authority on local connection grounds. This allows for national modification to suspend all referrals; for suspension of referrals between particular local authorities or suspension of referrals for particular groups of people who are homeless. It also allows for the subsequent reversal of any changes made.
• Within 12 months of issuing the Scottish Statutory Instrument (SSI) to commence the Section 8 provisions, Scottish Ministers must publish a statement setting out the general criteria by reference to which modifications will take place.
• Scottish Ministers are obliged to consult before preparing or amending this statement.

Current legislative position on Intentionality

The Housing (Scotland) Act 1987 states that a person is intentionally homeless if they deliberately did or failed to do anything which led to the loss of accommodation which it was reasonable for them to continue to occupy.

1987 Act

The Housing (Scotland) Act 1987 currently places a duty on local authorities to investigate whether a person they have found to be homeless or threatened with homelessness became homeless or threatened with homelessness intentionally.

While most homelessness applicants are found to be 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. However, if found to be intentionally homeless local authorities are not obliged to provide the person with settled housing.

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

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^[5]. 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 the individual 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.

Chapter 7 of the Code of Guidance on Homelessness contains further guidance on implementing the provisions which are currently in force^[6].

2003 Act

The Homelessness etc. (Scotland) Act 2003 makes provision to change the operation of the intentionally homeless test which, if commenced, would give local authorities discretion, rather than the current duty, to investigate intentionality.

When commenced, Section 4 of the 2003 Act would remove the duty on local authorities to assess households for intentionality. It inserts a new section 28(2)(b) and a change to section 30 (3)(a) of the 1987 Act. These sections are replicated in full in Annex B and would have the following effects:

• Discretion is given to local authorities as to whether to investigate intentionality, in place of the current duty under section 28(2)(b).
• Local authorities are not under a duty to notify the applicant of their findings as to intentionality where they have not carried out an investigation.

Renewed commitments on preventing, tackling and ending homelessness

The Scottish Government established the HARSAG to provide recommendations to Scottish Government Ministers on the actions and solutions needed to eradicate rough sleeping and transform the use of temporary accommodation in Scotland.

The work of the HARSAG was complemented and informed by the work by the Local Government and Communities Committee of the Scottish Parliament. The HARSAG’s reports^[7] highlight the challenges we face and set out 70 recommendations for action needed across national and local government in conjunction with other partners, to eradicate rough sleeping, transform the use of temporary accommodation and end homelessness.

The recommendations were firmly rooted in the views of people with experience of homelessness and rough sleeping. The Aye We Can report prioritised the views of people with lived experience and ensured that the HARSAG’s recommendations were based directly on people’s experiences and priorities.

The Scottish Government accepted all 70 of the recommendations, in principle, and they have now been translated into the Ending Homelessness Together High Level Action Plan which was published by Scottish Government and COSLA on 27 November 2018. The Action Plan sets out a five year programme, to be delivered in partnership with local authorities and others, to transform temporary accommodation and end homelessness.

Local Connection and Intentionality

Specifically for local connection and intentionality, the HARSAG made the following recommendation aimed at reducing barriers to people getting the support they need so that they can be helped at the earliest opportunity:

The HARSAG’s recommendation 2.15 (Interim Report)

"Revise legislative arrangements that can result in difficulties with people being able to access their rights Scottish Government should revise the legislative arrangements on local connection and intentionality. Specifically, they should commence the current provisions on intentionality in the Homelessness etc. (Scotland) Act 2003 and narrow the definition to focus on instances of ‘deliberate manipulation’ of the homelessness system. In addition, they should commence the provisions on local connection in the 2003 Act and Ministers should exercise powers they would then have under S8 to suspend referrals between local authorities to remove barriers to support for people who are homeless or rough sleeping or at risk of homelessness or rough sleeping. Scottish Government should monitor the impact of these changes on local authorities to respond to any local authorities coming under undue pressure as a result of disproportionate net inflows."

Next Steps

The delivery of the commitments in the joint Scottish Government/COSLA Action Plan is being overseen by the Homelessness Prevention and Strategy Group, jointly chaired by Kevin Stewart MSP, Minister for Local Government, Housing and Planning and Cllr Elena Whitham, COSLA Spokesperson for Community Wellbeing.

The collaborative and inclusive nature of the work of the HARSAG is something we will ensure continues going forward.

This consultation provides you with an opportunity to share your views on commencing the Local Connection and Intentionality provisions in the Homelessness etc. (Scotland) Act 2003, as recommended by the HARSAG. The proposed changes are set out in the next chapter.