Local connection and intentionality provisions in homelessness legislation: consultation

Section 2: Proposed Changes

Local Connection

The HARSAG recommended the following actions on local connection:

1. Commence the provisions on local connection in the 2003 Act.
2. 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.
3. 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.

In line with the HARSAG recommendation it is now proposed to bring forward secondary legislation under section 33A of the 1987 Act which will then allow us to suspend the local connection referral provision which is currently in place.

We agree with the HARSAG that referrals between local authorities should be suspended to remove barriers to support people who are homeless or rough sleeping or at risk of homelessness or rough sleeping.

It is our expectation that those who are homeless or rough sleeping are more likely to resettle successfully, and avoid repeat homelessness, if they are living in an area of their choosing and which supports other elements of their lives (family, social networks, employment, education etc.), including their future aspirations and whether they are integrated into the local community. People experiencing homelessness are best placed to make the judgement as to the geographical area which best meets these needs. Choice may lead to better outcomes than a strict interpretation of the legislative test. However, we agree with the HARSAG that it is necessary to balance this desire with the need to ensure that these choices are realistic in terms of accommodation and support capacity within local authorities.

We are in a position to commence these provisions in 2019 and we are seeking your views on the timing in Section 3. As mentioned in the introduction to this paper, Ministers are obliged to make a statement within 12 months of section 8 of the 2003 Act coming into force setting out the circumstances in which, and the general criteria by reference to which, the power to modify the local connection provisions is to be exercised. Following this statement, any suspension of local connection referrals would then be introduced by statutory order.

Intentionality

The HARSAG recommended actions on intentionality:

1. Commence the current provisions on intentionality in the Homelessness etc. (Scotland) Act 2003.
2. Narrow the definition to focus on instances of ‘deliberate manipulation’ of the homelessness system.

Current provisions in the 1987 Act give local authorities a duty to investigate whether the individual became homeless of threatened with homelessness intentionally^[8].

In line with the HARSAG recommendation it is now proposed to change the wording of intentionality provisions under section 28 of the 1987 Act in order to give local authorities a discretion, rather than a duty, as to whether to investigate whether or not a household is intentionally homeless.

We agree with the HARSAG that there is a need for intentionality provisions to mitigate against perverse incentives. Provisions need to be in place to ensure that people don’t take advantage of the system. However, we must ensure that this does not increase the disadvantages faced by any groups, such as those with protected characteristics and/or multiple, complex needs, by restricting support available in cases where people are e.g. fleeing their home due to threats of violence or moving out of unaffordable accommodation, in an attempt to avoid increasing rent arrears debt.

It is proposed that changes would be made to the intentionality provisions by commencing provisions in the 2003 Act. The changes made would mean that the authority may, if they think fit, make any further inquiries necessary to satisfy themselves as to whether a household has become homeless or threatened with homelessness intentionally^[9].

We are in a position to commence these provisions in 2019 and we are seeking your views on the timing in Section 3.

The HARSAG also recommended narrowing the definition of intentionality to focus on instances of applicants ‘deliberately manipulating’ the homelessness system. Currently, there are no provisions in the legislation for the definition of intentionality (in the Housing (Scotland) Act 1987) to be changed. We are carefully considering the options regarding this element of the recommendation and plan to take forward separately (timing to be confirmed).

Monitoring

Scottish Government plan to monitor the impact of these changes on local authorities by continuing with our current HL1 data collection. This will mean that we will be aware of any local authorities coming under undue pressure as a result of disproportionate net inflows and will be able to take appropriate action should it be proved necessary.

The current HL1 National Statistics data collection in Scotland collects data at the point people make a homelessness application to the local authority on a quarterly basis. It allows local authorities to record whether or not the applicant household has a local connection with the area to which they have applied, regardless of the impact on the decision making. It also allows local authorities to record whether or not an applicant is assessed as intentionally homeless, regardless of the impact on the decision making. This allows us and local authorities to monitor applications.

National data on local connection and intentionality

During 2017/18, 28,792 households were assessed as homeless or threatened with homelessness^[10].

The national data regarding local connection show that there have been decreases over time in both the number of applicants assessed as having a local connection with a local authority and in the number of applicants referred to another local authority under the 1987 Act. Single people were more likely to be referred than single parents and males were slightly more likely to be referred than females^[11].

Across Scotland, relatively few applicants are found to be intentionally homeless or threatened with homelessness, although the overall numbers have increased slightly over time. As with local connection, a slightly higher proportion of males are found intentionally homeless that might be expected. A higher proportion of people aged 35-49 are likely to be found intentionally homeless than might be expected from the data on overall assessments, and fewer single parents and people between 16 and 24. The most common reason for those found intentionally homeless to be applying to their local authority for support relates to default on rent or mortgage payments^[12].