Ministerial Statement for modifying local connection referrals: consultation

Section 1: Background on HARSAG Recommendation, Legislative Provision and Consultation

9 The Programme for Government announced by the First Minister on 5 September 2017 set out the Scottish Government's commitment to eradicate rough sleeping, transform the use of temporary accommodation in Scotland and end homelessness.

10 The Homelessness and Rough Sleeping Action Group (HARSAG) was subsequently established to consider the most appropriate actions to make the transformational changes required. The 70 recommendations from HARSAG were incorporated into the Ending Homelessness Together Action Plan, which was published jointly by the Scottish Government and COSLA in November 2018, and which we backed with a £50 million Ending Homelessness Fund. Specifically, for local connection (and intentionality), HARSAG recommended that we should:

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."

Housing (Scotland) Act 1987

11 Local authorities currently have the power, but not a duty, under section 33 of the 1987 Act, to refer households they have assessed as homeless and who do not have a local connection with them to another local authority where they do have such a connection.

12 This power does not apply where the person has been assessed as intentionally homeless, as there is no duty to provide settled accommodation. The assessment of the 'notifying' authority 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.

13 Local connection is defined at section 27 of the 1987 Act, as amended by Section 7 of the Homelessness etc. (Scotland) Act 2003. A local connection is currently formed on the basis of residence of the applicant's own choice, employment, family associations or any special circumstance.

14 For those who have been serving in the armed forces, changes to the 1987 Act were introduced (through the Housing (Scotland) Act 2010^[1]), which enable members of the armed forces, and those who live with them, to establish a local connection with the area they have lived or worked in.

15 A household in accommodation provided in pursuance of section 95 of the Immigration and Asylum Act 1999^[2], is not considered to have established a local connection with the area to which they are dispersed as it is not considered to be a "residence… of their own choice" under section 27 of the 1987 Act. This means that, unlike the position in England, a refugee who is homeless or threatened with homelessness in Scotland can apply to any of the 32 local authority areas in Scotland.

16 Where an applicant has no local connection with the authority to which they have applied, and no local connection with any other authority in England, Scotland or Wales, the responsibility for dealing with the application rests with the local authority the applicant applied to. Further guidance on applying the current local connection provisions is available in Chapter 7 of the Code of Guidance on Homelessness.

Homelessness etc. (Scotland) Act 2003

17 The Homelessness etc. (Scotland) Act 2003 set the framework for fundamental changes to the eligibility criteria which apply to homeless applications by, in the main, amending the 1987 Act and the Housing (Scotland) Act 2001.

18 The most significant of these changes was the abolition of the priority need test, a change that meant that unintentionally homeless applicants (and their households) seeking assistance from a Scottish local authority would be entitled to settled accommodation. This entitlement would no longer depend on a person falling into a priority need group. While local authorities had initially expressed strong reservations about the capacity within the sector to introduce these changes they have now been implemented successfully.

19 The commencement of Section 8 of the 2003 Act amends section 33 of the 1987 Act to give Scottish Ministers the power to issue a statutory instrument to modify 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:

• Scottish Ministers can modify, by statutory order, local authorities' powers to refer an applicant to another local authority on the grounds of their local connection. Such an order can therefore restrict a specified local authority from making referrals and/or other local authorities making referrals to it. The legislation also allows for the subsequent reversal of any changes made.
• Within 18 months of the Section 8 provisions commencing, Scottish Ministers must prepare and publish a Ministerial Statement setting out the circumstances in which, and the general criteria by reference to which, the power to modify local connection is to be exercised.
• Scottish Ministers are obliged to consult such associations representing local authorities and such other persons, as they see fit, before preparing or amending this statement.

20 Scottish Ministers also have the power to reverse or alter modifications, in the event that information comes to light that suggests they are no longer appropriate.

Responses to Previous Consultation

21 We invited views, last year, on our plans to commence the provision in the 2003 Act to allow Scottish Ministers to modify referrals relating to local connection and our intention to implement the proposal from HARSAG to suspend referrals in Scotland.

22 We received 72 responses overall to last year's consultation paper, with 65 responding to the local connection question. These were from a range of individuals, local authorities, housing associations, tenants groups, third sector organisations, legal groups and other stakeholders. The highest level of support (51%) was for suspending local connection referrals across all local authorities in Scotland. A further 29% supported modifying local connection referrals in another way and 20% were entirely opposed to commencing the provisions. We published the consultation responses, where we had received permission to do so, as well as an analysis of the responses.

23 Two key themes emerged in responses to the consultation. The first, from those who supported suspending local connection referrals, was support for people experiencing homelessness to be able to choose where they wish to settle. This was seen as offering choice to people experiencing homelessness, removing unnecessary barriers to finding permanent accommodation and ensuring that homelessness services can be delivered at the point of need.

24 The second key theme, from those not favouring a suspension, mainly local authority responses, was concern over the potential increase to the numbers of referrals in areas that do not have the resources to meet accommodation and/or support needs. Various different types of local authority were cited, including major cities such as Glasgow or Edinburgh, urban areas or rural and island and highland areas.

Coronavirus pandemic

25 The opportunity was taken in the Coronavirus (Scotland) (No.2) Act 2020 to make provision to extend, by 6 months, the deadline period for Scottish Ministers to publish the statement on exercising the power to modify referrals between local authorities on the grounds of local connection, as required under section 33B(1) of the 1987 Act. The deadline is now therefore 18 months rather than 12 months after the coming into force of section 33B (on 7 November 2019). The Act also allows Scottish Ministers to introduce regulations to further extend the period by up to an additional 6 months, on a one-off basis, should this be necessary.

26 Local authorities and third sector partners have been facing particular challenges in their efforts to accommodate and support people who were rough sleeping and to prevent further homelessness during the pandemic. This significantly limited their capacity to engage while that was ongoing and the Scottish Government therefore decided to postpone the consultation until a time when capacity to deliver was restored.