Homeless Persons (Unsuitable Accommodation) (Scotland) Order: guidance

1. Introduction

1.1 The purpose of this guidance is to help guide local authorities in their duties to assist people who are threatened with or who are experiencing homelessness and aims to explain the changes that have been created by the new legislation as well as providing clarity on the definitions and exemptions to help local authorities with the implementation of the UAO extension. Local authorities should have regard to the guidance in setting their Local Housing Strategy and in their ongoing development of their Rapid Rehousing Transition Plan.

1.2 This guidance should be read and used in conjunction with all other published guidance and legislation on homelessness. This section of the UAO guidance refers to some of the various published guidance that should be considered by all local authorities where temporary accommodation has to be used, to ensure that there is a consistent approach when assessing whether temporary accommodation is suitable, is the most appropriate to meet the needs of the homeless household and offers as much choice and control to the household as to where they are placed

1.3 The Housing (Scotland) Act 1987 (“the 1987 Act”), as amended, sets out the powers and duties of local authorities in dealing with applications from people seeking help on the grounds that they are homeless or threatened with homelessness including the power to make the Unsuitable Accommodation Order. Section 37(1) requires local authorities to have regard to Guidance issued by Scottish Ministers in the exercise of their homelessness functions and includes this guidance.

1.4 Local authorities have a statutory responsibility to prevent and alleviate homelessness and the Code of Guidance on Homelessness is a supporting document for local authority staff in carrying out relevant activities and discharging this responsibility and sets out a summary of legislative duties with supporting explanation and guidance. It is intended to support local authorities and Integrated Joint Boards dealing with homelessness policy and support staff who are responsible for making decisions on homelessness applications.

1.5 This Code also states that local authorities and other agencies should carefully record all advice and assistance offered and monitor their service in relation to their duties under the Equalities Act 2010, which protects all protected characteristics from discrimination. The Code of Guidance states that: Particular attention should be paid to ensuring that the different experiences of homelessness and service requirements of people of differing age, family background, race, disability, gender, sexual orientation and religion and belief are recognised.

1.6 It is the intention that this guidance will be incorporated into the revised Code of Guidance when produced and in the meantime it is important that this guidance is utilised by local authorities to help implement the UAO.

1.7 The Housing (Scotland) Act 2010 introduced a duty, under Section 32B of the 1987 Act, on local authorities to conduct a housing support assessment for applicants who are unintentionally homeless or threatened with homelessness and who they ‘have reason to believe’ need housing support services prescribed in the regulations. Local authorities need to undertake a robust risk assessment process as part of their housing support service that takes into consideration all the needs, including assessing any support needs and vulnerabilities, of the homeless household to ensure that the accommodation being offered meets the specific circumstances of the household.

1.8 Building on the 2010 Act, the Housing Support Services (Homelessness) (Scotland) Regulations 2012 came into force on 1 June 2013. Regulation 2 prescribes four types of housing support services which apply for the purposes of the 2010 duty. These are for advising or assisting a person:

• with personal budgeting, debt counselling or in dealing with welfare benefit claims
• to engage with individuals, professionals or other bodies with an interest in that person’s welfare
• in understanding and managing their tenancy rights and responsibilities, including assisting a person in disputes about those rights and responsibilities
• in settling into a new tenancy

1.9 The Housing Support non statutory guidance was published in June 2013 and was introduced to augment the 2010 duty and 2012 Regulations and this guidance was designed with the intention to help and support local authorities on the implementation of the duty, assist in compliance of the duty, include a review process to allow the incorporation of improvements and good practice examples over time and to help achieve the best possible outcomes for homeless households in their area.

1.10 The Guidance has been developed, and should be read, against the backdrop of the development of Housing Options approaches to prevention of homelessness with local partners in local areas and the practice that has emerged as a result of that approach. It is intended that this approach to prevention and the housing support duty should complement each other and that housing support resources should be allocated flexibly across these key objectives whilst adhering to the relevant legislation.

1.11 To assist with homelessness allocations, the Scottish Government published a Practice Guide on Social Housing Allocations in Scotland. The purpose of the guide was to offer practical assistance to LA staff responsible for reviewing, monitoring and updating allocation policies and procedures to ensure they comply with the current legislation. This guide refers to the Scottish Social Housing Charter which sets out the outcomes and standards that all social landlords should be delivering for their tenants and other customers with emphasis on ensuring that every tenant and customer has their individual needs recognised, is treated fairly and with respect, and receives fair access to housing and housing services. Allocation policies should also reflect the Scottish Social Housing Charter. Landlords should ensure that their allocation policy complies with the relevant equality and human rights duties.

1.12 Some local authorities, as best practice, find that using personal housing planning as part of their housing assessment is important. To assist the LA meeting temporary and permanent accommodation that meets the household’s needs, the Personal Housing Plan (PHP) may cover the family composition, previous housing history including the location and whether this was successful or not, reasons for current/previous homelessness, medical requirements and support needs, and what support is required to ensure that the applicant can sustain the settled accommodation. Having a PHP in place provides homeless households with a plan during their time in temporary accommodation and information about the options and expectations for moving to permanent accommodation.

1.13 The legislation laid in May 2020 SSI 2020/139 came into immediate effect and amended the 2014 Homeless Persons (Unsuitable Accommodation) (Scotland) Order and was made in response to the Coronavirus outbreak and to give effect to the PfG commitment. Its introduction sought to ensure a move away from the use of unsuitable accommodation, such as hotels and B&Bs, but recognised the need for placements in this type of accommodation were necessary as a result of the coronavirus outbreak.

The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment (Coronavirus) Order 2020

1.14 As the coronavirus pandemic continued, SSI 2020/268 was laid that extended the temporary exceptions of the Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2020 due to expire on 30 September 2020 for a further 4 months until 31 January 2021.

1.15 Extending the temporary exceptions until 31 January 2021 allowed LA’s to continue to use certain types of temporary accommodation to ensure that homeless households have access to accommodation that enables them to physical distance and self-isolate where this is required as a direct response to the continuing pandemic.

1.16 A further exception has also been created for situations where the local authority is unable to place the household in suitable accommodation as a result of the impacts of coronavirus on temporary accommodation supply in the area. This exception does not apply to households containing children or pregnant women, where placements in unsuitable accommodation of over 7 days are not permissible. Annex A of this guidance provides more detail of the extended exceptions and additional modification.

The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment (No.2) Order 2020 (2020/419)

1.17 As the Working Group were developing this supporting guidance for the Unsuitable Accommodation Order, members and wider stakeholders identified issues around the drafting of Articles 4, 5 and 6 of the Order and the connection between definitions of suitability of accommodation and when exemptions should apply.

1.18 Although the guidance will help to outline the policy intention, the guidance will also explain how the Order should be interpreted and applied and after consideration, the Working Group felt that the legislation itself needed to be amended.

1.19 As a direct response to this, and other feedback received from stakeholders, a further SSI (Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment (No.2) Order 2020) (2020/419) was laid on 11 December 2020 and is produced in full at Annex B of this guidance.

1.20 In response to the ongoing pandemic a further extension to the temporary exceptions was agreed and a further SSI was laid on 13 January 2021. The Homeless Persons (Unsuitable Accommodation) (Scotland) (Modification and Revocation) (Coronavirus) 2021/10 came into force on 31 January 2021 and extends the temporary exceptions until 30 June 2021. This Order is reproduced at Annex E of this guidance.

Rapid Rehousing Transition Plan

1.21 Rapid rehousing is the key to moving anyone experiencing homelessness into settled accommodation. It is about ensuring that people spend the shortest amount of time in temporary accommodation and are rehoused as soon as appropriate and into accommodation that is sustainable for the household.

1.22 Each LA has a live Rapid Rehousing Transition Plan (RRTP) which is reviewed on an annual basis, setting out how to address the local balance of temporary and settled housing options. Every LA is working to implement its RRTP which means that all councils must move through temporary accommodation as quickly as is appropriate. At the same time, any temporary accommodation that is used should be of a high quality through the new standards and changes to legislation, including the UAO extension to all homeless households.

1.23 Following the response to the coronavirus crisis and the immediate work undertaken by the Scottish Government, local authorities and charities moved quickly to provide self-contained emergency accommodation for hundreds of people who were rough sleeping or staying in shelters or hostels with shared facilities, it was subsequently decided to reconvene HARSAG to review the Scottish Government’s planning for moving to the next phase of ensuring that people facing homelessness during the coronavirus crisis would be supported to move on from emergency accommodation to settled housing rather than going back to the street or congregate facilities.