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

3. What is unsuitable?

3.1 The 2014 Order provided a definition of what is unsuitable accommodation for pregnant women and households with dependent children but there is no definition of unsuitable accommodation for any other type of homeless household.

3.2 The 2020/139 Order, laid in May 2020, extends the restriction of use of unsuitable accommodation for no more than 7 days to all homeless households, Articles 4 and 5 of the 2014 Order have been amended to reflect this change.

Article 4 of the 2014 Order (as amended)

3.3 The 2014 Order only provided a limited description of circumstances where accommodation is unsuitable if it is:

(a) ‘not wind and watertight’ or

(b) ‘not suitable for occupation by children’

As mentioned above at section 2.6 and 2.7, Article 4(b) has been amended to apply to all homeless households and expanded to ensure the suitability needs of vulnerable people are met. However, the 2020/139 Order also extended Article 4 to include an additional circumstance where accommodation would be deemed unsuitable, where it does:

(c) ‘not meeting minimum accommodation safety standards.’

This additional category of minimum accommodation safety standards was added based on feedback given in the consultation and extends the description of ‘unsuitable’ to include standards specified in the enactment for accommodation in relation to health and safety, hygiene, fire, furniture and electrical equipment standards. This was added to bring the legislation up to date, highlight that other standards must be considered to ensure accommodation is suitable and is in line with the standards published at Annex A of the Code of Guidance on Homelessness.

3.4 In assessing whether accommodation is unsuitable for a homeless household, a local authority must take account of the needs of each member of the household, including any protected characteristics, equality considerations or vulnerabilities around psychological informed service delivery and childhood trauma.

3.5 In the case of children, a local authority must be satisfied that overall, the accommodation does not pose significant risk to the safety of children and ensure that the best interests of the child is met. In May 2011, guidance was published to help local authorities co-ordinate and carry out their duties in relation to children facing homelessness or threatened with homelessness to ensure that the best interests of such children are met fully and equitably across the country.

3.6 Local authorities will need to use their judgment in deciding the possible risk posed by any sort of accommodation, after carrying out a risk assessment that includes involving the applicant and covers equality considerations, the welfare and safety of children to ensure that they are not exposed to trauma triggers, and corporate parenting duties for young adults (including homeless 16 and 17 year olds) which is applicable to the accommodation they are to be offered as well as people associated with the accommodation such as residents and workers.

Article 5 of the 2014 Order

3.7 Article 5 of the 2014 Order provides a list of further circumstances, where accommodation would be deemed to be unsuitable if it is:-

(a) outwith the area of the local authority which is subject to the duty to accommodate under section 29 of the 1987 Act;

(b) is not in the locality of facilities and services for the purposes of health and education which are being used, or might reasonably be expected to be used, by members of the household, unless those facilities are reasonably accessible from the accommodation, taking into account the distance of travel by public transport or transport provided by a local authority;

(c) lacks within the accommodation, adequate toilet and personal washing facilities for the exclusive use of the household;

(d) lacks adequate bedrooms for the exclusive use of the household;

(e) is accommodation within which the household does not have the use of adequate cooking facilities and the use of a living room; or

(f) is not usable by the household for 24 hours a day.

3.8 The 2020/139 Order laid in May 2020 adds a further two circumstances to Article 5, where accommodation would be deemed to be unsuitable if it:-

(g) is not in the locality of the place of employment of a member of the household, taking into account the distance of travel by public transport or transport provided by a local authority; or

(h) is not suitable for visitation by a child who is not a member of the household and in respect of whom a member of the household has parental rights.

3.9 We will look at each of the Article 5 circumstances in turn to help provide more clarity on what each means and cross refer this to Chapter 8 of the Code of Guidance (CoG) on Homelessness which sets out a local authority's accommodation duties towards applicants who are homeless or threatened with homelessness, and guidance on how the duties are fulfilled. The chapter also includes guidance on the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014.

3.10 It should be noted that an interim update of the CoG was published in November 2019 before the 2020 Order was laid and refers to the 2014 Order where the UAO was only applicable to families with dependent children or pregnant women, therefore the relevant Chapter 8 CoG sections provided below have been amended to bring into line with the UAO extension which applies to all homeless households.

3.11 The definitions set out in Article 5 have been further refined as a result of stakeholder feedback and included as amendments via the SSI 2020/419, which is available at Annex B.

Locality

3.12 Article 5 (a) stated accommodation would be deemed to be unsuitable if it is:

(a) outwith the area of the local authority which is subject to the duty to accommodate under section 29 of the 1987 Act;

Section 8.14 of the CoG states:

‘is outwith the local authority's area. This is to prevent households being placed out of area and into accommodation where other clients may pose a risk to the household, which the local authority may not be aware of. It also helps to preserve access to support services offered by the local authority.’

3.13 However, this can be complicated with some local authorities currently providing some accommodation outwith their local authority area. This includes applicants whose initial preference is for an out of area placement or their preference is to remain within an out of area placement and refuse an alternative offer of temporary accommodation within the local authority area, for example to minimise moves between temporary accommodation or because they are experiencing domestic abuse or external violence and require to move to another area for safety reasons.

3.14 In addition, it may be appropriate to secure an out of area placement for clients who have been excluded from accommodation options due to challenging, aggressive or violent behaviour towards other residents or staff. Although this is a short term arrangement, placements may need to extend beyond 7 days in these circumstances to allow for planning time.

3.15 Therefore, in some limited circumstances, with agreement between local authorities and the explicit consent of the homeless household in particular situations, it may be appropriate to provide accommodation in a different local authority area. As a result the SSI at Annex B amends Article 5(a) to state that accommodation would be deemed unsuitable where it is both—

(i) outwith the area of the local authority which is subject to the duty to accommodate under section 29 of the 1987 Act; and

(ii) accommodation in which the household has not agreed to be placed.

3.16 Articles 5 (b) and 5 (g) refer to the 'locality’ of the accommodation and state accommodation would be deemed to be unsuitable if it:

(b) is not in the locality of facilities and services for the purposes of health and education which are being used, or might reasonably be expected to be used, by members of the household, unless those facilities are reasonably accessible from the accommodation, taking into account the distance of travel by public transport or transport provided by a local authority;

(g) is not in the locality of the place of employment of a member of the household, taking into account the distance of travel by public transport or transport provided by a local authority;

Section 8.3 of the CoG states:

‘when making accommodation available, local authorities should always seek to secure long-term solutions to homelessness. This should include consideration of the wide range of factors which may impact on resettlement - in particular the household's requirements in terms of proximity to family and friends and the accessibility of healthcare, employment, education and training and support providers.’

Section 8.14 of the CoG states:

‘is not in the locality of facilities and services for the purposes of health and education which are being used, or might reasonably be expected to be used, by members of the household, unless those facilities are reasonably accessible from the accommodation, taking into account the distance of travel by public transport or transport provided by a local authority (Some authorities provide travel expenses to families to help households access schools that may otherwise be out of reach because of the type of accommodation they are living in).

The CoG then goes to advise that:

‘The purpose of this is to allow households to access the same types of services that they have used in the past or can be expected to use in the near future. This is because many households who become homeless and are moved to temporary accommodation lose access to schools, and health provision. Whilst it is ideal for households to continue to be able to access the same facilities that they've accessed in the past - it is recognised that this is not always possible. So it is acceptable under this standard to ensure that similar facilities are accessible. LAs should also ensure that the facilities which are being counted as being accessible must be genuinely accessible to the household. It is no good ensuring that a household is near a GP if that particular GP will not allow the household onto their list.’

3.17 It is clear from Chapter 8 of the CoG why the locality of facilities and services needs to be considered. It is also recognised that although it is beneficial for households to continue to be able to access their normal services, it is not always possible, specifically in rural areas. In that situation LA’s should ensure that when a household is accommodated similar facilities are accessible by the homeless household, and put support in place for the household to enable them to access services.

3.18 Even with the guidance provided in the CoG, the definition of ‘locality’ is still open to interpretation and will vary between LA’s. From discussion at the UAO LA Working Group (WG), it was suggested that in order to provide more clarity around what constitutes a ‘reasonable locality’ when placing homeless households in accommodation, that as best practice, a checklist of a range of factors should be considered by each LA which may be useful to help with the decision. The homeless household should be involved in this discussion giving them the opportunity to input on what is reasonable to them and allowing then to weigh up and prioritise the different factors included in the list.

The check list of factors to consider should include:

• Local geography (taking account of city / rurality context etc.)
• Family history (i.e. previous patterns of work / school travel)
• The locations which the homeless household has identified as areas in which they could be placed.
• Affordability
• Availability of transport including public transport
• Accessibility of transport (mobility issues, ability to get 4 kids on a bus etc.)
• Access to health and social care services, including relationships with service providers which are important to maintain for anyone experiencing homelessness

3.19 The WG also agreed that there should be a caveat set out for households who require to be accommodated in a different area i.e. due to Domestic Abuse (Domestic Abuse (Scotland) Act 2018) or harassment and again this would be up to the individual LA in discussion with the homeless household to determine what was deemed reasonable. Data shows that victims and the children of domestic abuse are at an increased risk of further abuse in the first months of separation. To help assist LA’s in their response to domestic abuse a useful checklist is available within the Chartered Institute for Housing and Scottish Women Aid joint publication Domestic Abuse: A Good Practice Guide for Social Landlords.

The accommodation

3.20 Articles 5 (c) to (f) refer to other circumstances where accommodation would be deemed to be unsuitable. These criteria are most likely to apply to B&B and large congregate type accommodation such as hostels and the main purpose of this criteria is reduce the use of, and time spent in, unsuitable temporary accommodation.

(c) lacks within the accommodation adequate toilet and personal washing facilities for the exclusive use of the household, which meet the accessibility needs of the household;

(d) lacks adequate and accessible bedrooms for the exclusive use of the household;

(e) is accommodation within which the household does not have the use of adequate and accessible cooking facilities and the use of a living room; or

(f) is not usable by the household for 24 hours a day

3.21 Although these circumstances should be applied to temporary accommodation as per the 2014 Order, now that the Order has been extended to all households the above circumstances should be considered alongside the specific needs of the household in question, whether that be as an individual, couple or family, as all will have different accommodation requirements. Minor amendments have also been made via the 2020/419 Order at Annex B to ensure that the accessibility and suitability needs of vulnerable people are met.

3.22 Within the 2020/139 Order provision was made for accommodating needs of the various homeless groups and included other models of temporary accommodation considered suitable for specific types of homeless households.

3.23 For example where a household consists of an individual applicant it may be the case that they can be offered Shared Tenancy accommodation as an option (more information on Shared Tenancy is provided at section 4 of this guidance). The applicant would then be able to choose to share a flat with another individual, rather than alternative options offered by the local authority. The applicant would have their own bedroom but would share the bathroom, kitchen and living room. This would be classed as suitable temporary accommodation.

3.24 In reference to the circumstances 5 (c) to (f) which refer to temporary accommodation that is deemed to be unsuitable, the CoG states that LAs should use their own HMO standards when determining whether their accommodation meets the relevant standards.

Section 8.14 of the CoG refers:

• lacks adequate bedrooms and adequate toilet and personal washing facilities within the accommodation for the exclusive use of the household. LAs should use their own HMO standards when considering if accommodation meets this standard;
• does not have use of adequate cooking facilities. LAs should ensure that the facilities should meet HMO standards. Note that cooking facilities can be shared with other households in the accommodation - subject to what HMO standards define;
• does not have use of a living room (the purpose of this is to allow any children space to play and do homework) - again, as with the cooking facilities, this does not have to be for the exclusive use of the household;
• is not usable by the household for 24 hours a day. The purpose of this is to prevent households being locked out of the accommodation for part of the day, as can be common practice in some sorts of temporary accommodation.

3.25 Article 5 (h) states accommodation would be deemed to be unsuitable if it is:

(h) is not suitable for visitation by a child who is not a member of the household and in respect of whom a member of the household has parental rights.

3.26 Article 5 (h) was added to the 2020/139 Order following responses to the Improving Temporary Accommodation Standards consultation of 2019. Responders, in particular those with lived experience of homelessness, wanted recognition for homeless households who may have access to non-resident children and that accommodation needs to be suitable to allow the children to visit.

3.27 Parents have statutory responsibilities and rights to help them undertake those responsibilities. Parental responsibilities and rights are set out in sections 1 and 2 of the Children (Scotland) Act 1995. They are “given” to the parents of a child in order that they can be involved in the life of, and take steps to care for and look after the child. These rights and responsibilities are not absolute, and must always be considered alongside the welfare and best interests of the child. Entitlement to parental responsibilities and rights is not automatic and can be removed by the court. It is therefore relevant to consider individual circumstances such as existing shared care, access arrangements and whether the child is allowed to stay overnight.

3.28 As mentioned at section 3.19 of this guidance where there is domestic abuse involved the local authority needs to take this into account as part of the considerations when placing the household in accommodation. Those who have experienced domestic abuse and as a result been separated from their dependent children should wherever possible, not be placed in unsuitable accommodation as this can prevent them regaining responsibility of their children, where it fails to meet the requirements of social work services to enable children to visit or to stay overnight. In all cases any type of separation should be avoided wherever possible as this only adds to the trauma of domestic abuse that both the non-abusive parent and children have experienced and delays the rebuilding of relationships at a critical time in children’s lives.

3.29 The local authority will also need to determine whether there are adequate child protection measures in place so that the continuation of domestic abuse does not continue. For children experiencing domestic abuse, coercive control can continue after separation from an abusive partner, with child contact and accompanying legal proceedings sometimes used as a way for the abusive ex-partner to be involved in the abused person’s life and to continue exerting control over them and their children.

3.30 Protection for people who have experienced domestic abuse, including children and young people, requires professionals to take a Safe and Together approach to ensure that adult and child victims are safe, supported and able to begin their recovery. This should also apply within the provision and delivery of homeless temporary accommodation.

3.31 The Scottish Government and COSLA Equally Safe Strategy sets out the approach in Scotland to tackling violence against women and girls. The gendered analysis adopted does not exclude men, but rather recognises that women and girls are disproportionately affected by particular forms of violence, including domestic abuse, because they are women and girls. It is recognised that men and boys can be victims of violence and abuse too.

3.32 As part of the interim CoG published in November 2019, a set of advisory standards to be applied by local authorities to their temporary accommodation and also to any temporary accommodation provided from other providers was included. A copy of those new advisory standards is provided at Annex D of this guidance.

3.33 These standards relate to all types of temporary accommodation including congregate accommodation such as B&Bs, to ensure that the quality of temporary accommodation provided is of good standard and meets the needs of the household. The standards include physical standards that should apply where appropriate across all tenures to ensure that temporary accommodation is an accessible, adequate, safe and secure space for the household and should:

‘Have provision to allow visitors, including provision for visits from children, where possible’.

3.34 As mentioned earlier it is important for local authorities to establish if there is a shared custody arrangement in place during the risk assessment process of the housing assessment ensuring that there are adequate child protection measures in place.