Modifying local connection referrals: ministerial statement

Section 1: Introduction

1.1 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.

1.2 The Homelessness and Rough Sleeping Action Group (HARSAG) was subsequently established to consider the most appropriate actions to make the transformational changes required. The 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 updated in October 2020 after HARSAG was reconvened to consider actions needed in response to the global coronavirus pandemic. The plan was backed with a £50 million Ending Homelessness Fund. Specifically, for local connection (and intentionality), HARSAG recommended that the Scottish Government 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."

1.3 The Scottish Government issued a consultation paper in January 2019 inviting views on HARSAG's recommendation to commence the provision in section 8 of the Homelessness etc. (Scotland) Act 2003 ("the 2003 Act"). This provision would give Scottish Ministers the power to modify, by statutory order, referrals for local connection, and Ministers could use the new power to suspend referrals between local authorities in Scotland. The consultation also sought views on the HARSAG recommendation to commence the provision in section 4 of the 2003 Act to change the duty for local authorities to investigate for intentionality to a discretionary power.

1.4 The Scottish Government agreed with the majority of respondents that people who are homelessness or threatened with homelessness are best placed to decide the geographical area which best meets their needs. Therefore, following on from the consultation and further engagement with stakeholders, the Homelessness etc. (Scotland) Act 2003 (Commencement No. 4) Order 2019 was commenced. The local connection (and intentionality) provisions in the 2003 Act were brought into force on 7 November 2019.

1.5 For local connection, the provisions in section 8 of the 2003 Act inserted new sections 33A and 33B into the 1987 Act, giving the Scottish Ministers the power to modify the operation of section 33 of that Act, which allows referral of a homeless applicant to another local authority in certain circumstances.

1.6 Section 33A allows Ministers to prescribe, by statutory order, that the power of a local authority to refer an applicant, who is homeless or threatened with homelessness, to another authority is not to be exercisable by, or in relation to, such local authorities as are specified in the order.

1.7 Section 33B requires that Scottish Ministers must, before the expiry of the 18 month period from section 8 of the 2003 Act coming into force (i.e. by 7 May 2021), prepare and publish a Ministerial Statement setting out the circumstances in which, and the general criteria by reference to which, the power under section 33A is to be exercised. It also requires that the statement must be consulted on before being prepared or modified.

Ministerial Statement

1.8 As required by section 33B, the Scottish Government ran a consultation, between 3 August and 23 October 2020, to assist with the preparation of the ministerial statement. The consultation invited views on the core content of the draft ministerial statement. The statement at section 2 of this paper has been prepared in consideration of the comments received.

Housing (Scotland) Act 1987

1.9 Local authorities currently have the power, but not a duty, under section 33 of the 1987 Act to refer homeless households who do not have a local connection with them to another local authority in England, Scotland or Wales where they do have such a connection. Section 34 of the Act sets out the duties to persons who are referred.

1.10 The power does not apply where the person has been assessed as intentionally homeless as there is no duty to provide settled accommodation in these circumstances. 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.

1.11 Local connection is defined at section 27 of the 1987 Act 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.

1.12 For those who have been serving in the armed forces, changes to the 1987 Act were introduced (through the 2010 Act^[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.

1.13 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 a refugee who is homeless or threatened with homelessness in Scotland can apply to any of the 32 Scottish local authority areas.

1.14 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.

1.15 Further guidance on applying the current local connection provisions is available in Chapter 7 of the Code of Guidance on Homelessness.