Operation of the homeless persons legislation in Scotland: quarters ending 30 June and 30 September 2011 (including households in temporary accommodation at 31 December 2011)

Summary of current legislation

1. The Housing (Homeless Persons) Act 1977, now consolidated into Part II of the Housing (Scotland) Act 1987, introduced statutory duties on housing authorities to assist those who are homeless or threatened with homelessness (potentially homeless), including providing accommodation in certain circumstances.

2. The legislation currently requires local authorities to make inquiries into the circumstances of applicants to satisfy themselves whether the applicant is homeless or potentially homeless. Once the authority is satisfied this is the case, it must also determine whether the applicant has a priority need, whether he/she became homeless intentionally and, in some cases, whether the applicant has a local connection with another authority in Scotland, England or Wales. A local connection with an authority means that the applicant normally resided in that area from choice, either because he/she was employed in or had family associations with it, or for other special reasons.

3. Section 24 of the Housing (Scotland) Act 1987, as amended, defines homelessness for the purposes of the Act as follows. A person is homeless if he/ she has no accommodation in the UK or elsewhere. A person is also homeless if he/ she has accommodation but cannot reasonably occupy it, for example because of a threat of violence. A person is potentially homeless (threatened with homelessness) if it is likely that he/ she will become homeless within two months. A person is intentionally homeless if he/ she deliberately did or failed to do anything which led to the loss of accommodation which it was reasonable for him/ her to continue to occupy.

4. Section 25 of the Housing (Scotland) Act 1987, as amended, defines the categories of household regarded as having a priority need for accommodation. Further details can be found in the Code of Guidance on Homelessness. This is available on-line at: http://www.scotland.gov.uka76747a0-efcd-4a2e-9551-9e3e66d60bc7.

5. The Housing (Scotland) Act 2001 amends the 1987 Act and requires councils to provide a minimum of temporary accommodation, advice and assistance to all applicants assessed as homeless, regardless of whether they have been assessed as being in priority need. The Homelessness Etc (Scotland) Act 2003 is more long-term in scope, notably introducing a phasing out of the distinction between priority and non-priority applications, and enabling the suspension of the test of local connection. The ultimate aim of the Act is to ensure that everyone assessed as being unintentionally homeless is entitled to settled accommodation by 2012.

6. A local authority's duty to homeless households can be summarised as follows:-

Unintentionally homeless and in priority need

Provide temporary accommodation until permanent accommodation has been secured. Permanent accommodation is defined as:

• A Scottish Secure Tenancy (SST)
• A Scottish Assured Tenancy (not a Short Scottish Secure Tenancy)
• If the applicants has previously been evicted for anti-social behaviour in the last 3 years, or if they are subject to an anti-social behaviour order - a short SST can be offered.

In some circumstances, the local authority can provide non-permanent accommodation. These circumstances are laid out in the Homeless Persons (Provision of Non-permanent Accommodation) (Scotland) Regulations 2010

Under certain circumstances, a local authority may apply a local connection test and refer the applicant to another local authority. However, the receiving local authority must then secure permanent accommodation for the applicant.

Intentionally Homeless and in Priority Need, / Homeless and not in Priority Need
Provide temporary accommodation for a reasonable period of time, advice and assistance.

Potentially homeless, unintentionally so and in Priority Need
Take reasonable steps to secure that accommodation does not cease to be available.

Potentially homeless, intentionally so and in Priority Need / Potentially Homeless and not in Priority Need
Provide advice and assistance to help retain accommodation

7. The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2004 came into force on 6 December 2004, and is intended to prevent the routine use of unsuitable temporary accommodation for households with family commitments. Under this Order, local authorities cannot put households with children and pregnant women into temporary accommodation which is not suitable, unless exceptional circumstances apply. Unsuitable accommodation is defined in the Order as accommodation which does not meet standards relating to the physical properties of the accommodation (the physical standard), its proximity to health and education services (the proximity standard) and its suitability for use by children (the safety standard).

8. While the Order provides for exceptional circumstances in which accommodation which does not meet the physical and/or proximity standards may be used, the safety standard must always be met. Further details can be found in the Code of Guidance available on-line at: http://www.scotland.gov.uka76747a0-efcd-4a2e-9551-9e3e66d60bc7.

9. Section 11 of the Homelessness etc (Scotland) Act 2003, which came into force on 1 April 2009, aims to assist local authorities to prevent homelessness. The legislation requires landlords and creditors to inform local authorities when they raise proceedings for possession of a property or serve certain other notices which would put the household at risk of homelessness due to eviction.

10. Not all section 11 notices will lead to eviction. The requirement on landlords and creditors in section 11 aims to ensure that, at an early stage, local authorities are alerted to households at risk of homelessness due to eviction or property repossession. Local authorities may be able to respond on an individual basis to prevent homelessness occurring, and use the information in the notices to help inform strategic planning within homelessness services and of prevention activity across a range of services and assist those facing the threat of homelessness.