Social housing allocations in Scotland: practice guide

5. Unsatisfactory Housing Conditions and Other Possible Needs Groups

This section covers some of the more frequently used categories for awarding a level of housing priority through an allocation policy, except for health and disability needs.

By working through this section readers will:

• understand when a property is below tolerable standard and know about the repairing standard.
• know the definition of overcrowding.
• understand the case for giving priority to victims of domestic abuse and other forms of abuse or harassment.
• be aware of when accommodation may be insecure.
• understand the case for giving priority to those who have been looked after by the care system, kinship carers, foster carers and those adopting.
• understand the case for giving priority to those leaving the armed forces.

There is a range of housing needs which landlords include within their allocation policy. Landlords should decide which of these housing needs are appropriate to the context in which they are allocating homes. The housing needs covered here are examples and landlords do not have to include any or all of them. Equally, they can include other types of housing need if appropriate, justifiable and clearly set out in their allocation policy.

Please note that health and disability needs, which would be likely to be given priority within any allocation policy, are covered in Section 6.

5.1 Property condition

The tolerable standard sets out the basic requirements for a healthy safe home. It applies to all tenures and is as defined by section 86 of the 1987 Act and amended by section 102 of the 2001 Act and section 11 of the Housing (Scotland) Act 2006. The tolerable standard is under review and landlords should note any changes to the standard in developing and applying their allocation policy.

A house meets the current tolerable standard if it:

• is structurally stable;
• is substantially free from rising or penetrating damp;
• has satisfactory provision for natural and artificial lighting, for ventilation and for heating;
• has satisfactory thermal insulation;
• has an adequate piped supply of wholesome water available within the house;
• has a sink provided with a satisfactory supply of both hot and cold water within the house;
• has a water closet or waterless closet available for the exclusive use of the occupants of the house and suitably located within the house;
• has a fixed bath or shower and a wash-hand basin, each provided with a satisfactory supply of both hot and cold water and suitably located within the house;
• has an effective system for the drainage and disposal of foul and surface water;
• in the case of a house having a supply of electricity, complies with the relevant requirements in relation to the electrical installation for the purposes of that supply;
• has satisfactory facilities for the cooking of food within the house; and
• has satisfactory access to all external doors and outbuildings.

A property is below tolerable standard if one or more of the criteria set out above are not met. If evidence is not already available, landlords may want to bring in the local authority's Environmental Health Service to assess whether the property meets the tolerable standard. If a property is below tolerable standard the local authority may contact the owner and ask for repairs or work to be carried out on their property. However, while a property remains below tolerable standard any applicant should be given reasonable preference.

In addition to the tolerable standard, a repairing standard applies to private rented sector tenancies. It places a duty on private landlords to repair and maintain their property. On becoming aware of a defect, private landlords must complete necessary work within a reasonable time. If they do not, or there is disagreement about whether or not there is a problem, tenants have the right to refer the matter to the Housing and Property Chamber First Tier Tribunal for Scotland. The Tribunal has power to require a landlord to carry out work necessary to meet the standard. Further information on the repairing standard is available for the Scottish Government's website at: /publications/repairing-standard/

Further information on the Tribunal can be found on the Housing and Property Chamber website at: https://www.housingandpropertychamber.scot/

Landlords could consider giving priority to private rented sector tenants whose current home does not meet the repairing standard and until such a time as any problems are resolved. An additional approach would be to ensure that the private rented sector tenant receives the necessary advice and support if a case needs to be taken to the Tribunal.

5.2 Overcrowding

Part VII of the 1987 Act defines "overcrowding". When the number of people sleeping in a home exceeds the room standard or the space standard (both of which are set out below) a house is overcrowded.

Under the room standard, if the number of people sleeping in the house and the number of rooms available as sleeping accommodation (that is rooms normally used in the locality as a bedroom or living room) mean that two people of the opposite sex have to sleep in the same room then the accommodation will be overcrowded unless:

• the two people are living together as husband and wife; or
• one or both of them is under 10-years old.

The space standard determines the number of people who are permitted to sleep in a home based on:

• the number of rooms available as sleeping accommodation. Rooms that are counted are rooms normally used in the locality as a bedroom or living room;
• the size of those rooms. Rooms under 50 square feet (4.645m²) are ignored; and
• the ages of people who live there. Children under one-year old are not counted and children over one and under 10 count as a half.

Landlords can calculate the permitted number of people in a property by looking at both of the tables below. Table 1 sets out how many people can sleep in the house according to the number of rooms. Table 2 set out how many people can sleep in each room according to the size of the room and the total for each room, when added together, tells you how many people can sleep in the house. Landlords need to look at both tables and the smaller of the two numbers produced is the permitted number of people that may live in that house. If the permitted number is exceeded, the house is overcrowded.

Table 1: How many people can sleep in the house according to the number of rooms.

Number of rooms available for sleeping	Number of people who can sleep in the property
1	2
2	3
3	5
4	7 ½
5 or more	2 for each room

Table 2: How many people can sleep in each room according to the size of the room

Floor area of room	Number of persons who can sleep there
110 sq. ft or more (10.219m2)	2
90 sq. ft (8.361m2) or more but less than 110 sq. ft	1 ½
70 sq. ft (6.503m2) or more but less than 90 sq. ft	1
50 sq. ft (4.645m2) or more but less than 70 sq. ft	½

While the law sets out the minimum standards needed to prevent overcrowding, in practice, landlords can set more generous standards of their own.

In deciding on levels of priority under their policy, landlords may wish to give a higher level of priority to those who are overcrowded by two or more bedrooms than to those overcrowded by one bedroom.

5.3 Domestic abuse

Information Point

The foreword of Equally Safe: Scotland's Strategy to prevent and eradicate violence against women and girls, states that "Violence against women and girls, in any form, has no place in our vision for a safe, strong, successful Scotland. It damages health and wellbeing, limits freedom and potential, and is a violation of most fundamental human rights."

The Strategy's third priority is that: "Interventions are early and effective, preventing violence and maximising the safety and wellbeing of women, children and young people." The nationally agreed definition of domestic abuse is:

Domestic abuse (as gender-based abuse), can be perpetrated by partners or ex partners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviour such as isolation from family or friends.

The Equally Safe Delivery Plan states that:

"It is vital that those in housing services coming into contact with those who have experienced gender-based violence can offer an appropriate, safe and consistent response."

The Equally Safe Delivery Plan is available at: /publications/equally-safe-delivery-plan-scotlands-strategy-prevent-violence-against-women/

The full Strategy is available at: /policies/violence-against-women-and-girls/equally-safe-strategy/

Further information on domestic abuse is available from a range of sources including Scottish Women's Aid http://womensaid.scot/, Police Scotland http://www.scotland.police.uk/keep-safe/advice-for-victims-of-crime/domestic-abuse/ and the Housing Rights Information website at: http://www.housing-rights.info/scotland-ha-domestic-abuse.php.

Given the clear national focus on tackling domestic abuse, landlords will want to include domestic abuse as a specific housing needs group. In framing their approach, they may find it helpful to refer to The Domestic Abuse (Scotland) Act 2018. Available at: http://www.legislation.gov.uk/asp/2018/5/part/1/enacted

In terms of the priority given, landlords should consider giving a high level of priority to anyone who is experiencing domestic abuse. This represents a critical housing need, with the victim and any children potentially being at severe risk. Housing need is likely to continue to be significant when someone has left their home because of domestic abuse and has not approached statutory homeless services. The approach and level of priority should enable the victim to avoid approaching statutory homeless services if that is their choice.

In developing the specifics of their approach, landlords should work in partnership with Scottish Women's Aid and/or their local Women's Aid group and others in the local authority and voluntary sector who are working with people experiencing or who have experienced domestic abuse. This will help ensure that policy and practice that is appropriate to the local context and supports an appropriate, safe and consistent response.

Fife Council - Women experiencing domestic abuse

A case management approach is taken if someone who approaches Fife Council discloses that they are experiencing domestic abuse.

Regardless of how someone first gets in contact, they are offered an appointment with one of the Council's Housing Access Officers. This appointment is to provide in-depth housing advice on all the housing options available to the applicant, including options to remain at home or access to temporary accommodation.

A discussion takes place around the requirement for support and a referral can be made to agencies where appropriate. The Housing Access Officer will award urgent housing points to those who wish to join the Fife Housing Register.

The Housing Access Officer will then carry out a 12-week review to ensure circumstances have not changed. The review process will then continue until the applicant is either rehoused or their housing need has otherwise been resolved.

The victim may prefer to stay in their home and there may be circumstances under which the perpetrator could be required to leave or not return to the home. This will depend on occupancy rights.

For example, if they are married to or in a civil partnership with the perpetrator, the victim has an automatic right to stay in the home. If the victim is the sole owner or tenant, the perpetrator has no legal right to stay in the home. If the victim is not the sole or joint owner or tenant, then they do not have automatic occupancy rights, but they do have the right to go to court to get occupancy rights granted for six months at a time. They can then apply for an exclusion order against the perpetrator. Further information can be found on the Scottish Women's Aid website at: http://womensaid.scot/information-support/domestic-abuse-and-my-rights-2/

However, if the victim would prefer to move home or has already left the home and does not wish to return, landlords should still consider them to be eligible for any domestic abuse-related housing priority.

Landlords will need to make sure that staff who come into contact with applicants and tenants recognise and know how to respond appropriately to cases of domestic abuse. Landlords should consider designating a specific member of staff who is trained, understands the issues around domestic abuse and can act as a referral point for colleagues.

There are key things landlords need to remember when dealing with applicants who are victims of domestic abuse:

• safety: the safety of the applicant should be paramount. The applicant should be signposted to agencies that can assist in providing them with a place of safety where necessary; and
• confidentiality: this is crucial to the safety of the applicant. Landlords should never contact the alleged perpetrator nor ask them to corroborate the applicant's version of events.

These basic principles also apply to applicants who are victims of other forms of abuse and harassment (see below).

It is also important to remember that domestic abuse can be difficult to evidence. Landlords should never discourage people from applying, or risk not awarding priority, because they require evidence.

5.4 Other abuse or harassment, including antisocial behaviour

Harassment and abuse can take many forms, it can be verbal or physical and at its most acute, life threatening. Types of abuse and harassment landlords may want to consider are:

• racial harassment;
• religious or sectarian harassment;
• homophobic harassment;
• transphobic harassment;
• harassment of autistic people and people with a learning or physical disability; and
• sexual harassment.

Antisocial behaviour refers to a wide range of actions and behaviours. It can also be a form of abuse or harassment. Schedule 2 of the 2001 Act defines antisocial behaviour (in relation to grounds for eviction) as an action or course of conduct which causes or is likely to cause alarm, distress, nuisance or annoyance. The focus is on the alarm or distress that is caused to another individual. How landlords deal with antisocial behaviour should be set out in their antisocial behaviour strategy or policy.

Allocation policies should set out clearly what degree of priority landlords will give to different levels of abuse, harassment and antisocial behaviour and when rehousing is being considered. Landlords should consider awarding victims a sufficient priority to allow them to be re-housed quickly. This will be particularly important if the victim is living with, or within in close proximity to, the perpetrator(s).

Landlords need to make sure that staff who deal directly with applicants and tenants recognise and know how to respond appropriately to cases of abuse, harassment and antisocial behaviour.

5.5 Insecure accommodation (other than statutorily homeless)

Landlords may consider giving a level of priority to applicants who have insecure housing circumstances but who have not applied through the statutory homeless route or who would not yet be considered to be statutorily homeless. In many cases this type of priority can help avoid applicants needing to approach statutory homeless services to find housing in future.

The types of situations under which insecure accommodation priority might apply would include:

• having been served a Notice to Leave for a private tenancy.
• living in tied accommodation and being required to leave because of retirement or redundancy.
• being served a repossession notice on an owner-occupied home.

This type of priority would usually only be given if the applicant is not responsible for their accommodation being at risk. For example, where someone is losing their private tenancy because of their antisocial behaviour or rent arrears, landlords may choose not to award priority.

Landlords might also wish to give priority to applicants who will be leaving their current accommodation in a planned move. This might include people who:

• will be moving on from supported accommodation.
• will be released from prison and have no home to which they can return. Landlords may wish to award a level of priority as the time to move on approaches. For example, they might wish to award prisoners priority around 12 weeks before their liberation date. Landlords should refer to the Scottish Quality Standards - Housing advice, information and support for people in and leaving prison, known as the SHORE Standards. They can be found at: http://www.sps.gov.uk/Corporate/Publications/Publication-5363.aspx
• will be leaving the Armed Forces and required to leave Service accommodation.

If landlords do not choose to award a level of priority for allocations to these groups, they should develop and have in place a housing protocol which sets out how they will assist people leaving supported accommodation, prison or Service leavers into a home of their own.

5.6 Social, community or family support

There is a clear case for giving some level of priority to applicants who are looking for a move to give or receive support. Enabling someone to receive the support they need may allow them to continue living independently and prevent the need for a move into residential or specialist accommodation.

If a landlord chooses to reflect this housing need in its allocation policy, it will need to set its own definition. In developing the definition, a landlord may consider:

• whether it wants to give priority to those needing to move to give, as well as receive, support?
• whether it requires applicants to be looking for a move within a set distance or travel time from the person to whom they will be giving, or from whom they will be receiving, support? If so, what distance or travel time would be appropriate to their context?
• whether it wishes to take the amount of support being given or received into account? For example, does it matter how frequently someone gives or receives support and how many hours of support they give or receive?

In addition to giving or receiving the type of support that might allow someone to remain living independently, someone might be looking for a move that gets them closer to a particular community or services.

Landlords may also wish to consider giving a level of priority to people who would like to live closer to community-based health or support services they use on a very regular basis. For example, someone who makes frequent visits to a community-based health or support service, such as an addictions rehab service, may find it easier to stay in touch if they live close to the services they use.

It is up to each landlord to decide what sort of evidence or validation it will seek in relation to social, community or family support. However, landlords are likely to need to accept written confirmation from those giving and/or receiving support or looking for a move for community or service-related reasons, as sufficient.

5.7 Being/having been looked after by the care system

As part of their wider role in supporting a smooth and supported transition from the care system to a home of their own, landlords will want to consider awarding priority to looked after young people.

Information Point

The Children and Young People (Scotland) Act 2014 introduced corporate parenting duties and responsibilities for the public bodies defined as corporate parents. These include all local authorities. A good corporate parent will want the best outcomes for their looked after children, accept responsibility for them, and make their needs a priority.

At the heart of corporate parenting are the formal and local partnerships between all services responsible for working together to meet the needs of looked after children, young people and care leavers. Further information on corporate parenting and training is available on the Who Cares? Scotland website at: http://www.corporateparenting.org.uk/ and Scottish Ministers' first report to Parliament on corporate parenting activity across Scotland can be viewed at: /publications/report-corporate-parenting-turning-legislation-practice-together/

Where landlords are considering giving a level of priority to this group of young people aged 16 or over, they will want to work closely with key local services, including Local Authority Children's and Young People's services, to develop a joint approach which meets the needs of this potentially very vulnerable group. In particular, landlords will want to ensure that all the necessary support is in place to help each young person sustain their tenancy.

Practice example - Young care leavers, West Dunbartonshire Council

West Dunbartonshire Council gives priority need and a direct route into a tenancy for young people leaving care. Young care leavers are any looked after or accommodated child from the age of 18 right up until their 26th birthday.

The Council uses percentage allocation quotas and young care leavers will be given a 2% quota of lets. This percentage can be altered in line with need and demand after a yearly allocation policy review.

Each care leaver will have a plan which sets out how they will access a secure tenancy and the Council's Throughcare Team will work with them up until their 26th birthday.

The aim of this policy is that no young care leaver in West Dunbartonshire will need to approach statutory homeless services to find housing when leaving care.

Irrespective of whether a landlord gives priority to young care leavers under its main allocation policy, it should be working to a joint protocol on housing young people leaving care. This protocol should set out the joint working arrangements in each area. If landlords are not giving priority under their main allocation policy, the protocol should also set out the basis on which social landlords will make tenancies available for young people leaving care.

5.8 Kinship carers, foster carers and those adopting

Information Point

Kinship care is when a child is looked after by their extended family or close friends if they cannot remain with their birth parents.

Under the Looked After Children (Scotland) Regulations 2009, a kinship carer is defined as "a person who is related to the child (through blood, marriage or civil partnership) or a person with whom the child has a pre-existing relationship".

Kinship care includes both:

• looked after children who have been placed with kinship carers by the local authority.
• non-looked after children who live in an informal kinship care arrangement (these children may be subject to an order under Section 11 of the Children (Scotland) Act 1995 or may be living in a completely private arrangement with extended family, with no local authority involvement).

Landlords should consider giving a level of priority to those who have been approved for adoption, are approved for fostering or for kinship carers who will be in housing need if a child or children came to live with them. They should work with their local Children's and Young People's Servcies to decide at what stage it is appropriate to decide whether additional bedrooms are required.

Housing need would be assessed based on their current home. So, for example, if someone has been approved to adopt but does not have sufficient bedrooms to accommodate their new family, a landlord could consider them to be overcrowded. Landlords should also give serious consideration to giving an additional priority based or adoption, fostering or being a kinship carer.

Even if a landlord decides not to give additional priority to kinship carers, foster carers and those adopting with a housing need, it should consider the size of home the household will need. For example, the landlord might assume that a fostered or adopted child is already part of the household when deciding on the number of bedrooms required.

5.9 People leaving the armed forces

Information Point

The Armed Forces Covenant, which all Scottish local authorities have pledged to uphold, states that "Those who serve in the Armed Forces, whether regular or Reserve, those who have served in the past, and their families, should face no disadvantage compared to other citizens in the provision of public and commercial services." In practice this means that Service personnel or ex-Service personnel should not be disadvantaged in accessing social housing, because of their Service.

Former Service personnel and their families can face particular housing challenges as they leave the Armed Forces. Having lived in Ministry of Defence housing in a variety of locations during their career they may not have strong links with any particular area.

The Scottish Government is committed to good housing outcomes for ex-Service personnel, and their families, and encourages landlords to consider their needs and respond appropriately. Further information is provided on the Scottish Government's website at: https://www.mygov.scot/veteran-housing/

The Housing (Scotland) Act 2010 removed the exemptions around local connection for homelessness so that employment and residence through the Armed Forces is equal to that of civilians for creating a local connection. Where landlords use local connection as part of an allocation policy, they should make sure it does not disadvantage ex-Service personnel. This is to ensure that ex-Service personnel are not at a disadvantage when applying for social housing due to Service time spent outwith an area.

Landlords should not refuse to consider an application simply because an applicant is living in suitable housing at the date of application. People in the Armed Forces should be encouraged to make a housing application well in advance of needing a new home.

In some cases, Service personnel may be leaving the Forces because of injury or disability and will require housing specifically adapted for their needs. Landlords should be ready to give special consideration to housing applications in these circumstances.

Landlords should also give special consideration to applications from those who leave the Armed Forces because of other exceptional circumstances. This could include applications from individuals whose spouse/civil partner is killed in action or dies before the date of discharge.

South Lanarkshire Council - People leaving the Armed Forces

In South Lanarkshire, to reflect the valuable contribution that armed forces personnel make to society, members of HM Forces who meet certain criteria are considered to have the highest priority for housing, along with homeless applicants and those with an urgent medical need. This has been the case since August 2010.

To receive this level of priority, HM Forces must have completed a minimum of three years' service or have been injured in action or have been discharged on medical grounds; and

• lived in South Lanarkshire immediately prior to commencing service; or
• whose partner is permanently resident in South Lanarkshire or previously lived in South Lanarkshire immediately prior to commencement of service marriage/relationship; or
• parents or kinship care are permanently resident within South Lanarkshire; or
• have an offer of full-time employment within South Lanarkshire.

The priority status is awarded up to six months prior to, and up to six weeks following, the date of discharge from the service (proof of discharge date/discharge certificate needs to be provided). The Council is currently consulting on a proposal to extend the period priority that status can be awarded after discharge from six weeks to six months.

To be awarded priority the applicant must make reasonable choices about where they wish to live and the type of property they wish to live in. They cannot be restrictive in their choices.

At the start of each financial year, letting targets are set against each of their four housing lists. The Urgent Housing Need list (where HM Forces are queued) currently received between 50-60% of all lets.

Key Points

Overcrowding and very poor property condition, as described by the tolerable standard, are longstanding elements of social allocation polices and are likely to remain so.

Given the clear national focus on tackling domestic abuse, landlords should consider including domestic abuse as a specific housing needs group. Domestic abuse is a pattern of controlling, coercive, threatening, degrading and/or violent behaviour, including sexual violence, by a partner or ex-partner.

There is also a range of harassment and abuse that landlords should take into account. For example, landlords may want to consider racial harassment, homophobic harassment, transphobic harassment and harassment of autistic people or people with learning disabilities.

There are groups of people who may have a particular housing need that could be recognised. These include young people leaving care, kinship carers, foster carers and those adopting and people leaving the Armed Forces.

Giving a level of priority to those with insecure housing circumstances could help prevent households needing to go down the homeless route, Equally, priority for giving or receiving support could help people to continue to live independently.