This is the fourth and final post in my series of posts on the new Housing (Scotland) Bill. My first post looked at the overall context and the rent provisions. My second post considered evictions. The third post covered the other miscellaneous residential tenancy reforms. This fourth post considers the homelessness provisions.
In my first blog post, I explained that homelessness law – being the body of law that operates when someone lacks a place where they can legally stay (or those threatened with the prospect of that scenario in the near future) and allows them to present to a local authority (aka a council) so as to be afforded temporary and then permanent accommodation – is largely governed by the Housing (Scotland) Act 1987 (and also some regulations). That legislation will continue to apply after the passage of the new Bill, as modified by the new Bill.
Part 5 of the new Bill is headed “Homelessness prevention”. It is not technically divided into chapters, although it has three headings for the topics it covers: Duties of relevant bodies; Assessment of housing support services; and Tenants affected by domestic abuse.
The new Bill follows on from various bits of groundwork, as digested on the website of the preceding consultation: Prevention of Homelessness Duties – A Joint Scottish Government and COSLA Consultation.
Before turning to the Bill’s homelessness provisions, I’ll highlight some specific reactions to them.
Reaction to the proposed homelessness law reforms
Back in my first blog post, I shared a link to Homeless Network Scotland’s news item. This item from a registered Scottish charity stated the Bill’s publication was a “landmark moment for homelessness prevention”, and noted the measures in the Bill would be welcome at any time (before adding they were an “urgent necessity” in the midst of a housing and cost-of-living crisis). To this, it is worth adding the reaction of Crisis Scotland (the Scottish arm of the British charity Crisis UK). In a post by Maeve McGoldrick (Head of Policy and Communications for Crisis Scotland), she noted that it was “amazing to finally see the Bill introduced” (given they have been calling for new homelessness prevention-type legal duties for years).
What is it that these bodies are so receptive of? Homeless Network Scotland explain that the new “Ask and Act” duties make preventing homelessness a shared responsibility across the public sector. This is to allow a shift from what they call crisis intervention – i.e. only intervening when someone pitches up to their local authority as homeless (or imminently to be so) – towards prevention. As we shall see, the Bill does this by obliging appropriate bodies in the public sector or exercising a social function (such as health boards, Police Scotland, and registered social landlords) to inquire after the people they interact with as to their housing situation at opportune moments and then take action to prevent homelessness should that need arise.
Duties of relevant bodies
Section 41 of the new Bill is headed “Duties of relevant bodies in relation to homelessness”. All of its substantive effect comes about through amending the Housing (Scotland) Act 1987. The headline news about this section is indeed the “Ask and Act” duties, although I’ll work through its provisions roughly in the order they appear.
Being threatened with homelessness (and related local authority duties), applications in respect of a person, and references to another local authority
Subsection (2) of section 41 makes two changes. One of these changes is an important widening of the time period in which someone is categorised as being threatened with homelessness. When this provision of the new Bill is implemented, a prospect of not having a place where you can legally reside (along with the rest of your household) within six months will be enough to be technically in peril of homelessness. This is an increase from the current two months, and even that was an increase of the initial one month. For comparison, the period is eight weeks in England.
The second change in subsection (2) (and a further related amendment in subsection (3)) relates to the new possibility of someone other than the affected person making a homelessness application to a local authority. It will still be possible for someone to apply directly, but now the relevant bodies charged with asking and acting will also be able to make a referral in respect of a person.
Next comes a change to section 32 of the 1987 Act, which is an active provision obliging local authorities to act with regard to the soon to be widened category of persons threatened with homelessness. First, where a local authority is not satisfied that someone has intentionally brought their predicament upon themselves (intentionality being something a local authority might investigate as they see fit), the local authority duty is to take reasonable steps to: (a) remove or, where this is not possible, minimise the threat of homelessness to the applicant; and (b) secure that accommodation is available for occupation by the applicant. This is a change from the current duty to take reasonable steps to secure that accommodation does not cease to be available for occupation.
The duty for securing that accommodation is available for occupation is augmented by a further provision that provides the local authority must take reasonable steps: (a) to secure that the accommodation occupied by the applicant when the application is made continues to be available to them; and (b) only if that accommodation will not continue to be available for occupation by the applicant, to secure that other accommodation is available for occupation by the applicant. There is also a further duty on the local authority to give applicants unintentionally threatened with homelessness advice and assistance where the local authority considers it appropriate to: (a) remove or minimise that threat; or (b) secure that accommodation is available for occupation by the applicant (on a continuing basis or otherwise).
A final “threatened with homelessness” tweak in the new Bill changes what is currently section 32(3), which relates to the duties owed to those who are threatened with homelessness owing to their own wilful creation of that situation. I won’t go into intentionality in great detail here as it is quite a big deal in homelessness law jurisprudence. Suffice it to say in this situation the duty is changed from simply providing advice and assistance to secure that accommodation does not cease to be available for occupation by such a person, to a duty targeting that accommodation continues to be, or is otherwise, available for occupation by the applicant.
Next, there is a change relating to referrals between local authorities. Where it applies, section 33 of the 1987 allows a local authority to pass a homelessness applicant to another local authority that the applicant has a local connection to.
This ability to refer was recently suspended (but not permanently repealed) within Scotland by the Homeless Persons (Suspension of Referrals between Local Authorities) (Scotland) Order 2022 (SSI 2022/356). It is still competent for a Scottish local authority to refer an applicant to a local authority in England and Wales, but not to another Scottish local authority (so the team at Dumfries and Galloway Council could refer an applicant to an equivalent team in Cumbria, but not to an equivalent team in South Ayrshire).
These new reforms allow for applications to be made on behalf of someone by relevant bodies (full details about them below). It might have been a nice question of law as to whether an English or Welsh authority could have shrugged their shoulders in bemusement had a Scottish authority tried to pass such an indirect case to them under the new regime. The matter is put beyond doubt by a new subsection (7) in section 33 of the 1987 Act, clarifying that a Scottish local authority cannot boot such an application south of the border where the application is made in respect of a person by a relevant body. As explained in the Explanatory Notes (at paragraph 121) this will avoid extending the existing duty on English and Welsh local authorities (found in section 34(2) of the 1987 Act).
Duties of relevant bodies in relation to homelessness (aka “Ask and Act”)
As noted, there is to be a new a duty on certain public sector bodies to ask people about their housing situation at an opportune moment and then take action to prevent homelessness should that need arise.
All of this is catered for in terms of new sections 36A to 36D plus some new definitions in section 43 of the 1987 Act. New section 36A provides as follows:
If a relevant body, when assessing the needs of a person in the exercise of its functions, has reason to believe that the person may be homeless or threatened with homelessness, the body must ask the person:
(a) whether the person is homeless or threatened with homelessness,
(b) whether the person is aware of any application under section 28(1) having been made by or in respect of the person and, if so, to give the name of the local authority to whom the application was made, and
(c) whether the person consents to the relevant body making such an application if the relevant body were to be satisfied that it is appropriate.
The relevant bodies are:
- Health Boards and Special Health Boards;
- Integration joint boards (in terms of the Public Bodies (Joint Working) (Scotland) Act 2014);
- Local authorities;
- Police Scotland
- Registered social landlords (aka housing associations); and
- Scottish Ministers (in their capacity relating to prisons and young offenders institutions and those persons detained in such places).
Yes, I had to look up what integration joint boards are too.
This list can be amended by regulations.
Of those bodies, perhaps two will require special consideration, namely local authorities and registered social landlords. This is owing to the fact that councils and RSLs can be the landlord of someone who may face homelessness and might even face that prospect as a result of their actions whilst wearing a different metaphorical hat. This has been an issue for many years: oversimplified, consider the council department that seeks to evict someone from a council house at the sheriff court for a valid reason, and the other council department who has to pick up the pieces. One imagines this is something that will need to be catered for in the Code of Guidance on Homelessness (last updated in 2019: this is perhaps due for a refresh anyway, given recent reforms in relation to local connection referrals).
That point about those relevant bodies aside, if any relevant body is informed someone they have asked is homeless or if they have any other reason to believe that the person may be homeless, the relevant body must make an application under section 28(1) to the appropriate local authority in respect of the person where the relevant body is satisfied certain parameters are met and that there is nothing to disapply that duty. Such an application need only be made if the relevant authority is satisfied: (a) it is appropriate to make the application taking account of the person’s circumstances; and (b) it has the consent of the person to make the application. From the other perspective, the duty does not apply if the relevant body is satisfied that an earlier application is already in play and under consideration for that person.
A slightly different duty arises where a relevant body is is informed someone they have asked is threatened with homelessness or if they have any other reason to believe that may be the case. The first step in such a circumstance is for the relevant body to take any action it considers appropriate in the exercise of its functions and in cooperation with any other relevant body to remove the threat of homelessness to the person where that is possible or, where that is not possible, to minimise the threat. The second step is to make a homelessness application for that person, but this step is only needed where a relevant body is unable to remove or minimise the threat (and also the same parameters are in play for someone who is actually homeless, namely that it is appropriate and they have consent from the person, plus no existing application is in play).
The final relevant body duty stems from new section 36D, which is headed “Duty to have regard to matters relating to homelessness”. This provides that a relevant body must functions, have regard to the need to prevent homelessness and also (more specifically) any guidance issued by the Scottish Ministers in connection with homelessness that is relevant to the exercise of its functions.
Assessment of housing support services
The shortest topic in Part 5 of the new Bill is the “Assessment of housing support services” which is covered in section 42 of the new Bill. Short as this section alone may be, this does not mean it is easy to explain its effects. To do so necessitates some jumping around various statutes and regulations, which may add to the argument in favour of consolidation of homelessness provisions that I alluded to in the first of these posts. What follows here is me making sense of it all, rather than any comment as to the merits of what is happening.
Section 42 amends section 89 of the Housing (Scotland) Act 2001, and that section is headed “local housing strategies”. Section 89 of the 2001 Act does indeed relate to local housing strategies, being something a local authority has to produce when this is requested by Ministers. It also relates to something else that Scottish Ministers can ask of them, being an assessment of housing provision and related services in the relevant area, and it is the wording around that which is amended.
As things stand, such an assessment is, sure enough, to consider housing provision and the provision of related services in that local authority area. Section 89 does however clarify that this is to include in particular the following five considerations:
- the nature and condition of housing stock;
- the needs of persons there for housing accommodation;
- the demand for, and availability of, housing accommodation;
- the needs of persons in the area for, and the availability of, housing accommodation designed or adapted for persons with special needs; and
- any other matter specified by Ministers.
To this, a further particular consider is to be added: “the needs of persons in the area for, and the availability of — (i) services that must be provided in accordance with section 32B(4) of the 1987 Act, and (ii) other housing support services (as defined by section 91(8))”.
The Explanatory Notes helpfully signpost that the section 32B(4) services that must be provided are specified in the Housing Support Services (Homelessness) (Scotland) Regulations 2012 (SSI 2012/331). This means the following services (where they are relevant to enabling a person to occupy, or to continue to occupy, residential accommodation as their sole or main residence)—
- advising or assisting a person with personal budgeting, debt counselling or in dealing with welfare benefit claims,
- assisting a person to engage with individuals, professionals or other bodies with an interest in that person’s welfare,
- advising or assisting a person in understanding and managing their tenancy rights and responsibilities, including assisting a person in disputes about those rights and responsibilities,
- advising or assisting a person in settling into a new tenancy.
The other “housing support services” referred to take us to has a definition of sorts in section 91(8) of the 2001 Act, in that it “includes any service which provides support, assistance, advice or counselling to an individual with particular needs with a view to enabling that individual to occupy, or to continue to occupy, as the person’s sole or main residence, residential accommodation other than excepted accommodation”. Excepted accommodation is defined in regulations from 2002.
In short, the reform in section 42 means that various support services – that might stop someone from becoming homeless in the first place – now need to be considered when a local authority is assessing housing provision and related services.
Tenants affected by domestic abuse
Sections 43-45 of the new Bill address various domestic abuse-related issues for social tenants (or would-be tenants). Section 43 does this by amending the 1987 Act, whereas sections 44 and 45 amend the 2001 Act.
As covered in the Explanatory Notes (at paragraph 128), section 20 of the 1987 Act provides that a social landlord must secure that when selecting tenants for its housing a reasonable preference is given to certain persons, including homeless persons and persons threatened with homelessness. In section 20 there are also certain things that a social landlord must not take account of when someone applies to them, and this can include the ownership/value of any immoveable property owned by the applicant (or any of their household). This is the case where it is probable that occupation of such immoveable property will lead to abuse of the applicant from someone residing there (or from someone who previously resided with the applicant). Section 43(2) of the Bill amends this so that it only has to be probable that occupation of the property will lead to abuse (i.e. it doesn’t matter who the author of the abuse may be).
Also changed by section 43 are two provisions of the homelessness regime in the 1987 Act. Section 24(3) currently provides that a person is homeless if the person has accommodation but it is probable that occupation of it will lead to abuse including from someone who previously resided with the person. Section 33(3) sets out the circumstances when someone runs the risk of domestic abuse such that a local authority cannot refer them to another local authority owing to that (namely the risk of abuse from a particular person). These sections are also amended to simply refer to abuse and remove reference to the author of that.
A further change relates to the meaning of “abuse” in these contexts. This term is extended to include domestic abuse by a partner or ex-partner within the meaning of section 2 of the Domestic Abuse (Protection) (Scotland) Act 2021.
Section 44 of the new Bill is headed “Social landlords: pre-action requirement where domestic abuse is a factor in rent arrears”. This section amends the regime around recovery of possession in the social sector, a regime that begins at section 14 of the 2001 Act. Social landlords must serve a notice on the tenant specifying the ground on which recovery of possession proceedings are raised and, where such proceedings relate to rent arrears, no notice can be served unless the landlord has complied with pre-action requirements in section 14A of the 2001 Act.
Section 44 introduces a new pre-action requirement into section 14A, which applies where a social landlord considers that a tenant has experienced or is experiencing domestic abuse and that this explains or partly explains the arrears. In these circumstances the landlord must (a) take such action to support the needs of the tenant arising in connection with the rent arrears as the landlord considers reasonable having regard to its domestic abuse policy under section 56A [see below], and (b) provide the tenant with details of such other support that may be available to the tenant in relation to domestic abuse as the landlord considers appropriate in the circumstances.
Finally, section 45 of the new Bill (headed “Social landlords: policies about supporting tenants affected by domestic abuse”) inserts a new section 56A to the 2001 Act. This section provides that each social landlord must prepare a “domestic abuse policy” explaining how it will exercise its functions in relation to the needs of tenants who the landlord has reason to believe are affected by domestic abuse with a view to preventing homelessness. This policy must, in particular, include a description of the action that the landlord must take in relation to the needs of a tenant in the circumstances mentioned in the previous paragraph. A social landlord must have regard to its policy under section 56A when exercising its functions and any related guidance issued by the Scottish Ministers.
Conclusion
From my academic lawyer perspective, I don’t really have too much to say about the homelessness provisions of the Bill. They seem laudable and could help to address homelessness at source, whilst also making a difference to tenants with particular problems relating to domestic abuse. Whether they do, that’s more for people with different specialisms from me to comment on, either as the Bill progresses through Parliament or in the years to come.
Assuming they do pass as currently framed, they don’t really change what is justiciable, and (assuming the Bill passes without many amendments) the two key updates for my Housing Law notes for next year in this context are essentially limited to when someone is threatened with homelessness, and what a social landlord needs to do before they can raise eviction proceedings for rent arrears.
As an aside, anyone who has a grumble about what a local authority or indeed a relevant body has done is presumably stuck with the unattractive prospect of a judicial review if they really want to hold someone to account. This strikes me as a missed opportunity.
Okay, that really does conclude my coverage of the Housing (Scotland) Bill. I hope this has been a useful series of blog posts. I would be very keen to hear from anyone else with their thoughts on the Bill, and particularly about my thoughts on the Bill.
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