Standard of temporary accommodation

The courts have indicated that temporary accommodation can be of a lower standard than permanent accommodation. [1] However, there have been a number of changes made to legislation since this decision was made.

The accommodation should not be statutorily overcrowded [2] and should meet the Tolerable Standard.

Any temporary accommodation provided to someone who has a protected characteristic under the Equality Act 2010 might be open to challenge if it does not meet that person’s needs.

In any decision being made by a local authority exercising its duties under the homeless legislation the Public Sector Equality Duty applies. In an English case the decision maker was required to have a 'sharp focus' to the aspects of the duty and the following steps were required: [3]

• to recognise where the applicant has a disability

• to focus on specific aspects of any impairments to the extent that are relevant to the suitability of accommodation

• to focus on any disadvantages the applicant might suffer when compared to a person without those impairments

• to focus on the accommodation needs arising from those impairments and the extent the accommodations meets those needs

• to recognise if the applicant’s particular needs might requirement them to be treated more favourably than a person without a disability

• to review the suitability of the accommodation paying due regard to these matters.

The above may also apply if adapted to meet other characteristics protected under the Equality Act.

From 6 May 2020 The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 applies to all households provided with temporary accommodation under s.29 of the Housing (Scotland) Act 1987 – the ‘interim duty' to accommodate. [4] Prior to this date, the legislation only applied to households with children or pregnant women.

Homeless households should not be placed in temporary accommodation that is 'unsuitable'. What might be unsuitable is listed further in the Order along with a number of exceptions. The regulations are legally binding and are intended to prevent the use of B&B and hotel accommodation.

Advisers should note: There are no longer any temporary exceptions related to the coronavirus outbreak in force.

Accommodation will be deemed 'unsuitable' under the Order if it does not meet the following standards: [5]

The basic standards

Accommodation is always unsuitable if it does not meet the 'basic standards'.[6] Accommodation is unsuitable when:

• it is not wind and watertight

• it is not suitable for occupation by homeless households, taking into account their needs

• it does not meet the minimum safety standards

A local authority cannot avoid complying with its duty for reasons such as a lack of available housing stock or reliance on third party providers. [7] 

The minimum safety standards cover health and safety, hygiene, fire, furniture and electrical equipment standards. Further details are covered in Annex A of the Homelessness: code of guidance.

There is no time limit, and no exceptions to the requirement to meet the basic standards above.

Location Standards

Subject to exceptions the accommodation is also 'unsuitable' if it does not meet the following ‘location standards’. These are if the accommodation: [8]

• is outwith the local authority area, and the household has not agreed to be accommodated there

• is not near schools or health facilities that are used or might reasonably be expected to be used by members of the family. These facilities should be accessible from the accommodation, taking account of the distance of the travel, by public transport or transport provided by the local authority

• 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

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. Local authorities should ensure that the facilities that 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.

Physical standards

In addition, and also subject to the exceptions, the accommodation must also meet the following ‘physical standards’. The accommodation will be 'unsuitable' if it: [9]

• lacks adequate bedrooms, toilet and personal washing facilities for the exclusive use of the household. These must all be accessible to the needs of the household

• does not have use of adequate and accessible cooking facilities and a living room These do not have to be for the exclusive use of the family

• is not usable by the household 24 hours a day

• 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

Advisers should note that a person can have parental rights, even without a formal or informal custody arrangement. This is a useful distinction to make when advocating for a client staying in temporary accommodation that is unsuitable for their children to visit.

Accommodation that does not meet the above location or physical standards will not be deemed 'unsuitable' in the following circumstances: [10]

• the applicant is homeless or threatened with homelessness as the result of an emergency such as fire or flood

• the local authority makes suitable accommodation available but the applicant wishes to stay in unsuitable accommodation

• the accommodation is a domestic abuse refuge

• the accommodation provides support services for health, childcare or welfare - for example, supported accommodation or addiction services

There is no time limit as to how long the accommodation may be provided for under these exceptions. The ‘basic standards’ however, must still be met.

There is an exception to both location and physical standards in situations where: [11]

• the applicant made the application outside office hours, or

• the local authority did not have suitable accommodation available

The maximum amount of time a household can stay in unsuitable accommodation is 7 days. [12]

The ‘basic standards’ must always be met, and there is no 7 day exemption to those.

The Unsuitable Accommodation Order now makes provisions for specific types of accommodation to be ‘unsuitable’. [13]

Community hosting, rapid access accommodation and shared tenancy accommodation will not be in breach of the order even where they have shared toilet and washing facilities.

Community hosting will be suitable even where it is not usable by a household 24 hours a day.

Community hosting, rapid access accommodation and shared tenancy accommodation are always unsuitable for:

• pregnant women

• children

• a person with parental rights of a child

The only exception to this would be where a household including one or more of those persons has agreed to be placed in these accommodation types.

From 30 September 2021, there are no coronavirus-related exemptions to the unsuitable accommodation order.

Where advisers have any concerns that an applicant has been placed in ‘unsuitable’ accommodation they should speak with a housing law solicitor.

Temporary accommodation provided where an applicant has been found to be ‘intentionally homeless’ and entitled to a reasonable period in accommodation should meet the 'Advisory Standards' and must also: [14]

• Not be statutorily overcrowded

• Not be dangerous to the health of the occupants

• Must meet any special needs of the household

• Must be reasonable to occupy

The Interim Code of Guidance on Homelessness issued in November 2019 introduced new Advisory Standards for Temporary Accommodation. [15]

The guidance provides a set of advisory standards to be applied by local authorities to both their own temporary accommodation and also any temporary accommodation sourced from external providers. The standards apply to all households and relate to all types of temporary accommodation including Bed and Breakfast and hostels. Local authorities are required to ‘have regard to’ these standards as they form part of the Code of Guidance. See the section on Sources of homelessness law and guidance for more information.

Physical Standards

The following details the physical standards that should apply where appropriate across all tenures to ensure that temporary accommodation is an adequate, safe and secure space for the household. The temporary accommodation should:

• Be accessible and able to meet the needs of any disabled person within the household;

• Comply with relevant housing quality standards including health and safety, hygiene, fire, furniture and electrical equipment legislation and regulations;

• Provide units that are secure with individual locks so people feel that their belongings are safe;

• Provide a facility to secure personal mail, where appropriate;

• Have sufficient bedroom space to meet the needs of the household in line with the overcrowding and HMO standards;

• Have adequate communal living space which includes, for example, space for children to play or do homework;

• Have adequate toilet and personal washing facilities for the exclusive use of the household;

• Have access to on site laundry facilities;

• Have access to adequate cooking facilities for the needs of the household;

• Have a suitable standard and minimum level of furniture to meet the household's needs, where relevant;

• Have a good standard of cleanliness;

• Have a sufficient and affordable heating system at an acceptable efficiency rating in line with those published in the Energy Efficiency Standard for Social Housing and those for Private Rented Property;

• Be accessible 24 hours a day with no curfews;

• Include a household assessment to consider whether the temporary accommodation being offered is affordable by the household;

• Allow access to digital technologies (e.g. via WiFi), where possible, so households can access online facilities e.g. welfare benefits, choice based letting systems;

• Have the means to support people to maintain relationships with their pets; and

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

Location standards

When considering offering a household temporary accommodation it is important to discuss with the household the location of the property and its proximity to services and local amenities.

• Accommodation provided should be located so that the main essential services used by a household can be reached by foot, by public transport or by transport provided by a local authority. Services to include education/school/nursery, supermarket or convenience store, doctors, dentists, support or other health providers and advice agencies (where applicable);

• The location of the property should also take into account the needs of all household members in terms of reasonable access to place of employment and formal or informal support networks.

• Cultural or religious need should also be identified and met through the location of accommodation where possible;

• The location of the accommodation also needs to take into account the social and economic needs of the household; and

• An assessment of personal safety of the household, specifically households fleeing domestic abuse, predominately women, and whether the temporary accommodation being offered is in an area that is close to the perpetrators family and/or is too far from children's school, social network etc.

Service standards

For some families a stay in temporary accommodation can be long term as they wait for suitable permanent property to become available. It is crucial that households receive a consistent standard of service delivery in order to sustain their temporary accommodation and facilitate a move into settled accommodation. Service delivery standards include providing:

• Services identified by an assessment of the needs of all household members, followed up with referrals and support to engage with the relevant housing, health, education, social care services and independent advice services;

• Support to access different types of accommodation especially where households are fleeing domestic abuse and the accommodation is used by mixed sex and/or only has male or female staff;

• Support to access flexible and ongoing needs led support, specifically where households have multiple and complex needs;

• Support to access the necessary information of the appropriate services including counselling, addictions, mental health, medical, dental, optical and money/welfare advice to signpost the household to relevant and available support;

• Psychologically Informed Environments, where appropriate, and if required, ensuring staff have been trained in trauma informed care to ensure person-centred needs are met;

• Regular reviews of household's needs on a case by case basis, agreed by the household, and taking into account any change in circumstances;

• Regular and sustained home visits by allocated officers to identify any unmet needs of the household; and

• Ongoing communication with the household with easy access to Housing Officers to discuss issues, ensuring that any information provided is available in different formats and an interpreter is provided where necessary.

Management standards

The following standards will ensure that a resident is aware of their rights and responsibilities during their stay in temporary accommodation, including any procedures that they need to follow. Providing a household with relevant information at the time of moving in or relocating to alternative temporary accommodation, as well as supporting the household to understand the information can help to ensure the best possible outcome for the household. This includes ensuring:

• A written occupancy agreement is in place and has been explained to the household which includes an agreed minimum amount of notice (at least 24 hours) that a landlord must give before accessing a person's property/unit and under what circumstances they would give such notice;

• Information on any House rules has been provided, including an appropriate set of procedures to demonstrate that anti-social behaviour will not be tolerated especially in shared accommodation such as B&B's;

• Information on the Repairs procedure has been provided;

• The household is provided with or can access all relevant information applicable to the household's requirements whilst in temporary accommodation and this information is available in different formats;

• Information on the Notice period to end an occupancy agreement, including the right to appeal is provided;

• Procedures are in place to ensure there is minimum disruption to the household when moving in and out of the accommodation and made aware of any support available to help with the move;

• Procedures are in place to protect personal possessions and provide support, advice and information on storage where necessary;

• That residents are involved in all discussions surrounding their needs including relocation and changes to occupancy agreements;

• That staffing levels match those required to meet the services of the household and all staff have been appropriately trained to understand the needs of the household;

• That households are made aware of the Local Authority's Complaints procedure and how to access it; and

• That households are provided with a rent statement of charges and how they are paid, in light of the introduction of Universal Credit.

The exact approach will depend on whether the accommodation is unsuitable due to:

• the accommodation being in breach of the 2014 Order

• the accommodation does not meet the needs of a disabled member of the household in breach of the Equality Act 2010,

• in breach of another Act for example where accommodation is overcrowded or below the tolerable standard, or

• the accommodation does not meet the Advisory Standards

In all cases, advisers can assist by gathering evidence of any special circumstances of the applicant or their household and making an initial approach to the local authority highlighting, in writing, which specific legislation or guidance applies and that failure to comply may be a breach of their statutory obligations. If this does not resolve the situation however, the client should be referred quickly for specialist legal advice as they may have grounds to raise judicial review proceedings.

Where the Order or another statutory requirement has been breached it may be possible to apply for damages. Clients should be referred to an experienced housing law solicitor. Please also see the section on damages in Remedies through Judicial Review.

The Scottish Government issued guidance to local authorities on 31 Jan 2021.

The purpose of this guidance is to help guide local authorities in their duties to assist people who are threatened with or who are experiencing homelessness and aims to explain the changes that have been created by the new legislation as well as providing clarity on the definitions and exemptions to help local authorities with the implementation of the Covid-19 extensions.