Who can apply

The 1987 Act refers to an application by a person and does not specify age. [1] There are other statutory and contractual precedents that indicate that 'a person' includes anyone of 16 years of age or more. Such persons can be tenants or owners of property in Scotland. [2] A child below the age of 16 does not have legal capacity for the purpose of this Act. [3]

The House of Lords has held that an adult lacking mental capacity is not owed duties under the terms of the homelessness legislation [4] and that local authorities have the discretion to decide whether an applicant lacks the capacity to make an application. [5] It may well be that this decision could be challenged at a later date as many practitioners in this field, and one dissenting judge, [6] believe the decision to be wrong. [7]

In situations where a homeless person's mental health difficulties mean that they could be deemed to lack capacity, it may be that a carer could make the application if they are someone who 'might reasonably be expected to reside with' the homeless person. [8] Alternatively, the local authority may well have a duty under alternative social welfare legislation. [9]

Council tenants may apply to the council for rehousing. In some situations, a transfer applicant can be regarded as statutory homeless, for example if the property is unsuitable for their health needs. [10] The decision to grant a transfer is a discretionary one. (In Scotland the term 'management transfer' enjoys popular usage; this is a mechanism for moving council tenants quickly where they are deemed to be at great risk, usually in cases of actual or threatened external violence). Where the authority refuses to grant a transfer, the applicant should make it clear that they wish to be treated as a homeless applicant under Part II of the Housing (Scotland) Act 1987. This then places an obligation on the authority to deal with the applicant under the terms of the homelessness legislation and thus limits the local authority's discretion.

The Act talks about an application being made by 'a person' rather than a family, [11] so an application should be treated as made by an individual. [12]

Where a joint application is made, the applicants' circumstances should be considered jointly unless they specifically request separate treatment or evidence indicates that they should be treated separately. [13]

Joint applications should be considered separately where one of the joint applicants is found to be intentionally homeless but evidence shows that the other applicant was not a party to the decision. For example, when a husband and wife each applied for assistance it was held that the wife had not become homeless intentionally and therefore the authority had a duty to provide accommodation for her and her family, including her husband, notwithstanding the fact that her husband was found to be intentionally homeless on the basis of his application. [14]

Where an individual application is made and the applicant is declared intentionally homeless, another member of the family unit can make a separate application in their own name. [15] Changing the principal applicant does not guarantee success, as the local authority are entitled to assume that, in the absence of evidence to the contrary, other members of a household, such as a spouse, have acquiesced in their partner's conduct.

In some cases, for example where an asylum seeker is applying as homeless, one member of a household may be ineligible for assistance but another member may be able to apply instead. There is no reason why the eligible family member should not apply for assistance in the normal way. However in deciding whether the eligible person is homeless, no account may be taken of any other person who is not eligible for assistance.

The situation in relation to the rights of asylum seekers and other people subject to immigration control is complex. For more information, please see the section on advice and assistance and the section on asylum seekers.

People coming from Ukraine who have limited leave to remain

Certain Ukrainian nationals are eligible for homeless assistance and housing from local authorities and housing associations in Scotland. This is as long as they have limited leave to remain granted under the Ukraine Scheme Appendix to immigration regulations, following an application for leave made in the UK. [16]

Where a decision has been made that no duty is owed, an applicant is entitled to request a review, even if the reason for this this is outwith the scope of the 1987 Act, [17] for example where a local authority believe an applicant has no entitlement to public assistance.