Outline of the legislation

The essence of Part II of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001 and the Homelessness etc. (Scotland) Act 2003, is a range of duties on the local authority depending upon whether someone:

• is homeless [1] (or threatened with homelessness)

• is eligible for housing assistance [2]

• is intentionally homeless [3]

• has a local connection with the local authority [4].

If all these criteria have been satisfied, the local authority owes a full housing duty and must ensure that permanent accommodation is made available to the applicant and any person who could reasonably be expected to reside with her/him. [5] The local authority cannot demand that an applicant satisfy any further criteria before s/he is offered permanent accommodation. [6]

If someone is not entitled to permanent accommodation, there are other duties that a local authority must meet.

On 31 December 2012 the test of priority need was abolished. [7] Anyone who is unintentionally homeless (subject to local connection) from 31 December 2012 is owed the full housing duty from the local authority to which they applied.

The Immigration and Asylum Act 1999 excludes many people who are 'subject to immigration control' from eligibility for assistance under the homeless legislation. However, there are some groups specified by statutory instrument [8] who are still eligible for help under the 1987 Act, as amended, for example  EEA Nationals, or refugees, who have been granted leave to remain. Local authorities have been issued with guidance from COSLA on how to assess non UK nationals. See the pages on EEA nationals after Brexit for more information.

Although not eligible for assistance under the homelessness legislation, asylum-seekers may be eligible for assistance under alternative social welfare legislation. The situation in relation to the rights of asylum seekers is complex - for more information, please see the section on asylum seekers.

When a local authority is assessing whether someone is homeless, it must provide her/him with interim accommodation until a decision is made on what duty, if any, is owed to her/him. [9] If the applicant is unhappy with the decision, s/he can request that it be reviewed and s/he is also entitled to interim accommodation until the review is conducted. [10]

When a local authority decides that an applicant is homeless but is intentionally homeless, it has to give the applicant temporary accommodation for a reasonable period to help her/him find accommodation. [11] The applicant does not have to demonstrate that s/he is in priority need in order to access temporary accommodation and the reason for her/his homelessness is irrelevant.

All applicants who are homeless or threatened with homelessness are also entitled to advice and assistance as prescribed by Scottish Ministers, which helps them to find or retain accommodation. [12] Advice must encompass more than housing advice and include financial and legal issues. [13] Assistance includes a requirement to provide a personal interview, the provision of an interpreter and a written record of the interview, which may be in translation or Braille. [14]

Temporary accommodation offered to a person who is intentionally homeless must:

• not be overcrowded or a danger to the health of anyone living there [15]

• meet any special needs of the applicant and anyone who normally lives with her/him [16]

• be reasonable for the applicant to occupy. [17]

The local authority must have regard to the best interests of any dependent children of the applicant when allocating temporary accommodation. [18]

Many local authorities discharge this temporary accommodation duty by giving all applicants the same period of time in temporary accommodation. The Code of Guidance advises that the local authority should consider the circumstances of the applicant and the availability of alternative accommodation in the area when determining the time an applicant needs to spend in temporary accommodation. [19] This includes factors such as disability, addiction, mental health problems and if the applicant has a chaotic lifestyle. In some cases it may be reasonable to expect the authority to provide accommodation for a period of months. [20] Advisers should point out that it might take a considerable period for some people to find their own accommodation. If no reasonable options have been identified, then the Code advises that the applicant has not had a reasonable opportunity to find accommodation and the duty to provide temporary accommodation continues. [21]

When an authority decides that an applicant is homeless, eligible for housing assistance, and not intentionally homeless, it is under a duty to make sure that permanent accommodation is made available for the applicant and for any person who might reasonably be expected to reside with her/him. [22] This duty is subject to the possibility of referral to another authority where that is permissible under the local connection provisions.[23] If the applicant is not yet homeless, the local authority has a duty to ensure that it takes reasonable steps to ensure that s/he does not lose her/his accommodation. [24]

The local authority can discharge the permanent accommodation duty by making accommodation available either directly or indirectly, for example through a registered social landlord or a private sector landlord. Permanent accommodation includes the provision of a Scottish secure tenancy, an assured tenancy, a private residential tenancy or, in some cases, a short Scottish secure tenancy, the list of what constitutes permanent accommodation is not exhaustive. [25] The permanent accommodation found must be reasonable for the applicant to occupy, meet any special needs of her/him and anyone else who could reasonably expect to live with her/him and must not be overcrowded or endanger the health of the applicant. [26] The local authority must have regard to the best interests of any dependent children of the applicant when allocating permanent accommodation. [27]

If the applicant has had a housing support services assessment, this may conclude that s/he or someone living with her/him requires housing support services that cannot reasonably be provided in permanent housing. Please see the page on local authority duty to provide permanent accommodation for more information. [28]

The local connection provisions are applicable where an applicant is homeless, and not homeless intentionally. Where the applicant has no connection with the authority that has received the application, but does have a local connection with another authority, s/he can be referred there. Although the receiving authority is not bound to refer the application, in practice they usually do. If the local authority has decided that the applicant has a local connection with a different authority, and refers the applicant to the other local authority under these provisions, they must secure accommodation until the referral has been accepted. [29]