Sources of homelessness law and guidance

The Housing (Scotland) Act 1987, as amended, consolidated the original homelessness legislation contained in the Housing (Homeless Persons) Act 1977 with other housing legislation including the Tenants' Rights (Scotland) Act 1980.

Scottish Ministers also issue additional regulations from time to time in the form of statutory instruments, for example the Homelessness etc. (Scotland) Act 2003 (Commencement No.1) Order 2003 (SI 2003/609).

The interpretation of the Housing (Scotland) Act 1987 has been shaped by case law, resulting from applications for judicial review in the Court of Session in Scotland. Much English case law can be cited, as the wording of the legislation was virtually the same until the implementation of the Housing Act 1996, which adversely affected the rights of homeless people in England but did not apply in Scotland.

In addition to the legislation and case law, there is a Code of Guidance on Homelessness. As a result of the Housing (Scotland) Act 2001and the Homelessness etc (Scotland) Act 2003, a revised Code has been produced and was published in 2004. [1] Although the Code is not binding local authorities must demonstrate they have had regard to it in reaching their decision on the application of a homeless person. [2] Provided the local authority can demonstrate they have considered the recommendations in the Code they can depart from it. [3] The written decision should demonstrate that the code has been considered. [4] Where it is silent on this question, this does not necessarily suggest that the Code has not been considered. If a decision is unexplained the authority may be challenged, as the presumption that an authority has considered the Code can be displaced by even slight indications to the contrary. [5]

In June 2009, guidance on preventing homelessness was issued by the Scottish Government and the Convention of Scottish Local Authorities (COSLA). This guidance supplements the original Code of Guidance. It describes the actions local authorities should take to prevent homelessness arising in the first place, and recurring once homeless applicants have been rehoused.

If the applicant is a registered sex offender, the Scottish Government has published the NASSO strategy document that highlights issues that should be taken into consideration when sourcing suitable housing.

The Housing (Scotland) Act 2001 requires each local authority to produce a strategy for preventing and alleviating homelessness in its area, which must be submitted to the Scottish Ministers. The strategy must set out how the authority will meet its duties towards homeless applicants. [6]

Local authorities are no longer required to produce a separate homelessness strategy. Instead, the information required by the 2001 Act should be incorporated into the wider Local Housing Strategy. [7]

Most local authorities produce a policy on homelessness, which sets out how they will interpret the legislation and how they will deal with duties under the homelessness legislation. This may add to the rights of individuals but cannot withdraw rights enshrined in statute. A local authority has considerable discretion when making decisions on homeless applications. A local authority must not restrict its decisions by slavishly following its policy without regard to the circumstances of a particular application. [8] Conversely it may be obliged to follow its own policy even when it would prefer not to. [9]