No accommodation in the UK or elsewhere

A person is homeless if they have no accommodation in the UK or elsewhere. [1]

The 1987 Act defines accommodation in three categories, being:

• accommodation that the applicant is entitled to occupy by virtue of an interest in it or by Order of Court

• accommodation that the applicant has a right or permission (express or implied) to occupy

• accommodation that the applicant occupies as a residence by virtue of an enactment or rule of law which positively gives her/him the right to occupy, or restricts the right of some other person to recover possession. [2]

There must be something that falls into one of the three main categories that define accommodation for the applicant to be regarded as having a place to live. 'Accommodation' should be given its ordinary meaning. Premises should count as 'accommodation' only if they can reasonably be described as such.

In general, the courts do not regard temporary crisis accommodation, such as night-shelters and women's refuges, as 'accommodation'. If such accommodation is all that is available to the applicant, then they are homeless. [3]

Owner-occupiers and tenants are examples of persons having an 'interest' that entitles them to occupy. Someone deemed to be a cohabitee may also be granted occupancy rights under Section 18 of the Matrimonial Homes (Family Protection) Scotland Act 1981. Whether the person is occupying the premises or not is irrelevant: it is the possession of the interest and/or any court order that is crucial. In theory even a rough sleeper would not be classed as homeless if they are the owner of a house that they choose not to occupy.  However the local authority must still consider whether the property is 'reasonable to continue to occupy' etc.

In order to be treated as having a 'right or permission' to housing, an applicant may not have much or even any security of tenure. There need not be a contract in writing, although there might be. Examples could include service-occupiers under contracts of employment, or people staying with friends or relatives (even if they pay no 'rent'). If the right or permission is lawfully withdrawn (for example, where parents tell their adult children to leave home) the person will be homeless even if they continue to live on the premises.

It is not necessary for them to be physically removed or for a court order recovering possession to be made before they can be considered homeless.

The expression 'enactment' refers to legislation. 'Rule of law' would cover any principle derived solely from case law. In practice it is the legislation that is the important source in this area. This category covers situations where the right to occupy depends solely on the legislation. Examples would include a non-entitled spouse with occupancy rights in the matrimonial home under Section 1 of the Matrimonial Homes (Family Protection)(Scotland) Act 1981 or a statutory assured tenant under the Housing (Scotland) Act 1988. [4]

If the authority applies these criteria and decides that the applicant does have accommodation, it must still go on to consider whether it is accommodation that is 'reasonable to continue to occupy'. [5]

The Act refers specifically to the applicant having 'no accommodation in the UK or elsewhere'. In order to find that a person is not homeless because s/he has accommodation abroad, the local authority must establish:

• on what terms the accommodation was occupied, ie whether the applicant has a right to occupy within the meaning of the Act, and

• whether or not it was reasonable to continue to occupy it.

The Code of Guidance states: [6]

• 'Given the difficulty in ascertaining whether accommodation outside the UK is available, if evidence is not readily available, it should be assumed that the applicant does not have access to accommodation elsewhere'.

If it is held to have been reasonable for the applicant to continue to occupy accommodation abroad, s/he may be found intentionally homeless for leaving it if it is no longer available. Case law on intentional homelessness should be referred to in such instances.

A local authority is entitled to find that a person is not homeless if s/he has accommodation anywhere in the world that is available for her/his occupation. The definition of 'availability' has been the subject of case law. [7] A person who can afford to return to accommodation that is legally and practically accessible in another country may be found not to be homeless. 'Availability' includes accessibility. If an applicant does not have sufficient money to return, s/he should raise the issue of inability to pay with the local authority.

The accommodation must be available to the applicant together with any other person with whom the applicant either resides or might reasonably be expected to reside. See Split households for details.