Duty to provide temporary accommodation

There is an interim duty to accommodate under s.29 of the Housing (Scotland) Act 1987. This type of temporary accommodation is sometimes referred to as interim accommodation. Occasionally, local authorities may refer to it as ‘emergency accommodation’.  

There are three scenarios where the local authority has a duty to provide interim accommodation under s.29 of the Act:

• pending a homelessness decision

• during a review of a decision, and

• (if there is a duty to provide permanent housing), until this becomes available.

There is a further duty to provide temporary accommodation which arises from s.31(3) of the Act and this duty applies:

• where an applicant has been found to be homeless but the local authority are satisfied that they became homeless intentionally

There is also a duty to provide temporary accommodation which arises under s.32B:

• where there has been a housing support assessment and transitional accommodation is provided alongside support

The following sections cover each of these duties in more detail.

If it has reason to believe that an applicant is homeless, a local authority must make temporary accommodation available for the applicant and anyone who might reasonably be expected to reside with him/her until it has made a decision as a result of its inquiries. [1] This means that this duty arises before the local authority completes its inquiries. The local authority cannot pre-judge the outcome of their inquiries and refuse to provide temporary accommodation.

Where no application has been taken or the council are refusing to provide temporary accommodation advisers can formally request (ideally in writing) that a homeless application be taken as per s.28 of the Housing (Scotland) Act 1987 and that temporary accommodation be provided as per s.29 of the Act, noting that failure to do so may be a breach of the council's statutory duty.  If no homeless application is taken or temporary accommodation is still not offered the client should be referred quickly for legal advice in relation to raising judicial review proceedings.

If an applicant requests a review of the local authority's decision, temporary accommodation must be made available while the review procedures are being completed. [2]

Where a local authority do not believe an applicant is homeless they may argue that this duty does not apply.  The exact wording of the legislation states that this duty applies if the local authority ‘have reason to believe an applicant may be homeless’. Arguably this means that if there is any possibility that the applicant may be homeless then the duty to provide accommodation whilst making inquiries applies.  Although the applicant will have to provide some information to the local authority to suggest that there is reason to believe that s/he is homeless or threatened with homelessness [3], the burden of proof rests with the authority [4].

Therefore, in all cases where a local authority is refusing to provide accommodation advisers should specifically include a request that accommodation be provided as part of the review submission.  It may also be prudent to ensure any reasons why the applicant may be homeless are stated explicitly.

If no temporary accommodation is then offered the applicant should be referred to a solicitor for advice on judicial review proceedings.

Where a local authority has a duty to provide permanent accommodation- sometimes known as a full housing duty-  they must make temporary accommodation available until the permanent accommodation becomes available. [5] It may perform this duty in stages, for example by providing temporary accommodation in bed and breakfast accommodation before allocating longer-term temporary accommodation. [6] The Code of Guidance advises that local authorities must explore all alternatives to bed and breakfast hotels or other similar establishments. These should be used only as a last resort and should not be seen as a permanent solution to the applicant's homelessness. [7] If local authorities do use bed and breakfast or similar accommodation, it should only be used for as short a time as possible. [8] There is a statutory requirement that local authorities cannot use bed and breakfast type accommodation for homeless households for more than 7 days. [9]

When a local authority decides that a person is homeless and that they became homeless intentionally, the local authority is under a duty to ensure that temporary accommodation is made available for such a period as it considers will give the applicant a reasonable opportunity to secure his/her own accommodation. [10] The local authority is also under a duty to give advice and assistance. [11]

See the page Intentionally homeless- Duties

Where the local authority are satisfied that an application is either homeless or threatened with homelessness, and where they have a reason to believe that the applicant may have housing support needs, they have a duty to assess these needs. [12]

If this assessment concludes that the applicant (or any other person residing with that applicant) currently requires a level of housing support services which makes permanent accommodation inappropriate the duty to provide permanent accommodation may not apply. [13] However the applicant will be entitled to Transitional accommodation and support. See the section Exceptions to the duty to provide permanent accommodation for more information on this.

The Inner House has ruled that whilst a local authority is bound by Article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 to take into account the needs of the household when allocating temporary accommodation, they do not have to meet those needs.

In practice this means Article 4(b) is not an absolute duty. Provided that general needs are taken into account and the decision of the council is not wholly unreasonable, local authorities will be complying with Article 4(b).

General needs will be considered to be things like size and composition of the household rather than the individual needs of the persons in the household.

Further, permanent accommodation allocated in the discharge of the council's duty towards a homeless person must meet the needs of the individuals in the household, but temporary accommodation is not held to the same standard.

For the purposes of challenging unsuitable offers of temporary accommodation it may be necessary to:

• put the position in writing to the council, explaining the impact and why it has become intolerable, providing evidence to support this where available

• request that permanent accommodation that meets the individual needs is secured and seek timescales for an offer

• if permanent accommodation cannot be imminently provided, requested alternative suitable temporary accommodation

If initial advocacy and casework does not result in a better offer, clients may need to be referred to a specialist housing law solicitor.

For the purposes of intervention by way of judicial review in such cases, the court can only intervene where the homelessness caseworker who assessed the needs of the household either:

• acted wholly unreasonably

• acted irrationally

• failed to apply correct procedure

• failed to take a relevant matter into account

The effect of the Glasgow City Council v X, Court of Session Inner House decision:

The obligations under the Housing (Scotland) Act 1987 s.29, and Article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 - to provide temporary accommodation that is "suitable for occupation by a homeless household, taking into account the needs of the household" - does not impose the same duty as that imposed in relation to permanent accommodation. [14]

Permanent accommodation offered by the local authority under the Act must meet the household's needs including any special needs of each individual of the household. The Article 4 test in the Order of "suitability" can be met where the temporary accommodation does not meet any special needs of individual members, as long as the general needs of the household are taken into account by the local authority.