Exceptions to the duty to provide permanent accommodation

There are three exceptions to the local authority duty to provide permanent accommodation: [1] 

• Where the housing support services assessment of someone who would normally be entitled to permanent accommodation has determined that the level of support required is such that permanent accommodation would be inappropriate. This is also applicable where someone residing with that person, and not the applicant him/herself, has also had that conclusion from the housing support services assessment [2]

• Where a private residential tenancy is available to the applicant [3]

• Where a local authority has a duty to provide the applicant with permanent accommodation because of a 'restricted person' and they offer the applicant a tenancy in the private rented sector [4]

These regulations do not impose any extra duties on local authorities, instead, they allow local authorities to discharge their obligations to applicants with a full housing duty. These exceptions should only be used by local authorities on a case-by-case basis. [5] Depending on the circumstances, the local authority can provide transitional accommodation [6] or an offer of a private residential tenancy.

However, there are specific criteria that have to be satisfied before either of these options are considered appropriate (see below). See also the Homeless Persons (Provision of Non-permanent Accommodation) (Scotland) Regulations 2010 and Scottish Government guidance for more detailed information.

It is not enough for the local authority to provide the transitional accommodation on its own. The local authority also must provide the person(s) concerned with the following:

• all of the services required as detailed in the housing support services assessment, this must be recorded and retained by the local authority

• access to independent advice and information relating to the services required by the person(s) as detailed in the housing support services assessment

• a timetable detailing the provision of the transitional accommodation and the housing support services. This timetable must be agreed with the person(s) concerned

• a date for review of the transitional accommodation and housing support services. This should be no later than 6 months from when the transitional accommodation was first provided

• a responsibility to provide permanent accommodation in the future - ie when the housing support service assessment determines that permanent accommodation is appropriate

• a means by which the transitional accommodation and housing support services provided will be monitored [7]

If a client is offered a private tenancy as an exception to the duty to provide permanent accommodation it may be necessary to refer them to a specialist housing solicitor.

Where a local authority has a duty to provide a homeless applicant with permanent accommodation because of a 'restricted person', the rules relating to discharging the local authority's duty to provide the applicant with permanent accommodation are slightly different. A 'restricted person' is someone who is not eligible for homelessness assistance, is subject to immigration control and either does not have leave to remain in the UK, or whose leave to remain is subject to a condition to maintain him/herself and their dependants without relying on public funds. [8] Homeless cases involving such persons are known as 'restricted cases'. 

If a local authority decides that an applicant is eligible for permanent accommodation because of a restricted person then they must:

• inform the applicant that they came to this decision because of the restricted person

• identify the restricted person

• explain why they are considered to be a restricted person

• explain that the local authority can discharge their duty to provide the applicant with permanent accommodation by way of an offer of private rented accommodation [9]

A local authority can discharge their duty to a such an applicant if the applicant:

• accepts an offer of private accommodation, or

• refuses an offer of private accommodation [10]

The offer of a tenancy in the private rented sector must:

• be a private residential tenancy

• be made with the approval of the local authority, and

• the local authority should not approve such an offer unless they are satisfied that it is reasonable for the applicant to accept the offer [11]

If the applicant has existing rental liabilities then it will only be considered reasonable for them to take up the offer of a tenancy if they can bring their current lease to an end before taking up the new offer. [12] 

There is no obligation for local authorities to discharge their duty in this way - local authorities still have the discretion to discharge their duty to house the applicant as they would for a fully eligible applicant (eg a UK citizen with a child born in the UK). [13] In discharging their duty to an applicant by offering them a tenancy in the private rented sector local authorities must make the applicant aware of the consequences of refusing such an offer, and that they can ask for a review of the decision to offer them private accommodation or to discharge the local authority's duty to provide them with permanent accommodation. [14]