Duty to make inquiries

A local authority must take a number of steps to fulfil the duty to make inquiries. It must:

• carry out such inquiries to satisfy itself as to whether the applicant is homeless or threatened with homelessness [1]

• provide interim accommodation to the applicant whilst it determines whether or not s/he is homeless or threatened with homelessness [2]

• if satisfied that the applicant is homeless or threatened with homelessness, provide her/him with advice and assistance as prescribed by Scottish Ministers that helps her/him to find or retain accommodation [3]

The local authority cannot look at whether the applicant is in priority need. This requirement was removed in 2012. [4]

In cases of repeat applications the local authority must accept a new homeless application and make inquiries if there has been a change in the client’s circumstances, where they have reason to believe that the applicant is homeless, and the change is not fanciful or trivial. [5]

If it is decided that the applicant is homeless, the local authority may, if it thinks fit, inquire whether the applicant became homeless or threatened with homelessness intentionally. [6]

If satisfied that the applicant is homeless, but is intentionally homeless, the local authority must provide them with temporary accommodation for a reasonable period to help them find accommodation [7]

For applications taken prior to 29 November 2022, the local authority may, if it thinks fit, inquire whether the applicant has a local connection with another local authority in Scotland, England or Wales. [8]

For applications taken on or after 29 November 2022, the local authority cannot make local connection inquiries in order to make a referral to another Scottish local authority, as local connection referrals have been suspended. [9]

This suspension does not apply to referrals to local authorities in England and Wales.

If requested by the applicant the local authority also has a duty to review the decisions it makes in relation to the duties, if any, it owes to an applicant who is homeless or threatened with homelessness. [10] Whilst this review is being carried out, the applicant is entitled to temporary accommodation. [11]

For more information, please see the section on challenging local authority decisions.

The Code of Guidance advises that the local authority should have targets for completion of each stage of the application process, and should monitor these. [12]

The Code suggests that local authorities should aim to:

• interview and carry out the initial assessment of an application on the day of application, or on the first day thereafter in the case of applications made outside of office hours or where the applicant is particularly distressed [13]

• complete their inquiries within 28 days, unless there are legitimate reasons for taking longer [14]

• issue decisions within one working day of the completion of inquiries. [15]

The Code of Guidance also advises that applicants should be informed of the likely length of time the process will take, and that they must be kept well informed of progress. [16] Applicants must also be told what inquiries the local authority will make at each stage of the application process. [17]

The Act defines the scope of inquiries as those necessary to 'satisfy' the local authority in respect of homelessness and intentional homelessness. [18] The Code of Guidance states that inquiries should be 'careful, but not over- elaborate'. [19] The Code makes particular reference to the need to be sensitive when investigating whether someone has accommodation available outside the UK. [20] It highlights that there may be cultural issues or language barriers to consider and if evidence is not readily available, the local authority should assume that the applicant does not have accommodation available outside the UK. [21]

The Code makes mention of the complexity of family structures, indicating that a narrow definition of 'family' cannot be taken. [22] The Act itself sets out what is meant by 'family' in this context. [23]

One of the factors that a local authority must consider is whether it is reasonable for someone to continue to occupy existing accommodation. The legislation does not define 'reasonable' and the Code makes clear that what may be considered reasonable for some applicants, may not be reasonable for others, for example, the different needs of households with children and those consisting of adults only. [24] The Code gives examples of what might be unreasonable accommodation:

• It is below the tolerable standard.

• It is bed and breakfast accommodation.

• It is a hostel or other accommodation, such as a refuge or mobile home, ie not long-stay accommodation.

• The applicant is in fear of external violence in her/his current accommodation, including harassment. [25]

• It poses a substantial risk to the applicant's physical or mental health.

• It is not practical for the applicant to live there because of her/his disability.

The name of the housing officer who interviewed the applicant should be included in any record of the interview. [26]

Although the applicant will have to provide some information to suggest that there is reason to believe s/he is homeless or threatened with homelessness, the applicant is not obliged to prove his/her homelessness. The burden is on the local authority to make inquiries, and not on the applicant to prove that accommodation is no longer available or reasonable to occupy. [27] If, for example, an applicant fleeing external violence outlines circumstances that may suggest their accommodation is unreasonable, the local authority should not simply tell the applicant to go back home. The authority should conduct appropriate inquiries before making the decision and should not make assumptions about what is reasonable to continue to occupy. [28] The Code of Guidance stresses that if the applicant reports violence, the local authority should take reasonable steps to obtain information to support the applicant's case. However, a local authority should never seek proof from an alleged perpetrator and if it proves impossible or inappropriate to obtain confirming evidence the applicant's expressed fears should be considered sufficient evidence.[29]

In some cases, there may be input from more than one local authority department, for example social work or education. Applicants who require assistance from more than one professional disciple or agency are entitled to a Singe Shared Assessment. [30] Failure to consult with the social work department and consider its point of view can result in decisions being overturned by the courts. [31]

Although the duty to carry out inquiries rests solely with the authority to whom the application has been made, [32] the 1987 Act provides that, in carrying out its duty to make inquiries, the local authority can request assistance from other social landlords or a social work authority in Scotland, or a social services authority in England or Wales who must co-operate with the request so far as is reasonable in the circumstances. [33]

The local authority must carry out its inquiries in the correct sequence. [34] The Code of Guidance suggests that local authorities, if satisfied that someone is homeless must then check whether the applicant is subject to immigration control and whether they are eligible for assistance.

The local authority may then, if they think fit, check whether the person is intentionally homeless. [35]

For applications taken prior to 29 November 2022, they may then decide whether the person has a local connection. If a person has no local connection with the local authority to whom they apply, the authority must still carry out investigations into the other factors first and cannot just tell the applicant to go and apply to an authority with whom they have a local connection. [36]

For applications taken on or after 29 November 2022, in most cases the local authority should not decide whether an applicant has a local connection, as local connection referrals to other Scottish local authorities have been suspended. [37]

The Code of Guidance advises that assessment interviews should be conducted in private, in an interview room or at least in an office not open to the public. [38] Interviews should never be conducted where the interview might be overheard. [39]

The Code also states that all applicants should be advised that a friend or adviser can come with them to the interview and can speak for them if required. [40] Interpreters should be available for those whose first language is not English. The interpreter can be one nominated by the local authority or by the applicant, or by services such as Language Line. [41] Even if a friend or relative is there to interpret for the applicant, s/he should be given the option of a trained interpreter. The interviewer may wish to have a trained interpreter present if there are any concerns that the applicant may not fully understand the advice being given. [42] People with mental health problems or learning difficulties, or those with speech or hearing difficulties, may also require an intermediary. [43]

Inquiries should be pursued fairly and vigorously, although there is no duty to conduct 'CID-type inquiries'. [44] Authorities do not have to handle inquiries as if the issues were being considered by a court of law, but should act reasonably on responsible evidence from reasonable and reliable people. [45]

Although, as has been stated, there is no duty on the local authority to carry out 'CID type inquiries', the failure to make sufficiently detailed inquiries can result in the decision being declared unlawful. [46] Authorities should seek advice from the most appropriate sources in order to assess the evidence. If this advice is conflicting, they must choose which to accept and demonstrate why they have chosen to accept advice from one party as opposed to another. In one case, [47] the court found against the local authority that had preferred evidence from its own medical adviser who had no specialist knowledge of the applicant's condition, as opposed to the evidence supplied by the applicant from her own GP and her consultant.

The applicant must be given an opportunity to make representations and challenge the authority's findings. [48] The failure to put basic issues to the applicant could result in the authority missing out on relevant information. [49]

The public sector equality duty under section 149 of the Equality Act 2010 applies to the duties under Part II of the Housing (Scotland) Act 1987.

At each stage of the decision-making process, authorities are required to have the equality duty in mind and focus very sharply on whether an applicant has an actual or probable disability, or other protected characteristic, which need enhanced consideration. Where an applicant has a protected characteristic, inquiries must be even more careful, and fuller reasons must be given for a negative decision.[50]

It is for the authority to decide, as a matter of fact and on the evidence advanced by the applicant or otherwise available to it, if there is a real possibility that the applicant or any member of her/his household has a disability or other protected characteristic which requires further enhanced inquiries. [51]

For more information about protected characteristics see Equality Act 2010.