Permanent accommodation and Section 5 referrals

Local authorities have a full housing duty to those who are unintentionally homeless.

In exercising any of its duties in relation to someone who is homeless or threatened with homelessness a local authority must also have specific regard to the best interests of any dependent children.

This content applies to Scotland

Duty to secure permanent accommodation

The local authority has a full housing duty to those who are homeless and not intentionally homeless. In simple terms this means a duty to secure permanent accommodation. [1]

In limited circumstances, the duty to provide permanent accommodation will not apply where the level of housing support services needed to sustain a tenancy are large. For more detailed information, please see the section below on exceptions in providing permanent accommodation.

It should be kept in mind that in exercising any of its duties in relation to someone who is homeless or threatened with homelessness a local authority must have specific regard to the best interests of any dependent children. [2]

The Code of Guidance advises that, when making accommodation available, the priority for local authorities is to minimise the risk of repeat homelessness. [3] As a result, local authorities should look for long-term solutions when making an offer of housing. This should include taking into account the applicant's need to be close to family and friends and the access to healthcare, employment, education, training and support the household will require. [4]

The Code also stipulates that the sustainability of any accommodation offered should be considered. Poor practice in relation to maintaining a tenancy includes placing applicants in hard to let housing and placing those with social or other problems in the same area. [5]

Unreasonable offer

A local authority will not have fulfilled the permanent accommodation duty if the housing offered:

  • is overcrowded and a danger to the health of the occupants

  • does not meet any special needs of the household

  • is not reasonable for the applicant to occupy. [6]

Special needs of the household need not be exclusive to medical requirements.

If the accommodation offered does not meet the applicant's needs, but could be suitably adapted (for example, through the provision of auxiliary aids), the local authority should make this clear in the decision letter. In Basra v Boreh, [7] the sheriff stated that the proposals for adaptations should be 'the subject of assurances that an applicant could fairly regard as certain, binding and enforceable'.

If the offer of permanent accommodation does not appear to fulfil the local authority's duty, the applicant can request a review. [8] The review should be carried out by a person senior to the person who made the offer of permanent accommodation and who was not involved in making the decision. [9]

If the house offered has dampness problems then it may be that the authority has not fulfilled its duty as the accommodation should comply with the statutory requirement to be 'in all respects reasonably fit for human habitation'. [10] In City of Dundee DC v Connolly, the sheriff stated that this was the proper test to be applied in considering whether a secure tenancy was available for occupation. The sheriff further stated that 'it must be possible for... a tenant to dwell in the house with reasonable comfort in all rooms of the house... the unfitness of one room may be a most material detraction from his/her enjoyment of the premises to which s/he is entitled'. [11]

Number of offers

The Code of Guidance states:

'Local authorities' duty to secure accommodation for unintentionally homeless people would be fulfilled by a single offer of housing, even if this is refused by the applicant, provided that the offer was a reasonable one. Those experiencing homelessness should however be treated on the same basis as other housing applicants to local authorities in relation to the number of offers of accommodation they receive, where the local allocation policy is offers based.' [12]

So for example if a local authority allocation policy is to make two offers as standard, it is arguable that this should also be the case for any homeless applicants on their list.

Section 5 referrals to a registered social landlord

A local authority can request that a registered social landlord provide the permanent accommodation. [13] This is often referred to as a Section 5 referral. In making such a request, the local authority should ensure that it is appropriate and takes account of the legal duties owed to the applicant. The registered social landlord must comply with this request to provide accommodation within a reasonable period, unless it has a good reason for not doing so.

See the section on RSLs and homelessness for more information on this duty and what may or may not be considered to be ‘good reason’ for refusal.

Exceptions

In some circumstances local authorities can discharge their duty to provide a homeless applicant with permanent accommodation. See the page on exceptions to the duty to provide permanent accommodation for more information.

Last updated: 24 February 2020

Footnotes

  • [1]

    s.31(2) Housing (Scotland) Act 1987, as amended by s.3(3) Housing (Scotland) Act 2001 and art.8 Homelessness (Abolition of Priority Need Test) (Scotland) Order SSI 2012/330 s.32(8) Housing (Scotland) Act 1987, as inserted by s.3(4)(c) Housing (Scotland) Act 2001 and amended by art.9 Homelessness (Abolition of Priority Need Test) (Scotland) Order SSI 2012/330

  • [2]

    s.32(8) Housing (Scotland) Act 1987, as inserted by s.3(4)(c) Housing (Scotland) Act 2001 and amended by art.9 Homelessness (Abolition of Priority Need Test) (Scotland) Order SSI 2012/330

  • [3]

    Chapter 2 para. 2.2 Code of Guidance 2019

  • [4]

    Chapter 8 para. 8.3 Code of Guidance 2019

  • [5]

    Chapter 8 para. 8.60 Code of Guidance 2019

  • [6]

    s.32(5) Housing (Scotland) Act 1987, as amended by s.3(4)(b) Housing (Scotland) Act 2001

  • [7]

    Basra Boreh v Ealing London Borough Council (2008) [2008] EWCA Civ 1176

  • [8]

    s.35A Housing (Scotland) Act 1987 inserted by s.4 Housing (Scotland) Act 2001

  • [9]

    s.35B(1) Housing (Scotland) Act 1987 inserted by Housing (Scotland) Act 2001

  • [10]

    para. 2 sch.10 Housing (Scotland) Act 1987 and s.86 Housing (Scotland) Act 1987 for definition of tolerable standard

  • [11]

    11

  • [12]

    Chapter 8 para 8.58 Code of Guidance 2019  

  • [13]

    s.5(1) Housing (Scotland) Act 2001