Problems in temporary accommodation

The duty is solely dependent upon whether the applicant may be considered to be homeless. The local authority cannot take into account local connection, income or any other factor not directly relevant to the question of whether the person may be homeless.

Temporary accommodation should be provided at the point when it is needed and then the local authority should make further inquiries. [1]

A homeless applicant can advise the council that they would prefer to make their own arrangements for temporary accommodation. Applicants may prefer to stay with friends or relatives on a temporary basis while the authority carries out its inquiries or until an offer of permanent accommodation is made. This does not affect their homelessness status.

Occasionally a client may prefer to remain in accommodation which is unreasonable to continue to occupy (in the long term), until a permanent offer is made. However, the council should not insist that they do so. Temporary accommodation should be made available if they request it.

See Charges for accommodation

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. [2]

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.

Where a local authority has a full housing duty it may perform this duty in stages, for example by providing temporary accommodation in bed and breakfast accommodation before allocating long-term accommodation. [3] 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. [4] If local authorities do use bed and breakfast or similar accommodation, it should only be used for as short a time as possible. [5] In almost all circumstances bed and breakfast accommodation is unsuitable for homeless households [6]

See also standard of temporary accommodation

Where a client is being evicted from temporary accommodation advisers should establish:

• At what stage is the client’s homeless application

• What is the reason for eviction

• Is there a written agreement regarding the accommodation

• How much notice has been given

• Has notice been given in writing

Advisers should try to get copies of any relevant documents including any occupancy agreement. Once the adviser has this information they may be able to consider whether:

• Has a Scottish secure tenancy been created

• Has rent been been accepted after the expiry of a notice to quit

• Is the client living in hostel accommodation

(Further information on each of these situations can be found below)

In all cases, if it has not been possible to persaude the local authority not to evict, the client should be referred to an experienced housing adviser and may require a referral to a solicitor.

Homeless accommodation is exempt from being a Scottish secure tenancy but only ‘if the house is being let to the tenant expressly on a temporary basis, for a term of less than 6 months, in fulfilment of a duty imposed on a local authority by Part II (homeless persons of the Housing (Scotland) Act 1987’ [7].

However, in one case it was held that where a local authority had issued an occupancy agreement which did not contain ‘an express agreement that it was for a term of less than 6 months’ they had in fact created a Scottish Secure tenancy. [8]

Lord McGhie stated (in Paragraph 8)

“…the intention of Parliament, in the present context, must have been to require something which drew the attention of the tenant to the fact that the term was to be for a period of less than six months.  We accept that the provision does not require use of the actual words ‘term of less than six months’. But we are satisfied that it is necessary to find some wording with equivalent effect stating that the duration of the agreement is for some explicit period which does not exceed six months or that the occupancy is to come to an end at some point within six months.  Such a provision would not prelude express reference to the possibility of a further agreement allowing occupancy to continue after that period.”

Advisers should be alert therefore to any ambiguity over the term of the agreement. This may be the case even if there is a clause in the agreement stating that the tenancy is ‘specifically excluded from being a secure tenancy...’ if there are other provisions which suggest that the term may actually be indefinite or longer than six months. Advisers should look very carefully at the precise wording of the written agreement, and seek advice from a specialist housing law solicitor if there is any uncertainty.

Where a temporary tenancy has been ended by the issuing of a notice to quit, but there has been a continued acceptance of rent beyond the notice to quit expiry date, then it may be arguable that a new tenancy has been entered into. [9] As a new tenancy (presumably with no written agreement), potentially it may not be exempted from being a Scottish secure tenancy as it would be unable to have any sort of expressly defined term and therefore it could arguably be a Scottish secure tenancy. However, this situation is complex and has not been tested. Advice should be sought from experienced housing law solicitor.

Hostel accommodation is not protected by the requirement for court proceedings to evict [10]. This can cause difficulties, for example where a homeless applicant has been asked to leave due to alleged bad behaviour.

Advisers should therefore be alert to the legal definition of ‘hostel’ accommodation: [11]

• It must be residential accommodation

• ‘Otherwise than in houses’ – ‘houses’ meaning any part of a building being occupied as a separate dwelling [12]

• There must be board or common facilities for the preparation of food.

Where these criteria are not met it is arguable that the client is not occupying a hostel and as such it will be unlawful for the local authority to evict without a court order. In either case the client should be referred to an experienced housing law solicitor.

The duty to provide temporary accommodation can be seen to be discharged if:

• the applicant unreasonably refuses an offer of accommodation or

• the applicant's behaviour in temporary accommodation is such that they persistently refuse to observe any reasonable rules set down by the local authority. [13]

A client who has had their temporary accommodation discharged should be referred to an experienced housing adviser and may need to be referred to a solicitor.