Establishing a local connection

The rules have changed regarding local connection. Where a client makes a homeless application on or after 29 November 2022, a local authority can no longer refer them to another Scottish local authority under section 33(1) of the Housing (Scotland) Act 1987. [1]

This power has been suspended, not permanently repealed. The Scottish Government will monitor the impact on homeless applicants and local authorities to decide whether the s.33 power can be permanently removed. [2]

When the suspension does not apply

The suspension does not apply to:

• referrals to local authorities in England and Wales

• applications where a person is applying as homeless in Scotland, having come from England or Wales

For homeless applications made prior to 29 November 2022, local connection can still be considered in order to make a referral to other Scottish local authorities.

These criteria apply to either the applicant, or to anyone who would normally be expected to reside with the applicant. [3] The local authority should consider all of the following aspects of local connection and this should be demonstrated in their decision letter. [4]

These criteria will mostly apply where a homeless application was made prior to 29 November 2022, as provisions to make s.33 referrals to other Scottish local authorities have been suspended. [5]

The Code of Guidance suggests that normal residence might be taken as residence for at least six months during the previous twelve months, or not less than three years during the previous five years. There is no requirement that the period of residence should be continuous therefore separate periods of residence (provided they are of the applicant's own choice) can be added together. [6] Those time limits are guidelines only and the local authority should not fetter its discretion by failing to consider the special circumstances of the applicant.

Normal residence is only established if it is the residence of choice. Residence is defined as not of choice if it is the result of, detention under an Act of Parliament or accommodation provided for asylum seekers and their dependents. [7] However, residence during service in the armed forces can be used to establish local connection to an area. [8]

Long-stay hospital patients, with no home of their own, who do not have a local connection with the area in which the institution is located should have their views on where they wish to live taken into account. [9] A person does not have to be resident in a local authority's area before being admitted to that local authority's housing register on special social or medical grounds. [10]

The Code of Guidance states that temporary employment for a 'substantial period' should be considered, and that part-time employment should be treated in the same way as full-time employment. [11]

The Code also states that casual employment may or may not be regarded as establishing a local connection, depending on individual circumstances. [12]

Members and former members of the armed forces can establish a local connection on the basis of their employment in an area while serving in the regular armed forces . [13]

The 1987 Act states that the following are to be treated as family: parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews and nieces. [14] This was clarified the McMillan case where the local authority had refused to recognise the applicant's grandfather and aunt as legitimate local connections despite the fact they had stayed in the area all their lives. [15]

The Code of Guidance suggests that family members should have been resident in the area for five years. [16] However, in a Scottish case the judge stated that to 'demand a five years' period of residence with the residence continuing to date before a relation can be taken into account seems...to involve the adoption of too rigid a rule'. [17]

An authority is free to find that any applicant has a local connection with its area for any reason it may decide. In McMillan the court held that this matter is separate from the other headings and must be considered in its own context. [18] The Code of Guidance gives examples of what may constitute special circumstances: [19]

• The need for continuing education or health treatment for a household member in a particular local authority area

• Where the applicant has no current local connection with any area, returning to an area where the applicant was brought up or lived for a considerable period of time previously. The Code suggests that this may be particularly important for those who have lived abroad for some time or have been serving with the armed forces. [20]

There is little case law from which to provide further examples of what might constitute exceptional circumstances. It has been ruled unlawful for a local authority to define rigid limits by having a policy of referring all applicants without local connection to other councils, however exceptional the circumstances. [21]

A person may acquire a local connection if their circumstances alter. If, for example, someone finds employment in the area or has acquired accommodation for a reasonable period then subsequently becomes homeless they can re-apply to the authority. [22]