Referral to another local authority

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This power has been suspended, not permanently repealed.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.

The local authority may refer the applicant to another local authority only if they are satisfied that the applicant is homeless and is not intentionally homeless; and they are satisfied that the conditions for referral are met. [3]

The conditions under which referral may be made to another local authority are that the applicant and anyone who may reasonably be expected to live with the applicant:

• has no connection with the authority the application has been made to [4]

• has a connection with another local authority's district [5]

• is not at risk of domestic abuse in that other district. [6]

All three conditions must be fulfilled before a referral may be made. If there is more than one local authority area to which a referral could be made, the applicant's wishes should be taken into account. [7] There is no such thing as a 'stronger' local connection with one area than another, ie if there is a family association it is irrelevant that there are stronger family associations elsewhere. [8] A referral cannot be made if the applicant has a local connection with the area the application is made to, even though a 'stronger' local connection with another local authority exists.

If the applicant objects to being referred to another area because of family connections they should not be referred. [9] This is particularly important in cases involving abuse and/or violence.

There can be no referral if either the applicant or any person who might reasonably be expected to reside with the applicant will run the risk of domestic abuse in the area of the authority with which they have a local connection. [10]

A person is at risk of domestic abuse in this context if an applicant runs the risk of abuse from anyone with whom (if it were not for the risk of abuse)  might reasonably be expected to reside, or they run the risk of abuse from any person with whom they used to live. [11]

Some local authorities attempt to refer back to larger local authorities arguing that the local authority with which the applicant has a local connection is large enough to move the applicant to a safe distance in the same local authority area. However the 1987 Act refers to 'risk of abuse in the local authority's district '. [12] The Code of Guidance states, 'An applicant cannot be referred to another local authority if there is a risk of domestic abuse'. [13]

Although current case law seems to indicate that it is only domestic violence that is relevant [14] in the local authority's decision-making on referral of the application, the Code of Guidance also refers to external violence and advises that 'local authorities should also take into account any known risk of external violence to the applicant when deciding whether to refer an application'. [15] Local authorities should demonstrate that they have considered this before reaching their decision.

If the applicant has no local connection with either the authority to which an application is made, or to any other authority in Scotland, England or Wales, then the responsibility for dealing with the application rests with the local authority applied to. [16] It is the duty of the authority to which an application is made to make sure that accommodation is made available.

The authority to which the applicant originally applies has a duty to secure interim accommodation for the applicant until such time as an agreement has been reached on the issue of referral. Once the agreement is reached the duty lies with whichever local authority has responsibility. [17]