One of the barriers to accessing homelessness services – priority need – was abolished in 2012. However, if a person is homeless, the local authority must still carry out a three-part investigation to establish whether they have a duty to offer that person accommodation.
The investigation must answer the following questions and must do so in this specific order:
- Is the person homeless or threatened with homelessness?
- Is the person intentionally homeless?
- Does the person have a local connection with that local authority area?
The Housing (Scotland) Act 1987, the main piece of housing legislation, as amended by the Homelessness etc. (Scotland) 2003 Act, describes when a person is intentionally homeless. This is the case if they deliberately did, or failed to do, anything leading to the loss of accommodation that was reasonable for them to occupy. Local authorities have a legal duty to investigate whether an applicant has become homeless intentionally.
A person’s local connection to an area is clarified as:
- They are, or were in the past, normally resident in the area and this was their own choice – OR –
- They are employed in the area – OR –
- They have family associations in the area – OR –
- Special circumstances apply
Currently, local authorities have a discretionary power under Section 33 of the 1987 Act to refer unintentionally homeless households, without a local connection to that area, to another local authority where there is a connection.
So, what’s going to change?
In 2017, the Homeless and Rough Sleeping Action Group (HARSAG) was set up with a remit to end rough sleeping and, eventually, homelessness in Scotland. In their interim report of May 2018 p.6, they recommended that:
“The Scottish Government should revise the legislative arrangements on local connection and intentionality. Specifically, they should commence the current provisions on intentionality in the Homelessness etc. (Scotland) Act 2003 and narrow the definition to focus on instances of ‘deliberate manipulation’ of the homelessness system. In addition, they should commence the provisions on local connection in the 2003 Act and Ministers should exercise powers they would then have under S8 [Section 8 of the Act] to suspend to suspend referrals between local authorities to remove barriers to support for people who are homeless or rough sleeping or at risk of homelessness or rough sleeping. Scottish Government should monitor the impact of these changes on local authorities to respond to any LAs [Local Authorities] coming under undue pressure as a result of disproportionate net inflows.”
The Scottish Government carried out a consultation during the first half of 2019, to which 72 responses were received. This consultation specifically focused on the issues of intentionality and local connection and whether there was an appetite for changing the process.
What will these changes mean in practice?
Local authorities’ duty to investigate intentionality would change to a discretionary power
Local authorities will no longer have a legal duty to investigate whether someone is intentionally homelessness. Instead, this becomes a discretionary power.
The impact of this change on homeless people will be twofold. Firstly, removing the statutory requirement to examine whether a housing applicant has made themselves intentionally homeless can enable a more holistic view of their circumstances. This can improve access to housing and appropriate support, particularly for more vulnerable people.
However, there is a concern that this may lead to inconsistency of practice, with some councils choosing to investigate intentionality and others choosing not to do so. This may result in applicants in one area getting a different service from those elsewhere.
Secondly, there is a discussion to be had around the need to provide support for people who, for example, do not pay their rent, and so come up against the ‘deliberate manipulation’ rule.
Removing the requirement for a local connection may result in more demand in some areas
Changing the local connection rules is more complicated. Section 8 of the Homelessness etc (Scotland) Act 2003 gives the Scottish Ministers the power to make an order restricting the operation of the local connection referral rules.
Within 12 months of making such an order, the Scottish Ministers must consult with appropriate bodies. They must then issue a statement setting out how any changes will be implemented.
The impact of any change to the local connection rule may impact on local authorities in different ways. There may be greater demand for services in some areas, which may result in more pressured housing markets, a rise in homelessness applications and a strain on resources.
Other areas may see homelessness applications fall as people choose to apply elsewhere. However, this may be positive for more vulnerable groups, such as those with addiction issues. They may not wish to return to their home area and a lifestyle they may want to escape.
The impact of these changes on all local authorities will be monitored using existing data sources. These will highlight any impact of the changes on individual local authority areas and identify any further provision to be made in the future.
When will these changes happen?
The Scottish Government anticipate that these changes to the local connection and intentionality provisions will be implemented from November 2019. The changes to the intentionality rules would come into force immediately.
However, due to the more complex legislative process around changing the local connection rules, work is expected to begin in November 2019, but implementation would remain a year or more away.
Alex Marks
SPICe Senior Researcher (Housing)