Homelessness Policy and Procedure

HOMELESS, OR THREATENED WITH HOMELESSNESS?

This section gives guidance on how the provisions relating to homelessness should be applied, including what is meant by 'homelessness' and the broad definition of 'family' under the legislation, what is meant by normally or reasonably residing with an applicant, and when it is not reasonable for an applicant to continue to occupy a house.

Legal Position

To be accepted as a homeless person for permanent housing under the terms of the 1987 Act an applicant must:-

be homeless or threatened with homelessness within 2 months of presentation as of the terms of 2001 Act
be in a priority need group
have not made themselves intentionally homeless
have a local connection with South Ayrshire

General

Subsection 1(a) of the 2001 Act amends section 24(1) of the 1987 Act so that people can only be considered as homeless if they do not have accommodation in the United Kingdom or elsewhere, (the 1987 Act said that only accommodation in Scotland, England and Wales could be considered), which he or she (together with any person who normally resides with the applicant as a family member, or in circumstances in which the local authority considers it reasonable for that person to reside with the applicant) is entitled or permitted to occupy in one of the following ways:

is entitled to occupy by virtue of an interest in it (for example as an owner or tenant) or by virtue of a court order;
has a right or permission, or an implied right or permission, to occupy (for example as a lodger or an employee with a service occupancy);
currently occupies as a residence by virtue of some protection given by law (for example, a person retaining possession as a statutory tenant under section 3 of the Rent (Scotland) Act 1984 or as a statutory assured tenant under section 16 of the Housing (Scotland) Act 1988, after the previous contractual rights to occupy have terminated). The person may have a positive right to occupy the accommodation, or may be protected only by a restriction on another person's right to repossess the accommodation.

When investigating whether accommodation is available outside of the UK for the applicant, staff should be sensitive in the manner in which they approach the applicant. Staff should appreciate the cultural and linguistic demands being faced by the applicants during such investigations.

Given the difficulty in ascertaining whether accommodation outside the UK is available, if evidence is not readily available, it should be assumed that the applicant does not have access to accommodation elsewhere. These cases should be discussed with the Homeless Service Manager prior to a decision being taken.

SUMMARY

A person is homeless if :-

He/She has no accommodation which he/she and his/her family is entitled to occupy.
OR
He/she has accommodation but, cannot secure entry to it
occupation will lead to violence or threats of violence
It is a moveable structure, i.e. mobile home, and there is no-where to site it.
To inhabit the property it may endanger the life of the occupant
It is not reasonable to continue to occupy it.

A person is threatened with homelessness if it is likely he/she may become homeless within 2 months. The two month limit is the statutory minimum period under the 2001 Act. In the case of someone being threatened with homelessness, the earlier an action is taken to prevent homelessness, the greater chance there is of success. Assistance can be given out-with 2 months for someone who is being threatened with homelessness.

Family Membership

Legal Position

Under section 83 of the 1987 Act someone is a member of another person's family if they are a spouse (or, partner, if they were living together as husband and wife), parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece as well as stepchildren, and people related by 'half' blood provided, of course, they were normally resident with the applicant. It should be noted that a family relationship created by marriage is held to be equivalent to one created by blood.

Residing with Applicant

The circumstances in which it would be 'considered reasonable....'.for a person to reside with the applicant' are limited to elderly or disabled people who must be looked after by a carer, and, foster children living with their foster parents. Although it is important to be aware of the possibility it is unlikely, based on past trends, that there will be many applicants in these two categories.

When is it not reasonable for an applicant to continue to occupy a house?

Legal position

Sections 24(2A) and (2B) of the 1987 Act provide that a person is to be treated as homeless even if he or she has accommodation, if it would not be reasonable for the person to continue to occupy it. What is 'reasonable' is a matter for judgement and will depend in some cases on the personal circumstances of the applicant. For example what might be reasonable for adults may not be for a household containing children, and mainstream housing may not be suitable for someone with physical impairments. This last point may apply even more to caravans and mobile homes.

However, under section 24(2B) a local authority may have regard to the general circumstances prevailing in relation to housing in the local authority's area, in determining whether it is reasonable for a person to continue to occupy accommodation.

Examples of how the 'unreasonable to occupy' test might be applied are given below.

The accommodation is below the tolerable standard (BTS), as defined in section 86 of the Act. However the fact that a house fails to meet the tolerable standard does not necessarily mean that it cannot reasonably be occupied. Whether a house is fit for occupation will depend on the reason, or reasons, for failure to meet the tolerable standard. It will further depend on the severity and expected duration of the problem, or the degree to which the particular individual or family concerned suffers serious inconvenience or a threat to health. Information about the severity of the problem may be available from environmental health officers. This should never be an issue out-with the private rented sector in South Ayrshire.

The applicant is living in bed and breakfast accommodation, which is not overcrowded within the meaning of Part VII of the 1987 Act. For example, a couple living in a single room with a baby under one year old may not be overcrowded under the Act, but it may be regarded as unreasonable for them to continue to occupy that room (depending on its size and the facilities available).

The applicant is living in a hostel or other accommodation such as a women's refuge, which is not intended to provide long-stay accommodation. Often there will be a fixed limit to the time a person can stay. The same general point applies to caravans and mobile homes.

There is external violence, including racial or other harassment. When external violence may be occurring, Staff should respond sympathetically to applications from people who are in fear of violence. The absence of previous violence does not prove that these fears are unjustified. Staff should take reasonable steps to obtain information to support the applicant's case. However, one should never seek information from a person who has been alleged to have been violent or to have made credible threats of violence. If it proves impossible to obtain confirming evidence, the person's expressed fears should be considered as sufficient evidence for assessing him or her as homeless. If evidence of violence is available, perhaps from the police, it will of course be relevant; but its absence should not result in the application being refused, bearing in mind that the applicant may not have approached a third party, or taken legal action, for fear of provoking further violence. Even if an applicant has obtained an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 guaranteeing his or her occupancy rights, or an interdict against molestation by a former partner, this may not always be sufficient to make it reasonable to expect him or her to continue to occupy the house.

Continued occupation of the accommodation poses a substantial risk to a person's health, which could include their mental health.

The accommodation is impracticable for a particular applicant because of his or her physical infirmities or disabilities.

Who else is homeless under the Act?

Legal Position:

Section 24(3) of the 1987 Act defines as homeless someone who has accommodation but cannot use it for one of the reasons listed below.

He or she cannot secure entry to it (section 24(3)(a)). This includes those who have a legal entitlement to accommodation to which they are unable to secure entry - such as unlawfully evicted tenants or occupiers who for some practical reason cannot immediately be restored to occupation of their homes.
An attempt to continue living in the accommodation would be likely to be met with violence or threats of violence likely to be carried out from someone else living in it, or from someone who previously lived with the applicant, whether in their present accommodation or somewhere else (sections 24(3)(b) and (bb)).

Staff should respond sympathetically to applications from people who are in fear of violence. The absence of previous violence does not prove that these fears are unjustified. Reasonable steps should also be taken to obtain information to support the applicant's case. However, staff should never seek information from a person who has been alleged to have been violent or to have made credible threats of violence. If it proves impossible to obtain confirming evidence, the person's expressed fears should be considered as sufficient evidence for assessing him or her as homeless.

If evidence of violence is available, perhaps from the police, it will of course be relevant; but its absence should not result in the application being refused, bearing in mind that the applicant may not have approached a third party, or taken legal action, for fear of provoking further violence. Even if an applicant has obtained an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 guaranteeing his or her occupancy rights, or an interdict against molestation by a former partner, this may not always be sufficient to make it reasonable to expect him or her to continue to occupy the house.

He or she has a mobile home, caravan, houseboat or other moveable structure but has no place where he or she is entitled or permitted both to put it or moor it and to live in it, (section 24(3)©). The two main categories of people for whom this clause would be applicable are as follows:

Owners of mobile homes or residential caravans who claim they are unable to find a pitch: however, in view of the considerable number of sites which are available in South Ayrshire it is almost certain that, under normal circumstances, a pitch could be found.

Travelling people unable to secure a pitch at the South Ayrshire Council owned Travelling Person's site at Houdston, by Girvan. If there was a travelling person faced with this situation, an attempt should be made to find a place on a site owned by another authority. If such a case did arise, it must be handled in conjunction with the Area Manager at the Girvan office and the Site Manager at Houdston. It is unlikely, based on previous trends, that there should be any difficulty in securing a place for travellers.

The accommodation is both overcrowded within the meaning of section 135 of the Act and may endanger health, (section 24(3)(d)). Both overcrowding and a danger to health must be present. Overcrowding standards are set out in sections 136 and 137 of the Act: if either of the standards (the room standard or the space standard, respectively) is contravened, there is overcrowding. From the applicant's point of view, the standards imposed by the Act are very onerous. They are also lengthy and detailed, and for this reason they are not included here. Nevertheless, it should be noted that if either the room standard, or the space standard, is contravened there is 'statutory' overcrowding. It is very unlikely that many applicants would actually be homeless in terms of the clause. If however, it appeared that an applicant might be homeless for this reason, an inspection of the property concerned must be carried out before any decision is made (Environmental Health should be asked to assist in property inspections of this nature).

As well as any overcrowding, it is also important to take account of the stipulation that the accommodation occupied may endanger the health of the occupants.

SUMMARY

Relatives and friends unable to accommodate:-

Confirmation should be sought that they can no longer or are not prepared to accommodate.

Private Tenants:-

Obtain copy of notice to quit ensuring landlord has given required notice and has properly served a valid notice. Advise applicant of rights if proper notice has not been given.

Owner Occupiers

In cases of repossession, copies should be obtained of default notices, Writs, Repossession Orders, Date of Sale, etc. before assessment of homeless application is concluded. Follow, also the Financial Hardship Procedures., (detailed later in this manual)
Tenants Who Have Left Their Homes:-
Check if tenancy is still available to applicant
Has abandonment procedure been carried out properly
Is it reasonable for the applicant to return to their tenancy.
Has eviction procedure been carried out properly.
Under what circumstances has eviction taken place i.e. Rent arrears, anti-social behaviour etc. (investigate possibility of intentionality)

Emergencies, Fire /Flood

If necessary obtain any reports from Police, Fire Services, etc.

Travelling People:-

Check reason why applicant is unable to remain on site.
If applicant states that there are medical reasons why the caravan is unsuitable, refer to the Clinical Medical Officer for advice.
If applicant cannot remain at site for fear or threats of violence, seek substantiation from Police, site manager etc.
If the caravan is unfit for human habitation as is defined by the statutory standard as per the Housing Scotland Act 1987.

Houses Unfit for Occupation

The Code of Guidance advises that it could be unreasonable to occupy a house which is below the tolerable standard defined in Section 86 of the 1987 Housing (Scotland) Act. The views of Environmental Health Officers should be sought in every instance, and these views together with any medical information produced by the applicant, will enable a decision to be made.

Person Suffering or in Fear of Domestic Violence.

All reasonable steps should be taken to obtain information which supports the applicant's case. Therefore written evidence should be sought from one or more of the under noted sources:-
Social Work Services
The Police
G.P Health Board
The Courts, (the applicant may have an interdict ordering his/her partner not to molest them).
Women's Aid

GENERAL

If the applicant is advancing medical reasons in support of the application, then a medical application form should be completed together with any relevant information supplied by the G.P or other health professional. The Council may refer some cases to the Clinical Medical Advisor.