06 April 2020

Homelessness law in Scotland and COVID-19

Homelessness law in Scotland and COVID-19

Ben Christman, trainee solicitor (benchristman@lsa.org.uk)

6 April 2020


There is no good time to be homeless, but it is difficult to imagine that there could be a more difficult period to be without a home than during a global pandemic crisis and national lockdown.

Homeless rights organisations have pointed out that “staying at home is not an option” for people experiencing homelessness, and that homeless people are a high-risk population due to being disproportionately affected by poor health. The outbreak will raise many important concerns for people in this situation in Scotland, which need to be carefully considered by decision-makers and advisers.

Despite our lives having changed immeasurably as a result of COVID-19, the law in Scotland on homelessness remains as it was before the outbreak. At the time of writing, no changes are being publicly proposed to this area of law in response to the crisis. This means that local authorities (councils) must still comply with the various statutory duties set out in homelessness law. An overview of these duties is given below.

This post discusses two potential problems that may arise in this area. The first concerns those who are vulnerable to developing severe illness from COVID-19 and are living in accommodation which may put them at a significant risk of being infected, and the second focusses on those facing the situation where the local authority decides to ‘discharge duty’ and cease providing them with accommodation.

We have assisted several people over the past few weeks who have faced similar circumstances to those described in this post, and COVID-19 will doubtless result in other difficulties for people experiencing homelessness.

If you are facing any of the problems discussed in this post – take advice urgently.

Our office is currently closed. We are available by phone and email for new and existing clients. Our contact details are as follows:

Phone: 0141 353 3354 (freephone number – 0800 316 8450)

Email: mail@lsa.org.uk

Overview of homelessness law

The law on homelessness in Scotland is governed primarily by the provisions in Part II of the Housing (Scotland) Act 1987. This Act gives local authorities several duties in relation to homeless persons and those threatened with homelessness.

The provisions of the 1987 Act include:

  • Where a person applies to a local authority for accommodation or for assistance in obtaining accommodation, a duty on that local authority to make such inquiries as are necessary to establish whether that person is homeless or threatened with homelessness (Section 28).
  • A duty to secure accommodation for a person who the local authority has reason to believe may be homeless (Section 29).
  • A duty on the local authority to notify a person of their decision as to whether the person is homeless or threatened with homeless and provide reasons for this decision (Section 30).
  • A duty to continue to accommodate a person who the local authority deems to have not made themself homeless ‘intentionally’ and to secure permanent accommodation for that person’s occupation (Section 31).
  • An applicant has a right to request a review of several types of decisions made by local authorities when carrying out their duties within 21 days of their being notified of any such decision (Section 35A).
  • A duty to follow a certain prescribed procedure in carrying out a review where it has been requested (Section 35B).
  • A duty to take ‘reasonable steps’ to prevent the loss of movable property of an applicant in certain circumstances (Section 36).

COVID-19 matters to consider

Vulnerable people in homeless accommodation

The current UK Government guidance on social distancing recommends that any vulnerable individuals (those over 70 years of age, pregnant women or those with underlying health conditions) should be particularly stringent in taking social distancing measures, due to their increased risk of severe illness if they develop COVID-19.

The risk is elevated for people with certain underlying health conditions (e.g. severe respiratory disease and some cancers) which separate UK Government guidance refers to as “extremely vulnerable” due to their “very high risk of severe illness from coronavirus”. The guidance recommends that people in this category practice ‘shielding’, which involves staying at home at all times and minimising all non-essential contact with other members of their household for a period of at least 12 weeks.

Vulnerable and extremely vulnerable persons will be concerned about the risk of being accommodated in hotels, hostels or other types of accommodation where there are communal facilities shared with others who are not members of their households (such as shared kitchens and bathrooms). Self-contained accommodation, where extremely vulnerable individuals are unable to fully carry out shielding and minimise contact with other members of their household may create problems also.

Living in these types of accommodation will make it very difficult to practice social distancing and shielding, which poses a significant risk to health and lives. This may create difficulties for local authorities who use routinely use such accommodation and may currently be accommodating many people who are particularly vulnerable to contracting the virus in these types of buildings.

Besides being very worrying for the individuals affected, this situation could have legal implications. Section 24(1) of the 1987 Act defines a person as being homeless where they have “no accommodation in the UK or elsewhere”. Section 24(2A) makes clear that a person “shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”.

In the circumstances where a vulnerable or extremely vulnerable person is housed in the types of accommodation described above, it could be argued that such accommodation would not be reasonable for them to continue to occupy, due to the risk that it would pose to their health.

In this scenario, the argument would run that despite having being provided with some form of accommodation by the local authority, because the accommodation is not reasonable for the person to occupy, they have effectively been left homeless in terms of the Section 24 definition. The consequence of this would be that the local authority would not meeting its Section 29 duty to accommodate the person.

In addition to this situation raising the potential for a breach of duty, it could raise questions connected to the right to life. This right is set out in Article 2 of the European Convention on Human Rights. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. This Section 6 duty applies to local authorities when they are carrying out their duties under homelessness law.

The right to life has been interpreted by the European Court of Human Rights as including a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction in the context of any activity in which the right to life may be at stake. Where a vulnerable person is accommodated in the types of accommodation described above, and the local authority is aware of the person’s health conditions but refuses to re-accommodate the person elsewhere, this may violate that person’s right to life.

Discharging duty and ending provision of temporary accommodation

When a local authority has taken a homeless application and has assessed the person as being ‘unintentionally’ homeless, it then has a duty under Section 31(2) of the 1987 Act to secure permanent accommodation for that person. Often this is done by the local authority arranging an offer of a Scottish secure tenancy with a housing association.

If a person refuses an offer of permanent accommodation, the local authority can then cease to be subject to the duty to accommodate them. This is often referred to as ‘discharging duty’ to the applicant.

Following a decision to discharge duty, the local authority is required to continue to accommodate the applicant for some time afterwards, to allow the applicant to make their own arrangements to find accommodation. In the words of the legislation, the local authority must, “secure that accommodation is made available for the applicant`s occupation for such period as they consider will give him a reasonable opportunity of himself securing accommodation for his occupation” (Section 31(3)).

In practice, this means that after a decision to discharge duty has been made to the applicant, the local authority will give them a further time-limited period in temporary accommodation, after which they are asked to leave the temporary accommodation.

In ordinary times, where a local authority has discharged duty to a person, that person would be advised to apply directly to social and private landlords for accommodation. However, in the context of the COVID-19 outbreak it will be very difficult (if not impossible) for someone in this situation to make arrangements to secure their own accommodation. Clearly being required to leave temporary accommodation would put a person at a real risk of being left street homeless.

In these circumstances there is a strong argument that the period which would give an applicant a ‘reasonable opportunity’ to secure their own accommodation should extend to at least the full duration in which the UK Government’s guidance on social distancing applies, and also for some time beyond the date on which such restrictions are lifted.

A local authority which discharges duty to an applicant then and insists on their leaving temporary accommodation during the period in which the various COVID-19 measures are in place may be in breach of their statutory duty to provide the applicant with a reasonable opportunity to secure their own accommodation.

Homelessness Covid-19