World-class housing laws risk being ‘rendered useless’ by repeated breaches

First published by The Herald on 16 January 2019

WHEN the Scottish Government passed a law that gave anyone at risk of homelessness the automatic right to be housed in temporary accommodation, then Deputy First Minister Nicola Sturgeon hailed the introduction of “the most progressive homelessness legislation in Europe”.

Previously, anyone presenting as homeless had to prove they had a priority need such as dependent children before their local authority would consider offering them temporary housing. After the abolition of the priority need test in November 2012, however, anyone finding themselves unintentionally homeless, regardless of their circumstances, had the legal right to be given that accommodation.

Yet six years on from that change to the law local authorities across Scotland are failing to meet their legal obligations, with thousands of applications for temporary housing being refused in the past two and a half years.

Figures provided by Scotland’s 32 local authorities under freedom of information (FOI) legislation show that at least 12,455 requests for temporary accommodation were refused between April 2016 and October 2018. Although the overall total is likely to be significantly higher due to a number of councils – including Aberdeenshire, East Renfrewshire and Midlothian – not recording instances when requests were refused, in Glasgow alone the city administration was unable to provide temporary accommodation on 9,052 occasions over the 30-month period.

According to Glasgow’s FOI response, the main reasons for this were that no accommodation was available, the person making the application had already been excluded from all suitable housing and there was no stock suitable for applicants with mobility issues.

Similarly, Fife Council did not provide temporary accommodation on 1,418 occasions, Edinburgh on 1,101, Dundee on 330, Moray on 182, West Lothian on 149 and South Lanarkshire on 100. The reasons across the local authority areas varied from no suitable accommodation being available and providers refusing to accept applicants, to applicants refusing to move in either because of the location or reputation of the housing being offered.

Despite the various reasons given for the breaches, Govan Law Centre’s principal solicitor Mike Dailly said the figures are “extremely concerning” given that temporary accommodation is supposed to be the safety net used to prevent people from making the initial move into a cycle of homelessness.

“Having world-class rights for people who are homeless is rendered almost meaningless if legal rights to temporary accommodation aren’t respected in practice in Scotland,” he said.

“Temporary accommodation is a lifebuoy for people who have nowhere else to sleep; it should be a short-term solution on the road to a permanent tenancy. But if you can’t get on the first step of homeless services, what hope have you to get a proper home?”

The wider issue, as far as Shelter Scotland principal solicitor Fiona McPhail sees it, is that people presenting as homeless are often unaware that councils have a legal obligation to stop them ending up on the streets, while those who are aware are unlikely to have the means to assert their legal rights.

“There are very few lawyers who do this type of work – you’re talking about a legal aid lawyer who does homelessness law,” she said. “There will be advice deserts while eligibility for legal aid can also be a problem. Some clients – those who are not on benefits but who are on a low income – might have a contribution to pay and that may make them think twice. The legal remedy is an application for judicial review at the Court of Session and that [can become expensive because it] involves getting advocates as well.”

Despite that, the work Shelter does shows that challenging local authorities in the courts produces results, with Ms McPhail noting that “in the vast majority of cases where the issue is that no accommodation was offered, when we challenge it, it is then offered”.

From the Scottish Government’s point of view, while some local authorities are facing “particular challenges” when it comes to providing temporary accommodation, the focus for now is on transitioning to what housing minister Kevin Stewart called a “rapid rehousing approach” rather than looking at ways of ensuring existing rights can be enforced.

While this should eventually lead to temporary housing being freed up for other users more quickly, it will be some time before the strategy is fully rolled out, with local authorities expected to submit their individual transition plans in the spring ahead of a shift towards making the provision of settled housing – whether through rapid rehousing or the so-called housing first approach – the norm from 2023.

“Scotland already has some of the strongest rights in the world for anyone experiencing homelessness – including the right to emergency temporary accommodation if they need it – and we have set out a programme of work to ensure that homelessness is prevented and tackled right across Scotland,” Mr Stewart said.

“While temporary accommodation provides an important safety net in emergency situations, we are clear such arrangements must be for as short a time as possible.

“We are working with all local authorities as we recognise that some of them face particular challenges in providing appropriate housing for homeless families, which is why we provided an additional £23.5 million for rapid rehousing and housing first.”