scots law
basic advice from govan law centre

homelessness - practical and legal issues when fleeing from violence









 

This short briefing examines practical and legal issues that may arise where persons are either:

      • about to lose their current accommodation; or

      • have no shelter whatsoever.

In other words – preventing rough sleeping – where there may be little time available to the advisor to do so. In this briefing, it is assumed that the client has no difficulty in demonstrating ‘priority need’ and is not ‘intentionally homeless’.

LEGAL STARTING POINT  (definition of homeless or threatened with).

Where someone has no accommodation or is about to be ejected from accommodation – you would imagine they would come within the definition of “homelessness” or “threatened with homelessness” as set out in section 24 to the Housing (Scotland) Act 1987.

(Note: The Housing (Scotland) Bill 2001 will substantially amend the law on homelessness in Scotland; on 14 March 2001 the Bill passed its Stage 1 in the Scottish Parliament. It is currently at Stage 2- line by line examination. To find out the progress of the Bill you can go to the Scottish Parliament website).

  • In practice – a major practical difficulty arises where that person has fled domestic violence – or more typically where families have left accommodation due to anti-social behaviour, intimidation, and violence.

  • ISSUE – NOT ACCEPTED AS HOMELESSNESS – how do you deal with this with a view to possible litigation if negotiation is unsuccessful?

  • Firstly, you must ensure the client has been ‘determined’ under Part II of the Housing (Scotland) Act 1987.

        • Determination letter – section 30 (notification of decisions and reasons).

        • It is not unusual for housing officers to not bother treating the person’s application as a ‘homeless application’ – client told to ‘return to their accommodation’ – not at liberty to do so without providing a determination under the 1987 Act .

        • The ‘determination’ is crucial from a judicial review point of view – as this would be the ‘decision’ to be challenged and potentially reduced.

        • Failure to determine? – adviser should fax and telephone the housing office insisting same – advising JR for unlawful decision to determine under section 28 (inquiries) and section 30.

        • In ‘violence or threatened violence cases’ – important to remember the duty on local authorities to “make  such enquiries as are necessary” (section 28) – the applicant must co-operate – but the onus is on the council to investigate – can’t simply determine an application without investigating the applicant’s allegations.

        • EVIDENCE? Police checks; checks with social work department; checks with corroborating witnesses; GPs. Local authority should carry out.

        • If the Council is adamant the applicant is not homeless (and should return to their home) then the advisor should in-gather all of the evidence.

        • Such evidence (by way of letters, and statements etc.,) may prove fundamental to any petition for JR – record as accurately as possible as errors can come back to haunt.

  • Ultimately – the applicant will require to argue that they are homeless in terms of section 24(2A) –

“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy”.

WHAT HAPPENS IF - the housing office quickly produce a determination letter (after minimum, if any enquiries) advising that the council have no legal duties to the applicant? (as not homeless etc.,).

ISSUES ON STALEMATE?

This next section deals with the situation where you have tried to use the Code of Guidance on Homelessness to negotiate – but negotiation has failed – and the next day or so, your client is facing no-where to live.

·       Looking at order for interim accommodation/interim interdict (if in temporary accommodation) by way of Petition for JR at Court of Session.

·       How do you get there?

REQUIRE:-

§      The written determination.

§      Evidence which underpins applicant’s case (e.g. evidence that have fled from violence or threats etc., viz., ideally independent witnesses).

§      In order to raise JR proceedings – applicant would have to eligible for civil legal aid.

§      Rules of civil legal aid – SU4 emergency cover – expenses rules if fail; civil legal aid application within 28 days.

§      Tee-up Edinburgh agents and Advocate to draft petition for Judicial Review.

§      Caveat – rules on - the Council may have to be provide with an opportunity to oppose interim order sought in court.

§      Can do next day if pull all stops out – time consuming.

§      First orders (for service of the petition) and interim orders (for example, to prevent ejection or to order that accommodation be provided ad interim).

§      First hearing - where full legal arguments are heard.

§      Expenses – if have to abandon - liability to the client?

The client will require immediate access to a solicitor experienced in the field of homelessness and judicial review. Contact your local law centre (who employ solicitors experienced in this field), or one of Shelter’s housing aid centres (addresses are in the telephone directory) who have access to in-house housing solicitors with experience in this field.

Mike Dailly Solicitors
December 2000