practical and legal issues when fleeing from violence
This short briefing examines practical and legal issues that may arise where persons are either:
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).
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?
§ The written determination.
§ Evidence which underpins applicants 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 Shelters housing aid centres (addresses are in the telephone directory) who have access to in-house housing solicitors with experience in this field.