Homing in on your rights: Most Scots don't understand the complexities of homelessness law

FOR most Scots, being homeless is still understood as sleeping on park benches.

That is, until a relationship breaks down and an individual suddenly needs to find a new home.

The variety of situations in which someone finds themselves without a home was tackled by the safety net of laws such as the Housing (Scotland) Act 2001 and Homelessness etc (Scotland) Act 2003.

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Now, the fourth edition of Homelessness and the Law published by the Legal Services Agency takes the first look in five years at how legislation is being used by local authorities and homeless individuals.

Author Tom Mullen, professor of law at the University of Glasgow, says most Scots do not need to understand the complexities of homelessness law, but it is helpful to know it's there.

He explains: "I don't think the general public realise how broad the definition of homelessness is, or that homeless people in Scotland have more extensive rights than those in England and Wales.

"It's quite unusual to have defined legal rights to assistance for homeless people, and even where they do, they tend to be for a narrow class of people such as rough sleepers.

"This is a complicated area of law, partly because legislation has become more complicated over the years and there is a need to read a lot of case law."

Cases end up before the courts when individuals are told they are not homeless within the meaning of the act, says Prof Mullen.

Other examples include someone being accepted as homeless but not as having "priority need" - the main rationing device.

Courts can also debate if someone is intentionally homeless, also a rationing device. Prof Mullen says it was a concern at the time the legislation was written that claiming to be without anywhere to live could be used to jump the queue to get social housing.

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"The most substantial cause of homelessness is relationship breakdown and the splitting up of families," Prof Mullen explains. "It's difficult to underestimate the effect of the changes that have taken place in the law.

"The key thing is to have access to advice of appropriate quality.

"Housing advisers need to know this, and there needs to be good links between lay advisers and solicitors. It's also important for local authorities to understand this stuff because they have duties under the legislation.

"Because there is a degree of discretion in decision-making, you have to make a decision between what's legal and what's the best. The court can only intervene when a decision is illegal."

Legislation in the home nations has been unified, diverged, drifted back together and diverged again.The Scottish Parliament has ensured there are now "substantial" statutory rights for homeless persons compared to south of the Border.

But as Prof Mullen points out, many case law examples apply in Scotland and the fourth edition of the book looks at many cases in England that are relevant.

Almost a decade on from the 2001 legislation and seven years after the 2003 Act, Prof Mullen says there is case law beginning to emerge that is relevant to both housing officers and the legal profession.

"Things have moved on," he says. "Housing advisers and solicitors need to understand this. The public don't need to know the detail, but they should appreciate the extensive rights and the strong safety net that's there for them."

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By 2012, every homeless Scot will have the right to a home with the category of "priority need" being removed.

Gordon MacRae, head of communications and policy at Shelter Scotland, says: "The 2012 commitment was challenging when it was set in 2002 and remains so today. Shelter Scotland's analysis shows that many councils are responding enthusiastically to the challenge and are at or ahead of target. A minority are trailing behind."

Cosla says local government in Scotland has made progress towards meeting the 2012 deadline, but as spending resources are cut, the demand for housing is likely to increase.

Councillor Harry McGuigan, Cosla spokesman for community wellbeing and safety, says: "Local government remains committed to tackling homelessness, through prevention and early intervention measures to stop homelessness occurring in the first place, and by providing housing and a range of other support services to homeless households.

"However, our ability to house homeless persons is restricted by the availability of suitable accommodation. We will continue to work positively to eliminate homelessness but do require adequate resources to meet demand.

"Homelessness is not simply about housing and it is essential that all the key stakeholders play their part."

• For more information, log on to: www.lsa.org.ukx