Out in the cold: the gap between theory and practice in Scotland’s homelessness legislation

Kevin was in prison for non-payment of fines. His rent arrears built up while he was inside and when he came out, he was homeless. Asked whether he’s been offered temporary accommodation, he says: “It’s always the same story: there’s no spaces.”

“The excuse, or not excuse, but what they tell you is, the night shelters are open,” he adds.

Kevin is trying to bid for council housing, but there is 12 to 18-month wait. He says there is a gold, silver and bronze priority. He doesn’t know what priority he is but thinks he should be gold by now after being homeless for so long. You can only bid for council housing on the internet, though, and he has no internet access because his mobile phone was stolen one night in the night shelter.

It’s a similar story for John. He became homeless after being in hospital for nine months, seriously ill with a condition that has left him in a wheelchair. He couldn’t keep up with the bills while he was hospitalised and lost his home. When he was discharged, he had no one to help him and no benefits. He has been on the streets, begging to raise enough money to get a hostel or a B&B since then, something he describes as “soul destroying”. He has been without accommodation for over a year and only now has he been told the council is going to house him before Christmas.

Veronica, a middle-aged lady who speaks very little English, can only say, “cold, very cold,” as she sits underneath a sodden sleeping bag and weeps.

This is just a snapshot of a few people currently homeless on the streets of Edinburgh. None of them should be there, according to the laws already in place in Scotland. Every homeless person with nowhere to go must be provided with temporary accommodation by the council. This is not optional and must be provided in every single case. Night shelters are not temporary accommodation and cannot be used by councils to meet that duty.

But the latest annual homelessness statistics showed that people were turned away by local authorities and denied their right to a home on 3,535 occasions in 2018-19 – the vast majority (95 per cent) of those in Glasgow – often leaving them forced to sleep on the streets. And the percentage of people registering as homeless who had slept rough at least once in the previous three months increased from seven per cent in 2014-15 to eight per cent in 2018-19. However, the real number of those not being provided with temporary accommodation is likely to be even higher as there are undoubtedly many rough sleepers and others in insecure accommodation who are not included in the official statistics.

And failure to provide temporary accommodation is not the only area where councils are breaching the current law. In 2018-19, 3,415 families with children and pregnant women were trapped in unsuitable temporary accommodation and there are 620 instances where the law around such accommodation was broken by 11 councils, the majority of those (75 per cent) in Edinburgh.

Graeme Brown, of homelessness charity Shelter, notes that we have “very progressive legislation” in Scotland and praises the Scottish Government for recognising the problem and trying to address it, although he suggests that the £50m investment is not enough.

“There are some very good, solid, well-intentioned pieces of legislation,” he tells Holyrood. But I think the problem we have is that, if you like, the institutions who are delivering that have not adapted, have not changed. Yes, they have been under pressure. But…I would contrast the experience of local authorities in England to Scotland. Local authorities in England, in some cases, [have had] fees cuts of 25 per cent. I think the last reading I had from COSLA was expecting a real-terms reduction of about three and a half per cent in Scotland.

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“So, you know, no one’s downplaying the strain that will put on a range of services that local authorities provide, but they haven’t had it as tough as they have had down south. And I just feel that there’s been a level of inability to actually change the intent, to change the culture and to change the way that local government actually operates with real people when they’re having problems… I would say that a lot of public administration or a lot of public agencies have been slow to really grasp some of the real fundamentals of the legislation and what it actually requires from people.”

Shelter is taking the unprecedented step of taking Glasgow City Council to court over its repeated failures to meet its statutory duty to house homeless people, using ‘gatekeeping’ to turn people away. It is clear that Glasgow is not the only council that is breaching its legal duties, but the situation in Glasgow has roots going back a number of years. There has been “five, six, seven years of pushing and arguing and saying there is a fundamental problem here that people are not getting the service they require, and frankly, they’re entitled to,” Brown says. He suggests it’s about a deliberate rationing of resources: “No one would deny that Glasgow faces significant problems, but people are facing significant problems in other agencies around the country as well. And we had, in the Glasgow case, met with political leaders, including [former council leader] Frank McAveety – I mean, that shows you how long ago that was – we met with previous directors of social work who had responsibility at that time for homelessness services. We’ve met with executive officers, with chief executives. We’ve met with the current administration. And we’ve also met with the Scottish Housing Regulator,” he says.

He adds that: “Unless people have their rights clearly articulated, and unless they’re able to exercise those rights in a reasonably straightforward way, which doesn’t require the assistance of a constitutional lawyer, then there’s little point in having the very progressive legislation.”

Since Shelter launched the court case, the Scottish Housing Regulator has also announced it is investigating Glasgow City Council.

Brown notes that those sleeping rough are “only the tip of the iceberg” of the over 36,000 people who are homeless, some of whom are in hostels or other temporary accommodation, sofa surfing or staying with relatives. It’s the equivalent of a good-sized town, he comments. Shelter is “pushing very hard” the notion of housing as a right, but Brown wants any new legislation to be meaningful.

“I notice that the First Minister’s advisory group on human rights, which reported in December last year, acknowledged that and supported that. We’ve to see yet how that actually translates into both legislation and action. But what we don’t want is another cascade of acts of parliament and regulations or guidance. What we want is for the ordinary citizen to be able to understand what they’re entitled to, what local authorities and other public bodies are required to do, and for them to be able to hold them to account to do that.”

Holyrood asked housing minister Kevin Stewart what the point was in having such good legislation if it was not enforced and whether the Scottish Government rather than a charity should be taking more action on breaches. He noted that “all local authorities have the responsibility to meet their existing statutory obligations and provide people with appropriate accommodation and services” and that the Scottish Housing Regulator has the role of protecting the interests of tenants, people who are homeless and others who use social landlords’ services.

The Scottish Government currently has a working group of experts and key partners, supported by Crisis, that will consider options for a new law with the aim of ensuring all public bodies work together to prevent homelessness. The prevention duty group will make its recommendations in summer 2020.

Much of the focus of the Scottish Government work has been on prevention of homelessness, a priority Shelter also endorses, with a shift towards rapid rehousing.

The Unsuitable Accommodation Order, which limits the amount of time that children, families and pregnant women can be housed in temporary accommodation, will be extended to all homeless people from May 2021, effectively ending the use of B&Bs altogether, except in emergencies.

“Temporary accommodation provides an important safety net for people in emergency or crisis, such as those fleeing domestic abuse, though we are clear such arrangements must be for as short a time as possible and the accommodation will be of consistent high quality across property types and tenures,” Stewart says.

But with the current laws already being breached, will further changes in the law truly effect change in practice? Without the legislation actually being followed in reality, it’s just “a bit of window dressing”, Brown says.

Asked what ‘good’ would look like, he replies: “I don’t think it’s that complicated, to be honest… I don’t think that we should have systems that are particularly complex. You know, if you’re unintentionally homeless, there’s a quick assessment done of that, we make the judgement, we put you in temporary accommodation, we place you in temporary accommodation of a decent standard and we get you into permanent accommodation as soon as it’s practically possible. I mean, that’s the answer.”