Advice if you are worried about losing your home (Scotland)

This fact sheet tells you what kind of help you might get if you are homeless or threatened with homelessness within the next two months. It explains your rights, and how to deal with some of the common homelessness problems.

Use this fact sheet to:

• work out what housing you might be able to get;
• help you apply to the council as homeless;
• understand the process the council must follow; and
• deal with problems you may face in trying to get housed.

What help can you get?

Councils have an obligation to help certain people find accommodation. Their responsibility is set out in The Housing (Scotland) Act 1987 (as amended) and The Housing Scotland Act 2001.

Your council must re-house you if it decides you:

• are eligible for assistance;
• are homeless; and
• have not made yourself ‘intentionally homeless’.

The council must check whether you fit these criteria before deciding what help it can give you. The council must make sure that housing advice is available and free.

For applications made before 29 November 2022, councils can also check whether you have a local connection to the area.

Are you eligible for assistance?

You will be treated as eligible for assistance unless you are ‘a person from abroad’. If you are from abroad, in order for the council to help you, you must have:

• refugee status;
• settled immigration status; or
• exceptional leave to enter and remain.

If you have accommodation, even if it is temporary, and you are a refugee or asylum seeker, you may not be eligible for assistance. If you are in this situation, contact Shelter Scotland or a local housing advice centre for advice. See Useful contacts at the end of this fact sheet.

Are you homeless?

If you are threatened with homelessness in the next two months the council should treat you as if you are homeless

You are homeless if you are without accommodation in the UK or elsewhere but you can be counted as homeless even if you are not literally without a roof over your head.

You can be considered homeless if:

• you are unable to remain in, or gain access to, the place where you are living;
• you live somewhere which is totally unsuitable;
• the accommodation is below a ‘tolerable standard’;
• your accommodation is unsuitable for health reasons;
• you live in a mobile home or boat and there is nowhere to put it;
• where you live is ‘statutorily overcrowded’ and living there might pose a danger to you; or
• occupying your accommodation is likely to lead to violence or threats of violence carried out by a person who used to live with you (whether at that address or previously) or is still living at that address. This also applies to external violence (including racial or other violence).

Are you intentionally homeless?

The council will decide that you are ‘intentionally homeless’ if:

• you had somewhere where it was reasonable for you to continue to live, but you deliberately chose to leave or otherwise give up the property;
• you have left somewhere where you could have continued to live, solely in order to get some help from the council; or
• there is suitable accommodation available to you in your area but you have not taken it.

You should not be found ‘intentionally homeless’ if:

• you left home because you felt threatened with violence;
• your home was repossessed due to arrears which arose because you could not afford to pay your rent or mortgage. You need to show you were in real financial difficulties and that your income could not have covered your rent or mortgage payments and basic living expenses;
• you have failed to exercise your rights to your home under the matrimonial homes legislation;
• the conditions in your home were so bad that you could not remain and it would have been unreasonable to expect you to stay; or
• you lost your home through someone else’s actions which you did not know about or had no control over.

Do you have a local connection?

If you applied to the council for homeless assistance before 29 November 2022, the council can look at whether you have a local connection to its area. If you do not have a local connection with the authority where you applied for help, then you can be referred to an area in England, Scotland or Wales where you do have a local connection.

For applications made from 29 November 2022 onwards, councils can no longer use the fact that you don’t have a local connection to its area to refer you to another council in Scotland for homelessness assistance.

What help does the council have to give you?

If the council thinks that you may be homeless and eligible for assistance it must secure temporary accommodation for you while it decides, and if you ask for a review of a decision, until the outcome of that review.

If the council decides that you are homeless and eligible for assistance, but that you are intentionally homeless, it must provide you with temporary accommodation to give you a reasonable opportunity (at least 28 days) to secure alternative accommodation for yourself.

If the council decides that you are homeless, eligible for assistance and not intentionally homeless, it will usually need to make sure that you have accommodation.

The council no longer has to help you if:

• you refuse to take up an offer of accommodation (although if this offer is unsuitable, you can ask the council to look at the offer again). Explain why you think the accommodation is not suitable for you, e.g. it is too far from school or work or because of your health or any risk of violence; or
• you stop being ‘eligible for assistance’.

Making the application

Try to go to an advice agency before you make your application because it will be able to make sure you know what your rights are. Your application will be dealt with by the housing department in your local council. There are two routes to being housed by the council; one is by putting your name on the waiting list and the other is by applying as homeless.

If you want to apply as homeless, make this clear when you go to the housing department and ask to speak to the person who deals with homelessness. The department should try to make your initial assessment on the day you apply or on the first working day after your visit, if you apply out of office hours. Enquiries should be completed within 28 days.

The council should have an emergency telephone number which you can call if it is out of office hours. This number might be on its answerphone.  The Shelter Scotland website also has a list of contact numbers for local councils. Alternatively you could ask at a police station.

When you go to the council you will be asked for information about your circumstances. Take any important papers with you, such as any court order you have been served. The council will want to ask questions about how soon you are likely to become homeless.

What if I am told I can't apply?

If the council tells you that you can’t make an application for re-housing as homeless, contact a local advice agency, call Shelter Scotland or contact us for advice.

Getting re-housed

Many councils will only make one offer of accommodation. The accommodation you are offered does not have to be council owned. It is very likely to be provided by a housing association. Do not refuse an offer without getting advice first.

What happens to your belongings?

If you are homeless, the council must help you look after your property if it might get damaged or lost. The council usually charges you for storage of your furniture and possessions.

What if you are refused help?

If you are not happy with the way that the council deals with your enquiry, then seek help from a local advice agency. It will be able to check whether you have been given the correct information. If you make an application but the council says it is not going to help you it should give you a decision, in writing, telling you the reason (a notification letter).

The council can be challenged if it looks as if it made a wrong decision. You have the right to request a review, you normally have 21 days from the date of the decision to ask for a review. If you ask for a review the decision must be looked at by a senior officer who was not previously involved in your case. You must be told the outcome in writing.

If you have told the council that you are homeless and it has made an error in law, you can apply for a judicial review at the court of session. Before doing this you must get advice from a legal aid solicitor or law centre.

Other housing options

The council waiting list

You can go on the waiting list at the same time as applying for re-housing as a homeless person. The council has to have a scheme for deciding who should be given priority in allocating council housing, and the procedure for how this is done.

Councils have to give ‘reasonable preference’ to certain groups such as:

• people in overcrowded, or unsanitary accommodation;
• people in temporary, or insecure accommodation;
• people with dependent children, or a pregnant woman;
• households with someone who needs settled accommodation because they are ill or disabled; and
• people who find it difficult to get settled, secure accommodation.

Someone who is single and already has somewhere to live may wait a long time to be offered accommodation.

Housing associations

Housing associations may be able to offer good accommodation at an affordable price. Some will only let you apply if you already have your name on the council’s waiting list. They may have their own criteria for people whom they will house first.

Some associations are set up to help certain groups of people, such as the elderly or low income families. The council should be able to give you a list of housing associations in your area.

Private landlords

Private landlords often advertise in the newspapers or in a shop window. Some choose to let the property via an estate agent or property agent.

There are different types of private tenancy agreements. Your rights are affected by the type of tenancy you take and what sort of accommodation you have. Before signing an agreement with a landlord get advice from a local advice agency or Shelter Scotland.

If you decide to rent privately, look around first to find out what is on offer in your area and get an idea of what sort of rents are being charged.

You may need to find out from a local advice agency what maximum rent will be covered by housing benefit in your area. The agency may also keep lists of local landlords. Have a look at the house before you agree to move in or hand over any money. Ask for a receipt for any money you pay as rent or as a deposit.

Help with deposits

In some areas, rental deposit, or ‘bond’ schemes have been set up to help people on low incomes or benefits to find private rented accommodation. Under the scheme you do not have to pay a deposit up front and the tenancy agreement is with a landlord from an approved list. Schemes vary so contact a local advice agency or Shelter Scotland for more information.

Help with rent

You should ask the council for a ’pre-tenancy determination’ before you move in. This should tell you how much of your rent will be covered by Housing Benefit if you are on a low income.

You can apply to the council for Housing Benefit to pay the rent. You can apply to your council to pay any shortfall on your rent out of a limited fund called a ‘discretionary housing payment’. They will only help if you can show you will be in hardship due to exceptional circumstances. If the fund has no money left in it, they can refuse to pay. You can ask the council to review their decision. There is no right of appeal.

You can apply to the council for Council Tax Reduction to help with Council Tax once you have moved in.

Useful contacts

It is very important to get advice about your housing situation. Help may be available from the following agencies.

Citizens advice bureaux The address of your local citizens advice bureau should be in the telephone directory. You can also check the CAB website www.cas.org.

Law centres There may be a law centre locally which deals with housing issues. Look in your phone book or search for a law centre at Money Advice Scotland or The Law Society of Scotland.

Money Advice Scotland www.moneyadvicescotland.org.uk

Shelter Scotland For advice and to find your nearest housing advice centre. Phone: 0808 800 4444 scotland.shelter.org.uk

Solicitors Some solicitors give advice on housing issues. If you are on Working Tax Credit, Income Support, Jobseeker’s Allowance, Pension Credit, Universal Credit, or a very low income, you may be eligible for legal aid, otherwise you may have to pay to see a solicitor. For a local housing solicitor contact The Law Society of Scotland or check in your local library.

The Law Society of Scotland 26 Drumsheugh Gardens Edinburgh EH3 7YR Phone: 0131 226 7411 www.lawscot.org.uk