Campaigners have criticised its failure to take any firmer moves that it can take under Scottish law like legal enforcement action and removal of officers to ensure human rights are protected.
The Scottish Government-funded body which is directly accountable to the Scottish Parliament has already set engagement plans for two of Scotland’s biggest councils, Glasgow City Council and the City of Edinburgh Council which have both registered housing emergencies.
The revelation has come as housing campaigners have been demanding action from the regulator, which received £5m in 2023/24 from the taxpayer, to deal with the housing and homelessness crisis.
And there is a growing swell of opinion being forwarded to ministers that the regulator should be doing more to solve the crisis.
Councils have broken the law that ensures the homeless including children and pregnant mothers are given some kind of roof over their heads nearly 19,000 times over six years.
There was a record 7915 breaches in 2023/24 – nearly 18 times more than the previous year – and that came despite continuing efforts being made to ensure the homeless have a roof over their heads in the wake of the Covid pandemic.
And three in four of the breaches in 2023/24 were in Glasgow – over three years after the regulator found in an that it had failed in its legal duties to homeless people by not ensuring there was enough suitable temporary accommodation for them before the coronavirus pandemic.
Campaigners had been calling for financial penalties to be imposed on councils that break the law, to ensure that the homeless are given at least temporary accommodation.
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The regulator has raised its concern over the state of play in Scotland’s housing emergency in its 2023/24 analysis on how landlord and local authorities are meeting the 12-year-old Scottish Social Housing Charter which sets the standards all they should aim to achieve when performing their housing activities.
The regulator, whose statutory objective is to safeguard and promote the interests of 600,000 tenants who live in homes provided by social landlords, 120,000 property owners and the tens of thousands who experience homelessness, says it has concluded that the demands on some local authorities around homelessness “now exceed their capacity to respond”.
Some 11 out of Scotland’s 32 local authorities have admitted breaching the law that ensures that the homeless are offered at least temporary accommodation at least once. There were just six in 2022/23.
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Scotland’s biggest city, Glasgow, which declared a housing emergency in November, 2023, registered the highest number of breaches at 6,260 in 2023/24 – which makes just over three out of four of the Scottish cases. It registered fewer than four the year before.
The Glasgow breaches come despite the regulator finding in November, 2020 that the council failed in its legal duties to house homeless people by failing to ensure there was enough suitable temporary accommodation for them before the coronavirus pandemic.
The inquiry came after Shelter Scotland launched legal action against Glasgow City Council over its practice of “gatekeeping” – where people who present as homeless are refused their legal rights.
The inquiry into the council’s services for people concluded that the council did not provide temporary accommodation to significant numbers of people when they needed it.
During 2019/20, the council told the regulator that it failed to offer temporary accommodation on 3,786 instances when households required it – an increase of 445 on the previous year.
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The regulator said this meant the council “failed” to comply with its “statutory duty” to offer temporary accommodation in nearly 1 in 3 occasions when people required it.
The regulator said single people were “disproportionately affected” and accounted for 66% of homeless applications and for 83% of those not offered temporary accommodation.
The inquiry found that in some cases the people not accommodated were vulnerable and had approached the council for accommodation on multiple occasions.
The regulator said that in response to its findings and recommendations Glasgow City had developed, and was implementing, a new temporary accommodation strategy within its wider programme of work “to transform its services for people who are homeless”.
The Scottish Tenants Organisation has been pushing for action from the regulator in the wake of the housing emergency saying that the law breaches were “completely unacceptable” and that councils had to be legally punished through heavy fines being imposed and that Glasgow City Council “should be made an example of” because of its history.
It fears that the Scottish Housing Regulator was “toothless and weak in its performance” and had “no recourse to punishing councils”.
In a response to STO concerns, the regulator head Michael Cameron has admitted that it was extremely limited over what it can do.
He told the STO in a letter seen by The Herald: “We set out in our published engagement plan the extremely challenging issues in Glasgow and that the council’s services to homeless people are impacted by systemic failure and that it is breaching statutory duties.
“By systemic failure we mean that the number of people who are homeless, and the level of need they have, now exceed the council’s capacity to respond and that the increase in capacity that is needed to address the systemic failure goes beyond that which the council can deliver alone.”
He added: “Systemic failure requires a systemic intervention to achieve change. By definition, such an intervention is beyond the scope of what our regulation can deliver, but we stand ready to work with the Scottish Government and other stakeholders to identify and implement actions that will address the acute issues in homelessness.
“Over the longer term this is about reducing the demands on the system by preventing homelessness – the Housing Bill currently before the Scottish Parliament includes provisions that look to improve prevention of homelessness.
“We have stated that the immediate focus must on increasing the capacity in the system to meet the current level of demand and need, particularly providing more better quality temporary accommodation….
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“We are currently engaging with every local authority to gather further information and assurance about their homelessness services, and we will use this engagement to update our view of which councils are impacted by systemic failure. We also continue to work with Scottish Government, landlords and other stakeholders to address these acute issues in homelessness.”
Established on April 1, 2011, under the Housing (Scotland) Act 2010, the regulator’s statutory objective was to safeguard and promote the interests of around 600,000 tenants who live in homes provided by social landlords and the tens of thousands of people and their families who experience homelessness and seek help from local authorities.
It regulates 158 registered social landlords and the housing activities of Scotland’s 32 local authority.
Despite being funded by the Scottish Government, it insists it is independent of ministers.
Campaigners are concerned that the regulator is not using its powers to issue an enforcement notice relating to the provision of temporary and permanent housing for the homeless where it can appoint new management and can suspend or remove officers.
Part 5, section 56 of the Housing (Scotland) Act 2010 gives the Scottish Housing Regulator the power to issue such notices where it considers that a social landlord’s tenants’ interests need to be protected.
The Scottish Tenants Organisation said the regulator has shown it is “not fit for purpose” and that it “must be replaced” by a body “with teeth that can intervene to protect the interests of tenants and homeless people to properly solve this escalating crisis”.
They said: “The light touch regulation of recent years of the Scottish Housing Regulator cannot be allowed to continue as it has failed miserably to deal with the housing and homeless emergency. We need action now.”
The Edinburgh Tenants Federation registered its concerns as MSPs have been carrying out a scrutiny of the regulator’s operations.
It said that the regulator was not using their powers to “their full capacity” and that “earlier intervention should be happening when a social landlord performance is poor”.
Shelter Scotland has said it has “lost confidence” that the City of Edinburgh Council will uphold the rule of law and called on the Scottish Housing Regulator to intervene immediately. It came after a meeting the city’s Housing, Homelessness and Fair Work Committee, voted in favour of proposals to strip people experiencing homelessness of their right to adequate housing through the provision of suitable temporary and permanent housing.
The Herald has previously revealed how 50 Scots children are being hit by homelessness every day while the numbers languishing in halfway house temporary accommodation, because they cannot be found settled homes, has more than trebled in 20 years.
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Some 18,400 children are included among the 64,000 Scots within families who sought homelessness support from councils last year, despite widespread attempts to curb homelessness.
The estimates based on requested council and government evidence shows nearly 1400 more children in families were seeking homelessness help from councils than there were in the pre-pandemic year of 2019.
Councils have seen a near 4800 rise in the number of Scots who were declaring they did not have a home to go to in just four years despite widespread attempts to curb homelessness.
Scotland’s councils have spent £720m of public money on placing the homeless in temporary accommodation such as bed and breakfasts and hotels over the last five years because of a housing shortage.
The Scottish Government has since fallen way behind in a key target in its 2021 Programme for Government to deliver 110,000 social and affordable homes by 2032 with 70% for social rent.
Sean Clerkin, campaign co-ordinator of the STO added: “It is clear that the Scottish Housing Regulator is not properly regulating local authorities in relation to their responsibilities towards homeless people in that in Glasgow the SHR is allowing the city council to break the law every day through it failing to offer suitable temporary accommodation to homeless people and failing to enforce that the council actually offer temporary accommodation to homeless people who present themselves as homeless and therefore more people sleep rough on our streets.”
“It is the perception of many interested parties that for many years the regulator has sided with the interests of social landlords to the detriment of tenants. The Scottish Housing Regulator also encourages housing associations to largely self assess themselves.
“It is our belief that they have been subject to corporate capture by the very entities that they are supposed to supervise. This has to change.”
Some 13 of Scotland’s 32 councils have declared housing emergencies since Argyll and Bute Council became the first in June, 2023. The latest to make the pronouncement was East Lothian Council, a month ago, saying its allocation for preparing its Strategic Housing Investment Plan (SHIP) for 2025-2030 as £37m, averaging just over £7m per year – in comparison to an average of £12m per year in the previous five years.
And the Convention of Scottish Local Authorities (COSLA) said it was likely that more will follow as demand continues to surge.
Housing minister Paul McLennan said: “Homeless households in Scotland have a right to temporary accommodation and increasing housing supply is key to reducing the number of households in temporary accommodation. In 2024-25, we have targeted funding of £40 million to the local authorities with sustained temporary accommodation pressures. This takes investment in affordable housing to almost £600 million.
“The Scottish Housing Regulator continues to work with the Scottish Government and others to identify and implement actions that will address the acute issues in temporary and permanent accommodation for people who are homeless.”
A Housing Regulator spokesman said: “Put simply, for some councils the demands in the homelessness system – the number of people who are homeless, and the level of need they have – exceed the capacity in the system to respond. For some councils, the increase in capacity that is needed goes beyond that which they can deliver alone. That is what we mean by systemic failure.”