When homelessness and the law collide - what Supreme Court decision means for local authorities

The UK Supreme Court’s recent interpretation of homelessness legislation reflects the reality of an ongoing housing crisis and the challenges faced by Scottish councils.

The Outer House judgment in X v Glasgow City Council created additional challenges for Scottish councils in 2022 when Lord Ericht, in effect, declared there was no distinction between temporary and permanent housing duties under the Housing (Scotland) Act 1987.

In Lord Ericht’s opinion, local authorities were under an immediate absolute obligation to provide homeless households with accommodation meeting all of their needs, including any special needs of individuals in the household. Where such accommodation was not available from the council’s housing supply, it was to be secured privately, regardless of the cost implications.

Both the Inner House and UK Supreme Court (UKSC) have since confirmed that the statutory schemes for interim and permanent housing duties differ. The extent to which a household’s special needs require to be met depends on whether the accommodation is temporary or permanent.

The UKSC’s interpretation reflects the reality that temporary housing requires to be made available quickly, often before a full needs assessment can be conducted. It also acknowledges that these duties arise in the context of record numbers of homelessness applications, challenging financial conditions and a chronic shortage of social housing.

Background

The case concerned Glasgow City Council’s (GCC) temporary placement of a couple with four children in a four-apartment property (one with three bedrooms and a living room). A subsequent housing assessment, carried out for the purpose of providing permanent accommodation, identified that the family required a five-apartment property to accommodate their son’s additional support needs. As no five-apartment properties were available, the family was to remain in their temporary accommodation until GCC could secure them a larger property in their preferred area.

The family challenged the suitability of their temporary accommodation, submitting that GCC had failed to comply with its duties under section 29(1) of the Housing (Scotland) Act 1987 and article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 to provide accommodation “suitable for occupation by a homeless household, taking into account the needs of the household”.

Parties’ submissions

The petitioner argued that GCC had a legal obligation to provide her family with a four-bedroom home as soon as the housing assessment identified that this size of property was required to meet all the needs of her household, regardless of actual availability.

Shelter Scotland, who intervened in the Inner House and UKSC, supported the appeal and submitted that GCC’s decision did not comply with its Public Sector Equality Duty.

In response, GCC submitted that there are differences between the interim duty to secure temporary accommodation under section 29 of the 1987 Act and the duty to secure permanent accommodation in terms of section 31 of the 1987 Act.

The suitability of temporary accommodation is determined by reference to article 4(b) of the 2014 Order, which requires the Council to take account of the household’s overall needs when allocating temporary housing. The statutory test for assessing the suitability of permanent accommodation is more demanding in that it must meet the needs of the applicant, including any special needs of any member of the applicant’s household, in terms of section 31(2) of the 1987 Act.

GCC submitted that the interim duty allows discretion to balance the needs of an applicant against other demands on the authority’s limited resources. The reality is that, while authorities will do their best to provide a property of sufficient size in the applicant’s preferred area, this type of housing is limited and cannot always be provided immediately.

Statutory interpretation

The starting point for the UKSC was the proper interpretation of the words “taking into account the needs of the household” in article 4(b) of the 2014 Order.

Considering the wider statutory context of this provision, the UKSC agreed that there is a fundamental distinction between “meeting” and “taking into account” the needs of an applicant household. For interim accommodation, the local authority must take the needs of the household into account but does not have to meet all these needs. This is a process-driven duty. For permanent accommodation, the local authority must meet all needs, including any special needs of the applicant and the household. This is an outcome-driven duty.

The difference between outcome-driven and process-driven standards is recognised in other legislative schemes. For example, the Public Sector Equality Duty under section 149 of the Equality Act 2010 requires public bodies to have “due regard” to the equality considerations mentioned, but it does not dictate a particular outcome.

In the present case, GCC was obliged to take the needs of the applicant’s household into account when offering temporary accommodation. GCC was found to have done so. Provision of a four-apartment property, the next best available option in the absence of a five-apartment property, was within the range of reasonable decisions in the circumstances. The appeal was unanimously dismissed.

Impact of the decision

This decision reinstates local authorities’ previous understanding of the scope of the interim duty to provide temporary accommodation for homeless households in Scotland.

Lady Simler’s UKSC judgment sets the interim duty within the broader legislative framework and also in the context of the provision of temporary housing at a time of unprecedented demand for homelessness services.

Local authorities are responsible for making decisions on the suitability of accommodation, applying their expertise and experience. These decisions must fall within the range of reasonable decisions and, as such, remain subject to the supervisory jurisdiction of the court on traditional public law grounds. This judgment means that, as long as temporary accommodation is generally suitable, it doesn’t, as a matter of law, require to be perfect.

Written by Calum Gee, Jennifer Jack and Clare McGeough from Harper Macleod’s specialist public law litigation team, which represented Glasgow City Council in this case