Council wins appeal on interim homelessness duties
A local authority's statutory obligation to provide temporary accommodation for a homeless household does not impose the same duty as that in relation to permanent accommodation, which requires accommodation that meets all of a household's needs including any special needs of a member of the household.
The ruling was given by the Inner House of the Court of Session, allowing an appeal by Glasgow City Council against the Lord Ordinary who found that the council had acted unlawfully by providing unsuitable temporary accommodation to X and her family, and ordered specific performance of the council's duty under s 29 of the Housing (Scotland) Act 1987.
X and her husband had three daughters and a son, aged between 11 and 15. The son was autistic, and disabled in terms of s 10 of the Equality Act 2010. On their being granted asylum by the Home Office in 2020 the council came under a duty to provide them with suitable accommodation as homeless persons. An assessment found they needed a five apartment property to meet the son's additional support needs, preferably with a garden. Such properties were in short supply in the council's stock and none had become available. The council provided a four apartment property in a different area from the children's schools. X considered it unsuitable.
The Lord Ordinary read the council's duties as set out in the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014, article 4, as amended, as absolute: accommodation was unsuitable if it was "not suitable for occupation by a homeless household, taking into account the needs of the household"; Scottish Government guidance issued under the Act specified that accommodation should “be accessible and able to meet the needs of any disabled person within the household”; and in his view if the household had a need for a five-apartment property, that was what the local authority was obliged to provide. It could not avoid compliance with its duty because it was reliant on third party providers or because there were significant pressures on resources. It was for the council to find a way to comply with its statutory duty.
Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Tyre allowed the council's appeal. Giving the opinion of the court, Lord Tyre said there were "striking differences" between the wording of the statutory provisions respectively covering provision of interim and permanent accommodation. While on providing permanent accommodation an authority had to meet the special needs of the applicant or any other member of the household, with interim accommodation the duty was to provide accommodation that was suitable, "taking into account" the needs of the household – which did not refer to any individual's special needs or require particular needs to be met.
"It follows that an assessment of a homeless household’s needs in respect of permanent accommodation, including any special needs of a member of the household, is not determinative of whether a property is suitable for the household’s temporary occupation until accommodation meeting the assessed needs becomes available", he said.
That analysis was supported by the context of the 2014 Order as a whole. Further, the petitioner’s interpretation "fails to have regard to the fact that the duty to provide interim accommodation will usually have to be performed before any assessment has been made of the permanent accommodation needs of the household and its individual members". In so far as the guidance suggested a more onerous duty, it was for the court and not the executive to determine the proper construction of legislation.
Lord Tyre added that if homeless persons found themselves in interim accommodation for a lengthy period before permanent accommodation meeting their needs became available, the court might step in and require an authority to offer alternative accommodation, or at least declare that they were in breach of their duty so long as they failed to do so.
An alternative case under s 20 of the Equality Act was also rejected, as no breach of that duty had been established and the true issue fell to be determined by application of the homelessness legislation rather than the equality legislation.