A local authority has been found to have breached its duties to provide suitable temporary and permanent accommodation to a homeless person in a judicial review. This judgment serves as a useful reminder to local authorities and other decision makers that the Court can and will grant mandatory orders against public authorities despite budgetary pressures.

Facts

This is the latest in a series of recent posts (see here, here and here) on judicial review for public authorities and is a lengthier entry in the series.

Y brought the judicial review against Glasgow City Council ("the Council") for failures to secure suitable temporary and permanent accommodation for Y in accordance with the Council's duties under sections 29(1)(c) and 31(2) of the Housing (Scotland) Act 1987 ("the Act").

Y had been homeless since 9 September 2019. The Council provided Y with interim accommodation and subsequently moved Y to different interim accommodation upon the arrival of Y's family in the UK on 23 September 2020. Since 23 September 2020, Y lived in a three-bedroom first floor flat with 7 others and suffered from mobility problems.

Y sought a declarator that the Council had failed to comply with its statutory duties to provide suitable temporary and permanent accommodation. The Council disputed this. Somewhat unusually, Y also sought an order for specific implement (similar to a mandatory order in England and Wales) requiring the Council to secure permanent accommodation for Y.

The Court had to determine three issues:

  1. Did the Council fail to meet its duty to secure suitable temporary accommodation?
  2. Did the Council fail to meet is duty to secure suitable permanent accommodation?
  3. If the Council was in breach of either duty, should the Court issue a declarator or an order for specific implement requiring the Council to take positive action?

Judgment

On the temporary accommodation issue, the Court noted that the Council did not require to meet Y's needs but had to take them into account when providing temporary accommodation. The Court held that the Council had not breached its duties when first housing Y in September 2020 as Y's needs had been taken into account and the temporary accommodation was reasonable on an interim basis at that time.

However, by 3 March 2023 Y's mobility had deteriorated, the Council was aware of this and it ought to have known since that date that the accommodation was no longer suitable taking into account Y's mobility issues and the size of the household. In absence of reasonable offers of alternative temporary accommodation, the Court issued a declarator that the Council had breached its duties regarding temporary accommodation since 3 March 2023.

On the permanent accommodation issue, the Court held that the Council had a reasonable period of time to provide suitable permanent accommodation to Y. The Court held that where there was a pressing need to provide permanent accommodation due to temporary accommodation being unsuitable, that would shorten what would be considered a reasonable time for Y to wait. The Court recognised the need to balance budgetary pressures and housing supply issues with the existence of a statutory duty to secure permanent accommodation for Y. The Court found that the wait for Y in this case, approaching 5 years, was not reasonable and that the Council had breached its duties regarding permanent accommodation.

On the declarator versus mandatory order point, the Court decided to make an order for specific implement. The Court considered the following factors pointing against granting a mandatory order:

  • A mandatory order makes the Court the primary decision maker and this would take the matter out of the hands of the Council.
  • Mandatory orders are normally considered unnecessary because the Council would be expected to comply with a declarator order only.
  • The Council faced very significant pressures and difficulties in providing accommodation to homeless persons, particularly to larger families within a housing crisis.
  • The Council explained the reduced resources, the increased demand for housing, the reduced supply, and the schemes it had adopted to address these matters and simply did not have a large enough property available to meet Y's needs.

The Court considered the following factors in favour of a mandatory order:

  • The statutory duty existed, was breached and was likely to continue to be breached. The Council had not explained why other budgets could not be drawn upon to source accommodation.
  • The Council could not demonstrate why it could not exercise its discretion to prioritise Y's case over those higher up on the Council's waiting list and it had not conducted an assessment of competing need between Y and those higher on the waiting list. The onus was on the Council to demonstrate why a mandatory order should not be made and resource issues alone would not be sufficient.
  • Y's personal situation was pressing and there was no indication that the Council would provide suitable accommodation at any point soon without a mandatory order.

The Court concluded that it would make the mandatory order as the Council had failed to demonstrate why it could not draw on other resources to meet Y's needs or why it could not exercise its discretion to provide Y with accommodation notwithstanding that others were ahead of her on the waiting list.

Comment

The judgment serves as a useful reminder of the difference between councils' duties to provide temporary accommodation and permanent accommodation under the Act. In the case of temporary accommodation, authorities must only take into account an individual's needs and reach a reasonable decision. In the case of permanent accommodation, the individual's needs must be met but there will be a reasonable time to provide such accommodation. However, when considering whether it is reasonable to continue to provide temporary accommodation, the Court will assess whether an individual's needs are being met by the temporary accommodation. The judgment serves as a caution to councils that prolonged stays in unsuitable temporary accommodation without adequate permanent accommodation being provided may breach the relevant statutory duties. It will not necessarily be a defence for councils to point to the housing emergency or severe budgetary constraints.

The judgment also reminds councils and other public authorities that the Court can and will make mandatory orders requiring positive steps to be taken and for the reallocation of resources in certain judicial review cases. This case demonstrates that a Court may make a mandatory order even where a public authority raises very real budgetary and housing supply concerns or concerns regarding fairness to others on waiting lists. To ensure that such arguments are put at their highest, public authorities should be prepared to explain factually why it would be unfair to put an individual to the front of waiting list queues based upon detailed assessments of competing priority but also why other budgets have not or could not be used to source more suitable accommodation. It will not necessarily be sufficient to make arguments about resourcing need and fairness to others on waiting lists.

The judgment deals with the mandatory order known as specific implement but does not expressly deal with the similar remedy of specific performance under section 45(b) of the Court of Session Act 1988 and public authorities should be mindful that both specific implement and specific performance can be sought in judicial review. To avoid such mandatory orders being granted, public authorities should be prepared to spell out precisely and in-depth why certain action has not been taken and why it is not feasible on an individual and comparative basis to take such action. Budget constraints and waiting lists alone are not enough.

Contributors

Niall McLean

Partner & Solicitor Advocate

Fiona McLeod

Legal Director

Lewis Newlands

Senior Associate