Homelessness decision has significant implications for local authorities

In a decision of the Court of Session issued today, a judge has found that local authorities are under an absolute obligation to provide homeless families with accommodation that meets all of their needs in terms of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014.

Whilst councils already strive to find suitable accommodation for the thousands of individuals and households presenting to them as homeless, they have finite resources available to them, both in terms of available housing stock and finances. Facing such practical constraints, it is not always possible for councils to accommodate large families (in this case a family of 6) in suitably sized properties in the area of their choice promptly.

This judgment means that housing authorities will be in breach of their statutory duty to provide suitable accommodation unless they can accommodate every homeless family in a property which meets all of their needs right away.

X v Glasgow City Council

The decision comes in a case against Glasgow City Council (GCC) who placed a couple with four children in temporary accommodation in a four apartment property (one with three bedrooms and a living room) rather than a five apartment property, in circumstances where a housing assessment had identified a need for a five apartment due to their son’s additional support needs.

GCC explained that there was a lack of available accommodation of the size required by the family in the area of their choice. Five apartment accommodation is not widely available in the area of Glasgow within which the family wished to be accommodated and, in any event, is generally occupied by permanent tenants, so only becomes available when someone passes away or moves. This can mean a longer wait for larger families to move into permanent suitable accommodation.

Statutory duty

The statutory duty in question is Article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 which creates a duty to provide accommodation which is “suitable for occupation by a homeless household, taking into account the needs of the household”.

GCC submitted that this duty requires the council to take account of the household’s needs in allocating housing but provides some discretion to balance those needs against other demands on the council’s limited resources, including from other (sometimes larger) homeless households who may have been waiting longer for permanent accommodation. In this case, it submitted that the Council had taken account of the family’s needs and that the four apartment property allowed the son to have his own bedroom if two of his sisters shared a room on a temporary basis. In the meantime, GCC continued to seek a larger property for the family to move to.

The solicitor advocate for the family submitted that the temporary four apartment accommodation did not meet the son’s needs as a disabled person. GCC’s explanation for the failure to provide suitable accommodation (that none was available) was irrational and unreasonable as GCC could source temporary homeless accommodation privately or commercially to fill the gap in availability of property from registered social landlords.

Court decision

The judge held that the statutory wording does create an absolute obligation to provide accommodation that is suitable for the needs of the homeless family. There is no discretion available to the Council. Whilst it was noted that in some circumstances a statutory provision referring to “needs” may be too open-ended to found an absolute duty, housing needs are not, in the judge’s view, open-ended. If the household has a need for a five bedroom apartment, then that is the accommodation which the authority is obliged to provide.

The judge did not accept that there is any distinction between temporary and permanent accommodation therefore the same standard applies.

Implications of the decision

This decision has significant implications for all housing authorities who are faced daily with trying to juggle the allocation of available housing to those in need. The finding that this is an absolute duty with which the local authority is obliged to comply, both for temporary and permanent accommodation, has substantial practical and financial implications for local authorities, particularly those where there are high numbers of families with refugee status or otherwise facing homelessness.

Scotland’s city local authorities are at the sharp-end of a housing crisis and this judgment will do nothing to ease the problems they face on a daily basis in trying to find suitable accommodation for the individuals and families in crisis who they support on a daily basis.  It is accepted across all political parties in Scotland that there is a housing shortage, particularly of affordable homes and social housing.  Houses/flats cannot be built overnight yet the court has ruled that the needs of each individual and household presenting as homeless require to be met almost immediately by Councils, so this case brings into sharp focus the conflict between what the court has found the law to require and what in practical terms is available to be provided.