Spring SOLAR Conference 2024 – a summary

A Harper Macleod team recently attended the Spring SOLAR Conference 2024, which highlighted the complex and diverse legal environment in which local authorities across Scotland are required to operate.

The team provided delegates with insights into key issues including housing & homelessness, information law, and age assessments for unaccompanied asylum-seeking children.

Housing and homelessness

For local authorities, homelessness is becoming an ever more challenging issue to deal with against the backdrop of a housing and cost of living crisis. Argyll and Bute, Edinburgh, Glasgow and Fife Councils have all declared housing emergencies.

Calum Gee spoke about the duties placed upon local authorities under the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 (as amended). He gave a detailed account of the landmark decision issued by the Inner House of the Court of Session in the case of Glasgow City Council v X and Shelter, the National Campaign for Homeless People Limited (Interveners) [2023] CSIH 7. Commentary by Jennifer Jack and Calum Gee in respect of X v Glasgow City Council, as it has progressed through the Courts, can be found here and here.

This was an appeal in relation to local authority’s duties to provide temporary accommodation to homeless people. The decision of the Inner House provides welcome clarification of the scope of the duty under s.29(1) of the Housing (Scotland) Act 1987 and Article 4(b) of the 2014 Order.

The Inner House concluded that the statutory framework clearly intended to distinguish between the standards of accommodation required for temporary and permanent accommodation. Temporary accommodation, by its very nature, is intended for short to medium term use. It is provided quickly to address an urgent need, and therefore, in all of the circumstances, there needs to be a degree of flexibility afforded to the local authority in providing this.

In light of these pressing circumstances, temporary housing provided by local authorities will likely be deemed to be suitable if it generally meets the needs of the household. Given that local authorities will often provide temporary housing prior to any household needs assessment being carried out, this decision also clarifies that the duty to provide suitable temporary accommodation arises when the household first presents as homeless. Any housing needs assessment will inform the duties of the local authority in terms of suitable permanent housing, but will not, ordinarily, create new obligations in terms of the suitability of temporary accommodation.

The Inner House also clarified that the assessment of whether interim accommodation is suitable in terms of section 29(1) of the 1987 Act and Article 4(b) the 2014 Order, is primarily a matter for a local authority’s experienced officers with such assessments being subject to review on traditional public law grounds, such as unreasonableness.

The Supreme Court has recently granted leave to appeal the decision of the Inner House to the Supreme Court of the United Kingdom, with a possible hearing in the Autumn 2024.

Information law, FOI and data protection

Legal and commercially sensitive or confidential information continue to be two complex areas of law. The interaction between these areas of law and the application of FOI and data protection regimes requires careful consideration by local authorities on a case-by-case basis.

James McMorrow spoke about information law and provided a useful breakdown of the approach that requires to be taken when dealing with legally privileged information when applying exemptions under FOISA and the GDPR/Data Protection Act 2018.

When considering what legal advice privilege (“LPP”) may cover, a key issue is to determine the identity of the “client”. The Court of Appeal in the Three Rivers District Council and others v The Governor and Company of the Bank of England (Three Rivers No 5) [2003] EWCA Civ 474 case adopted a narrow definition of “client” as it applies to companies or entities. It determined that the “client” may be restricted to a limited group of individuals within the entity which was authorised to seek and receive advice on behalf of the client organisation. This has the effect that communications between other employees, outside of the relevant group, and the legal advisers for the purpose of information gathering, were not to be treated as communications between the legal advisers and “client” and did not attract the protection of LPP.

Whilst the decision is not binding in Scotland, the Three Rivers principle was recognised in the Scottish case of Whitehouse v Lord Advocate [2019] CSOG 38. It is accordingly prudent to have regard to the risk that, in the Scottish courts, only certain individuals within an organisation may fall to be treated as the “client”. The Three Rivers principle is particularly relevant to local authorities, which operate and may instruct legal advice via multiple internal departments/business units, sharing that advice amongst departments.

Following Three Rivers, internal sharing of legally privileged information by a “client” to other persons within an organisation who may not be a “client” risks the “client” impliedly waving or losing LPP on the basis that the information has ceased to be confidential.

From an information law standpoint, if information loses its LPP status, then it will not be exempt from the applicable statutory provisions regarding disclosure under FOISA or the GDPR/Data Protection Act 2018. It is accordingly important for local authorities to manage privileged information carefully to ensure exemptions continue to apply. Analysis of whether LPP has been waived for the purpose of applying exemptions under FOISA and GDPR/Data Protection Act 2018 will always be highly fact-specific and, in certain cases, require risk-based analysis, having regard to both information law compliance and wider considerations.

Age assessments for unaccompanied asylum-seeking children

Local authorities undertake age assessments of unaccompanied asylum-seeking children, for the purpose of determining if the child requires to be accommodated by them under section 25 of the Children (Scotland) Act 1995. It had been understood, since 2017, that challenges to such age assessments should be taken in the form of judicial review proceedings. That understanding has now been thrown into doubt as the Outer House of the Court of Session has dismissed judicial review proceedings in Abdullah v Aberdeenshire Council [2024] CSOG 8 as incompetent, finding that the petitioner should have brought an Ordinary action for declarator of age instead.

Ashley Fleming provided a detailed examination of this case, and what the decision will mean for local authorities going forward, taking into account the provisions of the Nationality and Borders Act 2022 (‘NBA’) and the Illegal Migration Act 2023 (‘IMA’).

When considering Mr Abdullah’s case, the Lord Ordinary first looked at who had the ultimate jurisdiction to determine the Petitioner’s age and found that the courts, not local authorities, have original jurisdiction in such cases. This is because, fundamentally, the central issue in age assessments is a factual one, subject to the original (ordinary) jurisdiction of the court rather than the supervisory jurisdiction.

The Lord Ordinary then considered how the court should exercise that original jurisdiction and found there was a strong argument that ordinary procedure was the better procedure to use for all age assessment challenges, as opposed to judicial review. This was because judicial review is concerned only with whether a decision has been lawfully made; it does not deal with whether the decision is factually correct. Judicial review is a remedy of last resort and action for declarator is always available as a remedy in the first instance.

The upshot of the Lord Ordinary’s decision is that there are now two conflicting judgments from the Outer House as to the correct route for future challenges. On the basis of U v Glasgow City Council [2017] CSOH 122, applications should be by way of judicial review. However, applying the Abdullah decision challenges should be by ordinary action.

A third category of procedure for challenges to age assessment decisions is envisaged for statutory age assessments conducted by local authorities, or the new National Age Assessment Board, under the NBA. The NBA provides for such assessments to have their own appeal route to the Immigration and Asylum Chamber of the First-tier Tribunal (‘FTT’). These provisions of the NBA are not yet in force and it seems doubtful that they will be implemented given developments in the IMA, with section 57 IMA (not yet in force) removing the newly created statutory right to appeal an age assessment decision to the FTT. Until there is authoritative guidance from the Inner House those seeking to raise/resist challenges to age assessments will face the prospect of treading an uncertain path. The most pressing issue now facing local authorities will be the Abdullah judgment and how it is ultimately dealt with by the Courts. Further commentary by Jennifer Jack and Calum Gee on the Adbullah decision can be found here.

Our specialist team has experience of supporting local authorities across a broad range of complex legal matters and would be happy to assist your organisation.