UKSC: Final word on the duty to provide temporary accommodation for homeless people

Harper Macleod LLP successfully represented Glasgow City Council (“GCC”) in the UK Supreme Court case Glasgow City Council v X, one of the most significant housing cases for the public sector in Scotland.

The case concerns the scope of the interim duty imposed upon local authorities in Scotland by section 29(1) of the Housing (Scotland) Act 1987 and article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014.  The central question is whether interim (temporary) accommodation provided by local authorities must meet all the needs of the applicant, including any specific (“special”) needs of a member of the applicant’s household, to be considered suitable under the 2014 Order.

Background

This case concerned a homeless family made up of a couple and their four children, one of whom has additional support needs.  GCC provided the family with a four-apartment property (one with three bedrooms and a living room) on an interim basis, but a subsequent housing needs assessment identified that a five-apartment property was required to accommodate their son’s additional support needs.  No five-apartment properties were immediately available so the family required to remain in their temporary accommodation until GCC could offer them a larger property.

The family challenged the suitability of their temporary accommodation and succeeded in a judicial review in the Outer House of the Court of Session, where the Lord Ordinary held that GCC had an absolute duty to provide temporary accommodation suitable for the family’s household, taking account of the additional support needs of their son.  This meant providing a five-apartment property immediately.

That decision was overturned by the Inner House of the Court of Session.  The Inner House held that the test of suitability for temporary accommodation could be met even if the interim accommodation did not meet all the specific needs of individual household members, as long as the general needs of the household were considered and the local authority’s decision was reasonable.  This meant that accommodating the family in a four-apartment property on a temporary basis was lawful.

UK Supreme Court decision

The family appealed to the UK Supreme Court.  The UKSC concluded that the Inner House was correct to focus on the statutory provisions identifying the extent of the local authority’s accommodation duty at different stages.

The Housing (Scotland) Act 1987 distinguishes between the interim and permanent duties imposed on local authorities and what is suitable for interim accommodation may differ from what is suitable for permanent accommodation.

The court found that the concept of “needs” plays different roles in determining suitability for interim and permanent accommodation. The “fundamental” distinction between “meeting” and “taking into account” needs is crucial.  For interim accommodation, the local authority must take into account the needs of the household but does not have to meet all these needs.  For permanent accommodation, the local authority must meet all needs, including any special needs of the applicant and the household.

The duty to meet needs for permanent accommodation is outcome-driven, while the duty to take into account needs for interim accommodation is process-driven.  The court noted that this distinction is well-recognised in other legislative schemes (for example, the duty to have “due regard” in section 149 of the Equality Act 2010 does not dictate a particular outcome but requires public bodies to consider certain equality considerations) and reflects the practical realities of securing temporary accommodation before a full needs assessment can be conducted.

The family’s submission that temporary accommodation provision should be aligned with permanent accommodation requirements once a full housing assessment has been carried out was rejected by the UKSC. Any housing needs assessment will inform the duties of the local authority in terms of suitable permanent housing, but the scope of the duty to provide temporary accommodation under section 29 does not change once the local authority has assessed permanent accommodation needs.  The court noted that “It is for the local authority, with its in-house expertise and experience, to assess the needs of the household in each case, whatever they might be.”

Conclusions

The court took the view that “the language of the statutory scheme is clear and unambiguous”.  Local authorities must take account of the needs of a household but is under no duty to provide temporary accommodation that meets the specific needs of individual members of the household.  The assessment of suitability of temporary accommodation is for the local authority to undertake.  Such decisions are subject to the supervisory jurisdiction of the court, with rationality as the control. The local authority’s decision must, therefore, be within the range of reasonable decisions available.  It would, for example, be irrational to accommodate a family of six in a small one-apartment property.

In the context of the present case, the need for a five-apartment property required to be considered but did not have to be met at the interim stage.  GCC took into account the needs of the household in offering a four-apartment property, which was the next best available option in the absence of a five-apartment property.  The decision was lawful and within the range of reasonable decisions, so GCC fulfilled its duty under section 29 of the 1987 Act in these circumstances.  The appeal was therefore dismissed.

This decision will provide welcome confirmation for local authorities of their duties, set against a backdrop of record numbers of homelessness applications, challenging financial conditions and a chronic shortage of social housing.

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