Augustin-Roger Mokombo-Eboma claimed that, as an EU citizen, he was entitled to homelessness assistance in Scotland and that Glasgow City Council had acted “ultra vires” in failing to provide him with interim accommodation, but a judge in the Court of Session dismissed the case as “incompetent”.

‘Homelessness assistance’

Lord Bannatyne heard that the petitioner applied for homelessness assistance in accordance with the Housing (Scotland) Act 1987, but in a decision letter dated 11 October 2018 the respondent refused his application, stating that “you are not now exercising a treaty right entitling you to homelessness assistance”.

The petitioner sought to exercise his right of review of the decision in terms of section 35A of the 1987 Act, but before that review concluded he raised judicial review proceedings seeking declarator that the respondent has acted ultra vires of section 29(1)(a) of the Housing (Scotland) Act 1987 by failing to provide him with interim accommodation and refusing to undertake a homelessness assessment in accordance with section 28 of the 1987 Act.

He also sought declarator that the respondent had “erred in law” in finding the petitioner was not exercising a European Union Treaty right which entitled him to homelessness assistance in Scotland.

However, the respondent’s position was that there was “no need” for the present judicial review proceedings as the petitioner had a statutory form of review open to him in terms of section 35A, which provides that where an applicant requests a review of any decision as to what duty (if any) is owed to the applicant under section 31 or 32, the local authority concerned shall review the decision.

It was argued that the petitioner had failed to exhaust his alternative remedies and therefore the petition should be refused on the basis that it was “incompetent” to proceed by way of judicial review, the remedies provided by which arose from the supervisory jurisdiction of the court where there was no other remedy available.

‘Judicial review’

The petitioner’s position was that a statutory review of the respondent’s decision under section 35A of the 1987 Act was not competent, as the decision was not made under the legislation; rather, it was a determination of the petitioner’s immigration status under EU treaty rights.

It was submitted that the respondent’s decision made no finding or decision with respect to any of the duties or statutory tests set out in section 31 of the 1987 Act, thus no statutory review was available.

The decision letter made no decision as to whether the petitioner was homeless, in terms of section 24 of the 1987 Act, and whether he became homeless intentionally, in terms of section 26 of the 1987 Act.

Instead, it was argued that the letter made a decision based on the petitioner’s immigration law status in terms of the Immigration (European Economic Area) Regulations 2016, under which EU nationals may accrue rights within the UK.

It followed that a review in terms of section 35A was not open to the petitioner and that, accordingly, he required to seek a judicial review.

The petitioner sought reduction of the decision and an order for specific performance of the respondent’s duty to undertake a homelessness assessment in accordance with section 28 of the 1987 Act and accommodate him.

‘Incompetent and premature’

The judge held that the petition was “incompetent and premature”.

In a written opinion, Lord Bannatyne said: “Looking to the plain and ordinary meaning of the language in the above provision I am satisfied that the scope of the review provided for therein is sufficiently wide to encompass the challenged decision.

“On a fair reading of the decision letter what is decided by the respondent is that no duty was owed to the petitioner in terms of section 31 as he had not established that he was a ‘qualified person’ in terms of Regulation 6 of the 2016 Regulations.

“The argument advanced by the petitioner that there has been no decision in terms of section 31 of the 1987 Act but rather a decision in terms of the 2016 Regulations for these reasons appears to me to be misconceived.

“The decision was not to hold him entitled to accommodation in terms of section 31 because he was not eligible for such. That is a decision in terms of section 31.

“Accordingly, having held that the above was the effect of the decision it appears to me that decision of the respondent falls four square within the scope of section 35A(2)(a). Thus I am persuaded that the petitioner has a right to a statutory review in terms of the said provision.

“Thus the petitioner has not exhausted all of his statutory remedies. The review procedure in terms of section 35A remains open to him. That review procedure is capable of curing the alleged injustice of which he complains.”

The judge added that judicial review was a remedy of “last resort”.

“Judicial review is an equitable remedy to prevent injustice,” he said.

“Given there is a statutory review procedure open to the petitioner he does not require to resort to judicial review. For the foregoing reasons I hold that the petition is incompetent and premature.”