Lord Tyre’s decision in the Inner House of the Court of Session overturned a previous decision that judged councils had an absolute duty to provide appropriate housing, even if only temporarily.

It was argued by Glasgow City Council that the Lord Ordinary had erred in his interpretation of the scope of the duty it owed to petitioner X and the other members of her household, who were granted temporary accommodation in the city. An intervention in the appeal was made by Shelter Scotland in support of the petitioner.

The case involves the petitioner, her husband, and her four children aged 11 to 15 who became homeless persons on 4 February 2020 by virtue of having been granted asylum in the UK and losing their entitlement to accommodation provided by the Home Office. They were granted a three-bedroom flat as temporary accommodation by the council while an investigation was conducted into their accommodation needs.

The petitioner’s 13-year-old son had previously been diagnosed as autistic. A report from July 2021 by the council’s occupational therapist concluded that he required his own bedroom, and therefore the family needed a 5-apartment property in order to accommodate his additional support needs. No such property had ever become available to offer to the petitioner and therefore the council took the decision to continue to house the family in a four-apartment property.

It was concluded by the Lord Ordinary that the council had an absolute duty to provide accommodation that was suitable for the needs of the petitioner’s autistic child and thus to provide a five-apartment property as recommended by the report. In the event that such a property was not available from a registered social landlord, obtaining it from another source would be a reasonable adjustment the council were expected to make.

On behalf of the council, it was argued that the Lord Ordinary had misconstrued the scope of its duty under section 29 of the Housing (Scotland) Act 1987. Although there was a mandatory duty to take into account the needs of a homeless household, there was no absolute duty to meet those needs. While the solution it had provided was not ideal, it was within the range of reasonable decisions open to it.

Striking differences

Lord Tyre, delivering the opinion of the court, began by observing: “The key issue is whether the duties imposed on a local authority in relation to the provision of interim accommodation are the same as those imposed in relation to the provision of permanent accommodation. In our opinion, they are not. There are striking differences in the wording of the respective statutory provisions which cannot be disregarded.”

He continued: “The content of the section 29 duty to provide temporary accommodation is not the same as that of the section 31 duty to provide permanent accommodation. It follows that an assessment of a homeless household’s needs in respect of permanent accommodation, including any special needs of a member of the household, is not determinative of whether a property is suitable for the household’s temporary occupation until accommodation meeting the assessed needs becomes available.”

Noting that there was an “underlying practical problem” in that larger homeless families often spent a considerable period of time in temporary accommodation, Lord Tyre added: “The statistics provided to us by the intervener illustrate the extent of this problem, but it does not determine the proper interpretation of the statutory provisions. What is suitable for occupation in the short or medium term may not be suitable for occupation in the long term. If the time that is allowed to elapse becomes intolerable, the court may feel that it is proper for it to step in. These observations confirm that a homeless person who is housed for an unreasonable period of time in accommodation which does not meet his needs is not without a remedy.”

Addressing whether the council was in breach of the public sector equality duty, Lord Tyre said: “Secondly, we are not persuaded that the council’s practice for sourcing homeless accommodation puts disabled persons such as the petitioner’s son at a disadvantage in comparison with persons who are not disabled. There is clearly no intrinsic reason why accommodation obtained from a registered social landlord as opposed to some other source is less suitable for disabled persons than for persons who are not disabled.”

He concluded: “The issue, in this case, is not whether property sourced from a registered social landlord puts a disabled person at a substantial disadvantage but rather whether the temporary accommodation provided to the petitioner is unsuitable because it puts her disabled son at a substantial disadvantage. That is a matter which falls to be addressed by application of the housing and homelessness legislation and not by equality legislation. We therefore also reject the petitioner’s alternative case.”

The reclaiming motion was therefore allowed and the petition refused.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Malcolm and Lord Tyre. Johnstone KC and Middleton, advocate, appeared for the reclaimer and Dean of Faculty, Roddy Dunlop KC, and Mike Dailly, solicitor advocate, for the original petitioner and respondent. Written submissions were made for the intervener by Ross KC.