The appeal concerned a decision of the council in relation to the provision of temporary homeless accommodation under the Housing (Scotland) Act 1987.

The issue was whether temporary (interim) accommodation provided by local authorities pursuant to the duty at section 29 of the 1987 Act must meet the specific needs of individual members of the household in order to be suitable for the purposes of section 29(3) of the 1987 Act and article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014.

The appellant’s household consists of the appellant, her husband, three daughters and a son. The appellant’s son has been diagnosed as autistic and is disabled within the meaning of section 6 of the Equality Act 2010.

On 4 February 2020, the appellant and her husband were notified that they had been granted refugee status. This means that they, and their family, were no longer entitled to accommodation provided by the Home Office, they became homeless persons and the obligation to house them passed to the respondent. The respondent provided them with a four-apartment property as temporary accommodation.

The respondent investigated the appellant’s permanent accommodation needs. A report dated 21 July 2021 concluded that the family needed a “5-apartment property in order to accommodate their son’s additional support needs and a garden would also be beneficial with regard to this”.

The appellant, on 10 August 2021, requested that the respondent review the suitability of the property and move the family to alternative housing. A senior homelessness worker at the respondent stated that it had not been possible to provide “a further temporary furnished flat at this stage due to a lack of this type of accommodation becoming available”. A caseworker from the respondent local authority explained in an affidavit that the respondent depends on registered social landlords (housing associations) to source temporary accommodation. There are very few five-apartment properties and such properties rarely become available.

The appellant sought judicial review of the respondent’s failure to provide her and her family five-apartment accommodation. The Outer House of the Court of Session held that the respondent had acted unlawfully by providing the appellant with unsuitable temporary accommodation. This decision was overturned on appeal by the Inner Hose.

Lady Simler gave the only judgment, with which the other justices agreed.

Differing duties

The starting point is the words of article 4(b) read with section 29 of the 1987 Act in the wider legislative context. Part II of the 1987 Act deals with the imposition of duties on local housing authorities to people facing the immediate problem of homelessness. There are two separate duties: an interim duty to secure temporary accommodation imposed by section 29 and a duty to secure permanent accommodation imposed by section 31.

Article 4 of the 2014 Order applies “in all circumstances” where the interim duty applies. It describes accommodation that is, in all circumstances, unsuitable. Accommodation is unsuitable if the accommodation is “not suitable for occupation by a homeless household, taking into account the needs of the household” (article 4(b)). The concept of the “needs of the household” is also relevant at the section 31 (permanent accommodation duty) stage. At this stage accommodation must both meet any special needs of the homeless applicant or her household (section 32(5)(b)) and be “reasonable for the applicant to occupy” (section 32(5)(c)).

There is a fundamental distinction drawn by the legislation between the duty to meet needs imposed in relation to permanent accommodation and the duty to take account of needs imposed in relation to interim accommodation. The first is a results or outcome driven duty and the second is a process duty requiring needs to be considered but not requiring them to be met.

This distinction is unsurprising. The statutory scheme envisages that a local authority will come under a duty to secure temporary accommodation under section 29 before a full needs assessment can take place. It is therefore understandable that no obligation to achieve a particular outcome (by providing accommodation that meets needs) is imposed at the interim duty stage. On the other hand, the strikingly different language in sections 31 and 32(5) reflects the fact that the obligation to secure permanent accommodation is more demanding. That difference is important. Accommodation provided under section 29 is a staging post along the way to permanent accommodation under section 31. As a matter of practical reality, there are likely to be cases where what is suitable for a homeless person to occupy on an interim basis while the authority completes its inquiries or looks for permanent accommodation, will be different to what is suitable in the longer term.

The distinction between meeting needs and taking needs into account is supported by the language in other provisions of the 2014 Order. First, where the legislature intends the 2014 Order to provide that accommodation will be unsuitable unless it meets a certain requirement or need, it says so. For example, other subparagraphs in articles 4 and 5 use the language of ‘meeting’ certain standards. Secondly, article 5 specifies certain additional suitability 3 factors and by article 6, these can be derogated from in an emergency or other specified circumstances. But article 4 cannot be disapplied. If article 4(b) meant that a local authority had to meet all the needs of an applicant and her household, this would create an incoherent scheme whereby the local authority could derogate from various requirements in an emergency but would remain under a duty to meet all the needs of a household.

Applying the scheme (properly understood) to the facts of this case, the accommodation secured for the appellant by the respondent authority did not meet the needs of her household as permanent accommodation would have to do. It was not required to do so. The respondent was required to take account the needs of the appellant’s household in deciding what accommodation would be suitable and the evidence shows that the respondent did so. The respondent’s decision had proper regard for articles 4 and 5 of the 2014 Order and took into account the household’s needs (including those of the appellant’s son). It was well within the range of reasonable decisions open to the authority. It was accordingly a lawful decision.

Suitability of temporary homeless accommodation clarified

The case was led by Govan Law Centre, with intervention coming from Shelter Scotland.

Although the appeal was unsuccessful for the appellant, Alison Watson, director of Shelter Scotland, said the Court has clarified Scots law on the suitability of temporary homeless accommodation and the right to obtain permanent secure accommodation.

Speaking following the judgement, Ms Watson added: “Shelter Scotland intervened in this case because there was longstanding debate amongst councils about how far they need to go when accommodating families experiencing homelessness.

“This is leading to people experiencing real harm while trapped in temporary accommodation as shown in our recent report – ‘In their own words’. That report exposed the adverse experiences of children in unsuitable temporary accommodation who are exposed to disease, violence, and trauma.

“By intervening in this case, led by the Govan Law Centre on behalf of their client, we hoped to guarantee that all families experiencing homelessness would have their need for safe and appropriate accommodation met at every stage in the homelessness system. However, the Supreme Court have ruled that Scotland’s homelessness legislation only requires a family’s full needs to be met when permanent accommodation is provided and not necessarily while they are in hotels, hostels or other forms of temporary accommodation.

“While we are disappointed by the ruling, we welcome the Supreme Court’s recognition that the suitability of temporary accommodation must be kept under review and that councils must consider all aspects of a household’s needs – including health issues such as decreased mobility – when assessing that suitability. Keeping people trapped indefinitely in unsuitable temporary accommodation that fails to address their full needs is unacceptable in our view.

“At a time when the average wait for a family experiencing homelessness in places like Edinburgh is over two years, the challenge to the Scottish Government and to local authorities must be to speed up access to housing by increasing the homes that go to families experiencing homelessness. That is why the Scottish Government must accelerate their national acquisition plan to buy more larger homes for families and take steps to allocate a higher proportion of social housing to homeless people.

“At Shelter Scotland we will study this ruling carefully and determine how best to clarify how long should families be expected to remain in temporary accommodation before their health, mobility and social needs are finally met.”