Court clarifies local authority duties re temporary accommodation for homeless people

The Court of Session has issued a landmark decision in an appeal in relation to local authority duties to provide temporary accommodation to homeless people.

The decision issued by the Inner House of the Court of Session marks one of the most significant housing cases for the public sector in Scotland.  It provides helpful clarification and guidance as to the scope of a local authority’s duties when providing temporary accommodation to homeless people in terms of section 29(1) the Housing (Scotland) Act 1987 and Article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014. The full decision can be read here: Glasgow City Council v X and Shelter, the National Campaign for Homeless People Limited (Interveners) [2023] CSIH 7.  This decision overturns the decision of a single judge sitting in the Outer House of the Court of Session, (X v Glasgow City Council [2022] CSOH 35), which we reported on last year here.

To summarise, the case concerned a homeless family, made up of a couple and their four children. Glasgow City Council (GCC) housed the family in a temporary four apartment property (one with three bedrooms and a living room).  A housing needs assessment subsequently identified a need for permanent accommodation in a five apartment property, due to the son’s additional support needs. GCC endeavoured to find such accommodation on a permanent basis, but a lack availability of housing stock of a larger size meant that the family could not be accommodated on that basis immediately. In the initial decision, the Outer House found that GCC housing a family in temporary accommodation which fell short of their identified need amounted to a breach of GCC’s statutory duties in terms of the 1987 Act and the 2014 Order.

Scope of the Appeal

The appeal chiefly focuses on the scope of the local authority’s duty to provide temporary accommodation.  The starting point is section 29(1), which requires a local authority to provide a homeless household with temporary accommodation until accommodation of a “particular description” becomes available for permanent occupation.  Article 4(b) of the 2014 Order states that this temporary accommodation should be “suitable for occupation by a homeless household, taking into account the needs of the household”. The Outer House construed the terms of Article 4(b) to impose an absolute obligation on local authorities to provide temporary accommodation that immediately meets the household’s housing needs. Such an interpretation placed additional pressures on local authorities striving to meet the needs of thousands of homeless people, against a backdrop of finite resources in terms of available accommodation and finances.

Decision of the Inner House

The Inner House, finding in favour of Glasgow City Council, concluded that the Lord Ordinary had erred in his interpretation of the duties imposed by s.29(1) of the 1987 Act and Article 4(b) of the 2014 Order, and clarified the extent of the duties.

In looking at the whole statutory scheme, there is separate provision for temporary and permanent accommodation. When the accommodation is temporary, Article 4(b) of the 2014 Order provides that it should be “suitable … taking into account the needs of the household”.  Conversely, when it comes to permanent accommodation, section 32(5) of the 1987 Act imposes a higher standard, by requiring the accommodation to meet the assessed needs of each member of the household. In looking at the two separate provisions, the Inner House concluded that the statutory framework clearly intended to distinguish between the standards required for temporary and permanent accommodation.

Temporary accommodation, is by its very nature, 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 as a group.

In the current case, the temporary accommodation was of a size that would permit the Petitioner’s son to have his own room, for example, if his other siblings were to share, or by using the living room as a bedroom at night.  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 present 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.  Such assessments being subject to review on traditional public law grounds such as unreasonableness.

For local authorities operating in challenging circumstances, against the backdrop of a housing and cost of living crisis, this decision will provide welcome clarification of their legal duties.