The Court of Session has ruled today that local authorities are under an absolute legal duty to provide suitable temporary accommodation for homeless households in Scotland, that must meet the needs of disabled children.
The central issue in the judicial review of X v. Glasgow City Council  CSOH 35 was whether a local authority was under an absolute legal obligation to provide accommodation suitable for occupation by a homeless household, taking into account the needs of a household. The petitioner said it was. The respondent said it was not: the respondent had a discretion to balance the needs of the household against other demands on the respondent’s finite resources.
Lord Ericht found in favour of the petitioner. The case concerned The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 (“the 2014 Order”), the Housing (Scotland) Act 1987 and the Equality Act 2010. GLC believes this decision is one of the most significant reported homelessness decisions in Scotland in the last twenty years.
The petitioner was represented by GLC’s Solicitor Advocate, Mike Dailly, instructed by Govanhill Law Centre with Laura McDonagh, Partner, Drummond Miller LLP as Edinburgh agents. The respondent was represented by Graham Middleton, Advocate, instructed by GCC with Harper Macleod LLP as Edinburgh agents.
GLC’s Prevention of Homelessness Manager, Wendy Malloy said: “This is an excellent decision in favour of our client, but this will also impact more widely for all of the other homeless families affected in the same way in Glasgow and Scotland. Many large families are being kept in temporary accommodation far too long due to a lack of suitably sized permanent housing. It is clear from this case that the needs of these families and especially those with disabled children cannot be ignored”.
With respect to duties under the 1987 Act and 2014 Order Lord Ericht held:
“ The issue in this case is whether section 29 taken together with Article 4(1) (b) constitute an absolute duty on the respondent, or whether the respondent has the freedom not to give effect to these provisions. Section 29 states the local authority “shall secure that accommodation is made available.” Article 4 of the 2014 Order states that “in all circumstances, accommodation is unsuitable if [the circumstances in 4 (a) (b) or (c) apply].” In my view the specific and
precise wording of these provisions is a strong indication that they should be interpreted as imposing an obligation of an absolute character. Accordingly, I find that the respondent is under an absolute duty to provide temporary accommodation to the petitioner which is suitable for occupation by the petitioner’s household, taking into account the additional support needs of the petitioner’s son. To put it in another way, the respondent is under an absolute duty to provide a five apartment property.  As this duty is an absolute one, the respondent is not entitled to avoid compliance with its duty for reasons such as those set out in its letter of 10 August 2021 i.e. that it is reliant on third party providers or that there were significant pressures on resources. As Lord Nicholls made clear in the passage quoted above, a local authority is obliged to comply with an absolute duty regardless of whether or not it would prefer to spend its money otherwise: the authority has no choice”.
As regard legal duties under the 2010 Act the court held that:
“ Section 20 (3) of the Equality Act 2010 imposes a duty: “where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” A failure to comply with that requirement is a failure to comply with a duty to make reasonable adjustments (section 21(1)). Person A discriminates against a disabled person “if A fails to comply with that duty in relation to that disabled person” (section 21(2)).  The respondent has the practice, as described in Mr Fulton’s affidavit, of getting the houses it uses for interim accommodation from registered social property owners. The section 20 issue in this case is what the respondent should do if the registered social landlords are unable to provide accommodation which is suitable for a disabled person. Is the respondent required to make a reasonable adjustment to that practice so that it provides suitable accommodation other than from a registered social landlord? Or is the respondent entitled to apply the practice with the result that it fails to provide suitable accommodation for a disabled person? In my opinion the former is correct. The respondent has a wide range of statutory powers under which it can provide accommodation to homeless disabled persons, whether directly or through landlords in the social rented sector or private rented sector. It can source temporary homeless accommodation privately or commercially. It is not restricted as a matter of law to sourcing only through registered social landlords. Indeed, the Homelessness: code of guidance points out that local authorities across Scotland utilise a diverse portfolio of temporary accommodation including local authority, housing association and private rented stock, hostels and bed and breakfast accommodation. Where suitable accommodation cannot be provided by the respondent by following its practice of sourcing accommodation from registered social landlords, obtaining suitable accommodation from other sources would be a reasonable adjustment. Accordingly, had I not found in favour of the petitioner on section 29 of the Housing (Scotland) Act 1987, I would have in any event found in her favour on section 10 of the Equality Act”.
While GCC had suggested it might not be able to comply with a court order to provide a larger property for the petitioner and her family, this was rejected by the court under the principle of the rule of law:
“ It is fundamental to the rule of law that public authorities obey the law and obey the courts. If a court decides that public authority is in breach of a statutory duty, the public authority must comply with the duty. The authority cannot just say that it chooses not to do so because, in its view, it is impossible to do so. It must find a way to comply with its duty. The duty must be discharged: the authority has no choice. It is not up to the court to decide the precise way in which an authority complies with its statutory duty. The authority must find a way and must allocate appropriate resources to do so. If the authority’s usual third-party providers cannot provide it with the means to comply with the duty, then the authority must find other providers who can, or find another way to comply with the decision of the court”.
The court’s full judgment is available here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh35.pdf?sfvrsn=c48e3b1e_2