by Kat McInnes, Solicitor, at the Equality and Human Rights Commission Scotland, with comment from Mike Dailly, Solicitor Advocate
In the recent case, X v Glasgow City Council (the Council), the Court of Session has ruled that local authorities in Scotland have an absolute legal duty to provide suitable temporary accommodation for homeless households, taking into account the needs of the household. It also serves as an important reminder that local authorities must comply with the duty to make reasonable adjustments for disabled people and with the public sector equality duty when providing suitable accommodation.
In this case, the household consisted of a wife (the Petitioner) and her husband and four children. One of the children had autism and was disabled within the meaning of section 6 of the Equality Act 2010.
After being granted refugee status, the family was provided with temporary homeless accommodation by the Council. The accommodation provided was a four apartment property. The Council conducted an investigation of their housing needs which concluded that the family required “a five apartment property in order to accommodate their son’s additional support needs”. Despite the assessment, the Council continued to house the family in the four apartment property. The reason for this was largely the scarcity of available social landlord five apartment accommodation.
Decision – Equality Act 2010
This article focusses first on the significant decision on the duty of local authorities to make reasonable adjustments and the court’s comments on the public sector equality duty.
The duty to make reasonable adjustments requires the Council (and all service and housing providers) to take positive steps to ensure that disabled people can access services. It requires them to anticipate the needs of disabled people and if any provision, criterion or practice places disabled people at a substantial disadvantage, take reasonable steps to avoid the disadvantage; if a physical feature puts a disabled person at a substantial disadvantage, take reasonable steps to avoid the disadvantage; and, if a disabled person, but for the provision of an auxiliary aid, would be put at a substantial disadvantage, take reasonable steps to provide the aid.
Ms X was represented by Mike Dailly, Solicitor Advocate at Govan Law Centre. He argued that the Council should have made a reasonable adjustment to the way it exercised its homelessness functions in terms of section 20 and 29 of the Equality Act 2010 by providing a five apartment or larger property to meet the needs of the Petitioner’s son, in order to ensure he was not placed at a substantial disadvantage and the accommodation was suitable for him. His autism meant that having to share a bedroom with his sister adversely affected his health and wellbeing.
The Council argued that provision of a five apartment property would not be a reasonable adjustment as this would not be a requirement to change a provision, criterion or practice. They argued that the duty to make reasonable adjustments in the provision of a service or the exercise of a public function did not mean service users have a right to any particular outcomes.
Lord Ericht summarised the relevant practice for the purposes of the reasonable adjustment duty as the Council choosing to source accommodation from registered social landlords. He had to decide, in situations where the Council is unable to source accommodation suitable for a disabled person, whether they are required to make a reasonable adjustment to that practice so they provide suitable accommodation from another source, or if they are entitled to apply the practice even if they fail to provide suitable accommodation.
He found that, where suitable accommodation cannot be provided by following the practice of sourcing accommodation from registered social landlords, obtaining suitable accommodation from other sources would be a reasonable adjustment.
As a result, if he had not found in favour of Ms X on the housing provisions (as explained below), she would have succeeded on the grounds that the Council had failed in their reasonable adjustment duty.
Public sector equality duty (PSED)
The Equality Act 2010 also imposes a duty on the Council (and all listed public bodies) when exercising public functions to have due regard to three specific needs. These are: to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under the Equality Act 2010, to advance equality of opportunity between people who share a protected characteristic and people who don’t, and to foster good relations between people who share a protected characteristic and people who don’t. This is referred to as the general duty.
Ms X made detailed submissions on the failure of the Council to comply with the general duty.
The Council also made submissions and relied on the decision in Hotak v Southwark LBC , that the general duty is not a duty to achieve a result but to have regard to the three needs of the PSED and the Council’s decision making process regarding the accommodation was entirely compatible with the PSED.
Lord Ericht briefly considered the PSED arguments. He confirmed that the PSED is not a duty to achieve a result, but a duty to have due regard to achieving the three needs and must be exercised “in substance, with rigour and with an open mind” (as per Hotak). He recognised that within the practice of only seeking temporary accommodation from registered social landlords, the Council officers were trying their best (unsuccessfully) to support the family and provide for the child’s disability. However, this did not mean the PSED had been complied with. He said that he would make no finding on whether the PSED had been met because he had not been addressed on the wider background to the practice, what steps (if any) were taken in respect of the practice itself to take account of disabilities and whether the Council had exercised the PSED “in substance, with rigour and with an open mind” when setting the practice. However, he made the useful observation that: “It is not enough to look only at steps taken by individual officers in applying the practice and working within its constraints: consideration has also to be given to the practice itself.”
Decision – Housing provisions
The relevant legislation in this case included sections 29 and 31 of The Housing (Scotland) Act 1987 (the Housing Act), The Homeless Persons (Unsuitable Accommodation) (Scotland) (Order) 2014 (the 2014 Order) and also the Scottish Minister’s Code of Guidance – The Homelessness: code of guidance.
The Housing (Scotland) Act 1987 “29. — Interim duty to accommodate (1) If the local authority have reason to believe that an applicant may be homeless they shall secure that accommodation is made available for his occupation— (a) pending any decision which they may make as a result of their inquiries under section 28; (b) … (c) where, by virtue of a decision referred to in paragraph (a) or (b), the authority have a duty under section 31 to secure that accommodation of a particular description becomes available for the applicant's occupation, until such accommodation becomes available. (2) In subsection (1), ‘accommodation’, in the first place where the expression occurs, does not include accommodation of such description as the Scottish Ministers may, by order made by statutory instrument, specify. (3) Such an order may— (a) specify any description of accommodation subject to conditions or exceptions, The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 4. In all circumstances, accommodation is unsuitable if it is— (a) not wind and watertight; (b) not suitable for occupation by a homeless household, taking into account the needs of the household; or (c) not meeting minimum accommodation safety standards.
The question regarding the housing provisions was whether section 29 of the Housing Act, read together with Article 4(b) of the 2014 Order above, created an absolute duty on the Council to provide accommodation that was suitable for the needs of Ms X’s child or whether the Council had freedom not to do so?
Ms X argued that it did constitute an absolute duty and the accommodation provided did not conform to the 2014 Order as it did not meet the needs of her son as a disabled person. She argued that the reasons given for not providing the five apartment property were irrational and unreasonable as the Council could source temporary accommodation privately or commercially and were not restricted to using social landlords.
The Council submitted a number of arguments supporting their decision and position that Article 4(b) of the 2014 Order did not impose an absolute obligation to provide accommodation that met the needs of the family, but allowed the Council discretion to balance the needs of the family against other demands on their finite resources.
The court found that the specific and precise wording of Article 4 read with section 29 should be interpreted as imposing an absolute duty and the Council had to provide suitable accommodation taking into account the child’s needs. In this case, that meant to provide the family a five apartment property.
The court confirmed that while, in some circumstances, a reference to “needs” in legislation may be too open-ended to create an absolute duty, this was not the case here. The needs were specifically restricted to housing needs: “the housing needs of a homeless family are not open-ended and are capable of being assessed and being met.”
Mike Dailly, solicitor advocate said: “Govan Law Centre believes Lord Ericht’s decision in X v. Glasgow City Council is one of the most significant reported homelessness decisions in the last twenty years in Scotland for two principal reasons. First, it is understood to be the first case to test the legal impact of the 2014 Order when read with section 29 of the Housing (Scotland) Act 1987, and second, to test the need to make reasonable adjustments to a homelessness practice for temporary accommodation for a disabled child under the 2010 Equality Act.
The 2014 Order was originally introduced as The 2004 Unsuitable Accommodation Order and it created minimum standards for limited groups of homeless persons. But standards improve over time, and it was only in 2014 that the 2014 Order was substantially improved; and then again in May 2020 and January 2021. Indeed, the Petitioner’s case on article 4(b) was not possible until changes were made to the 2014 Order in January 2021 – as the original article 4(b) simply said: “not suitable for occupation by children”. The Statutory Code of Guidance on Homelessness was only updated and improved in November 2019. These changes introduced significant rights for homeless persons.
At a By Order hearing on 17 May 2022, Lord Ericht granted final decree in favour of the Petitioner. This included declarators that the Respondent had acted unlawfully and ultra vires of the 2014 Order; that its failure to make reasonable adjustments to provide the Petitioner with suitable temporary accommodation was ultra vires of section 29 of the 1987 Act when read with sections 20 and 29 of the 2010 Equality Act. An order for specific performance was granted for the Respondent to provide suitable accommodation conform to the 2014 Order no later than 30 September 2022 and judicial expenses were awarded in favour of the Petitioner. Senior counsel for the Respondent indicated that the Respondent intended to reclaim the decision to the Inner House of the Court of Session”.
The Council also argued that the wording “taking into account” conferred discretion on the local authority to balance the needs of the family against other demands on the authority’s finite resources, but this was not accepted by the court.
By Order hearing
As per Mr Dailly’s comment, the court found that the Council had acted unlawfully and made an order (a specific implement) for the Council to provide the family with a five apartment property.
It is worth noting that specific implements are rarely issued (although perhaps not surprising in this case given the Lord Ericht’s comments regarding the Council’s position that they could not and apparently would not seek to comply with the duty).
The Council has now lodged an appeal and so further developments may arise.
As highlighted in the judgment: “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”. And in doing so they must comply with the duty to make reasonable adjustments and the PSED in relation to how they discharge their homelessness duties. This decision will be very useful for those advising homeless families. It will help you to challenge the allocation of unsuitable accommodation using both housing law and the Equality Act 2010. Equality Act arguments should also always be borne in mind if raising any action against service and housing providers.
For further information on local authorities and service provider’s duty to make reasonable adjustments and the PSED, please see the Commission’s Statutory Code of Practice: Services, Public functions and Associations and Technical Guidance on the Public Sector Equality Duty: Scotland.