The UK Supreme Court has handed down its judgment this morning (Wednesday, 9 April 2025) in the Scottish homeless case of Glasgow City Council v X. Although the appeal was unsuccessful for the appellant, the Court has clarified Scots law on the suitability of temporary homeless accommodation and the right to obtain permanent secure accommodation.
The issue before the Court was whether temporary (interim) homeless accommodation provided by local authorities pursuant to the section 29 duty of the Housing (Scotland) Act 1987 (the “1987 Act”) must meet “the needs 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 “2014 Order”).
Needs of the household
The Court found that: “Critically, for the purposes of this appeal, accommodation is unsuitable if the accommodation is not suitable for occupation by a homeless household, “taking into account the needs of the household”: see article 4(b). The assessment of suitability must therefore involve consideration of the needs of the homeless household, defined by article 2 as meaning “the applicant and any person who resides, or might reasonably be expected to reside, with the applicant”.
“42. The concept of the “needs of the household” (that is of the applicant and each member living with the applicant) is relevant at both the interim duty stage and at the section 31 (permanent) stage. The “needs” referred to in both cases are their needs as regards accommodation. These may be special or particular (for example, resulting from a protected characteristic such as disability or other medical or physical needs or vulnerability that affects a person’s ability to access the accommodation or the nature of the accommodation that will be suitable for them); or the needs may be general (for example, resulting from the number of members of the household or their ages)”.
“There is no warrant for any gloss on the word needs or the phrase the “needs of the household”. To the extent that the judgment of the Inner House has been read or understood as drawing a distinction between special, particular or general needs (whether of the household or of individuals living with the applicant), then that is wrong. Needs in this context means all relevant needs as regards accommodation, whether special or particular, general, medical or otherwise“. (emphasis added).
Article 4(b) as a process duty
The duty under article 4(b) of the 2014 Order was found by the Court to be a process duty and not an outcome driven duty: “44. There is, accordingly, 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”.
“The distinction is one that is well recognised in other legislative schemes (see for example the duty to have “due regard” in section 149 of the Equality Act 2010 which does not dictate a particular outcome or result but is a duty on public bodies to consider – or have due regard for – the impact of certain equality considerations when exercising their functions). Where the legislation requires needs to be “taken into account” it does not introduce a requirement that must be met for the accommodation to be suitable. Rather, article 4(b) (and the other provisions of the 2014 Order referred to above) introduce a factor which must be taken into consideration when deciding whether or not the accommodation is suitable”.
In contrast, the Court held (para 45) that the obligation to secure permanent accommodation was more stringent and demanding: it 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)).
The 2014 Order and mandatory requirements
At para 47 of Lady Simler’s Opinion, the Court set out those parts of the 2014 Order that had to be met on a mandatory basis: “The distinction between meeting needs and taking such needs into account is borne out by the language in other provisions of the 2014 Order. First, article 4 itself sets out certain irreducible minimum requirements that must always be met for accommodation to be suitable. In doing so, it uses different language to that used in article 4(b): see the requirement to be wind and watertight in article 4(a) and the requirement to meet minimum safety standards in article 4(c). Secondly, article 5 specifies certain additional suitability factors and by article 6, these can be derogated from in an emergency or other specified circumstances. The language used in the different subparagraphs of article 5 is significant. Article 5(c) is a requirement that must be met. By contrast, the requirements in articles 5(b) and 5(g) are both factors that must be taken into account, or considered, rather than met in order for suitability to be established. In other words, 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”.
Rationality as the control
While article 4(b) of the 2014 Order was found to be a duty of process, the failure to have due regard to this duty by local authorities could clearly give scope for challenge by way of judicial review under a rationality challenge: “The assessment of suitability under section 29 and article 4(b) is, of course, subject to the supervisory jurisdiction of the court. The control is rationality. Provided the local authority reaches a decision that is within the range of reasonable decisions available, it will not be open to challenge because some needs have not been met. No doubt, it would be irrational to conclude that accommodation on the upper floors is suitable for the household in the first example, and irrational to consider that a small one-apartment property is suitable in the second example. If the decision maker were to leave out of account a relevant matter (material to the accommodation needs of the household) or reach an irrational decision, the applicant would have a remedy on judicial review. It is also the case that when the needs of the household are taken into account, temporary accommodation may be suitable for occupation by that household for a short period, but the point may come beyond which that accommodation ceases to be so and becomes unsuitable: see for example, R (Imam) v Croydon London Borough Council [2023] UKSC 45; [2025] AC 335 at para 38″.
For the appellant: Roddy Dunlop KC, Dean of the Faculty of Advocates and Mike Dailly, Solicitor Advocate appeared as counsel; instructing solicitors Rachel Moon, Partner, Lorna Walker, Senior Solicitor and Charis Brooks, Solicitor; Laura McDonagh, Partner at Drummond Miller LLP acted as Edinburgh and London agents. David Johnston KC and Graeme Middleton, Advocate appeared as counsel for the respondent; instructed by Harper MacLeod LLP and Glasgow City Council’s legal department.
