Outer House judge finds Edinburgh council in breach of duties towards homeless refugee

Abdelwahab-Kaba Dafaalla sought declarator that Edinburgh City Council has failed to fulfil its statutory duty under the Housing (Scotland) Act 1987 in refusing to accept an application from him for accommodation and assistance.

The petition was heard by Lord Brailsford. The petitioner was represented by Stalker, advocate, and the respondent by Anderson.

Risk of coronavirus

The petitioner was granted indefinite leave to remain in the UK in 2014, with his wife and six children joining him the following year. He was noted as suffering from Type 2 diabetes, functional dyspepsia, and osteoarthritis in his left knee, all of which he was receiving treatment for.

In May 2015 the petitioner applied to ECC for accommodation and assistance under section 28 of the 1987 Act. He and his family were provided with temporary accommodation in Edinburgh. During the course of 2016, the respondent determined that the petitioner was homeless and that they were subject to a duty under section 31(2) of the Act to secure permanent accommodation for him.

Two offers of accommodation were made to the petitioner in 2016, both of which were refused. In October of that year, the respondent decided that it had discharged its duties towards him and raised eviction proceedings in respect of his temporary accommodation.

Following the obtaining of an order for recovery of possession, another offer for permanent accommodation was made and refused. The petitioner was then evicted from his temporary accommodation in January 2020. He made another section 28 application in March 2020, which the respondents refused to accept.

It was submitted for the petitioner that there was no provision in the 1987 Act dealing with repeat applications in respect of homelessness. In the absence of direct statutory provision, regard should be had for English decisions that established a principle where repeat applications should only be refused where the facts were essentially the same between applications.

In applying this principle to the present case, counsel submitted that the petitioner was at increased risk of severe illness should he contract coronavirus, and there was therefore an urgent need to protect him from contracting the virus. In rejecting the petitioner’s second application, the respondent had not considered whether the facts had changed since the previous one.

In reply, counsel for the respondent submitted they had performed all duties owed to the petitioner under the 1987 Act and could not be compelled to do so again in the present circumstances. The reasons for the petitioner’s homelessness were materially identical to the reasons presented in the first application.

Bare consideration

In his decision, Lord Brailsford noted the similarities between many of the submissions for both parties, saying: “In my view, the issue for the court has resolved to a determination of the ambit of the duty imposed upon the respondents by section 28 of the 1987 Act and, following therefrom, whether in the factual circumstances of this petition that duty has been discharged.”

Addressing the procedure to be followed in repeat applications under section 28, he said: “There is no statutory guidance in the 1987 Act as to how local authorities such as the respondent should treat such an application. It seems to me that in the absence of statutory guidance the respondents have no alternative but to fulfil their duties set forth in section 28 of the 1987 Act.”

Evaluating the English authorities cited, he went on to say: “Emanating as they do from in the case of Fahia the House of Lords and in Begum the Court of Appeal, they are of highly persuasive authority in this court.”

He continued: “In [R v Harrow LBC EX P Fahia (1998)], Lord Browne-Wilkinson expressed sympathy with a local authority’s position when faced with a repeat application that appeared unlikely to lead to any decision other than that reached in the first application but notwithstanding he felt himself ‘… unable to extract from the statutory language any sufficient justification for the suggested short cut.’ I consider that dictum equally applicable in the circumstances of the present case.”

On the approach taken by the respondent to the second application, Lord Brailsford said: “The allegedly new circumstances set forth in the email of 24 March 2020 are brief and might, on inquiry, amount to no more than a repeat of a claim or position that has already been investigated and determined. The problem is, in my view, that the respondents do not, having regard to the terms of their reply, appear to have carried out any inquiries.”

He continued: “It is plain from the terms of the response that the refusal to accept the application is based upon a consideration of the contents of the email without any investigation as to any aspect of those contents.”

Lord Brailsford concluded: “I do not consider that the bare consideration of the email of 24 March without any further inquiry or investigation in relation to what was disclosed therein would entitle the respondents to take the position they did in their response. I note further that they offer no explanation in the response as to any reasoning behind the decision they reached. The terms of the response amount in my view to no more than an assertion that there was nothing further to consider.”

For these reasons, Lord Brailsford granted declarator in the terms sought by the petitioner and ordered the respondents to perform their duties under the 1987 Act in respect of the petitioner’s application.