Court of Session finds in favour of homeless petitioner in judicial review

A judge in the Court of Session ruled that the decision to evict Tapiwa Zungunde by Glasgow City Council (GCC) was “invalid” for want of due consideration and regard of the Scottish statutory Code of Guidance on Homelessness, and for the local authority’s failure to give adequate reasons for its decision, but the petition for judicial review was refused on the basis that the council was not convened as the respondent.

‘Intentionally homeless’

Lord Woolman heard that the petitioner had been sleeping rough on the streets when, in October 2014, he obtained a Scottish Secure Tenancy from the Glasgow Housing Association (GHA). 

At that time he was receiving funding from the Student Awards Agency for Scotland, together with income from low paid employment, but from August 2016 onwards his sole income was Job Seeker’s Allowance (JSA) of £69 per week. 

His rent was met in full by housing benefit, but he defaulted on his rent after running into financial difficulties. 

GHA raised an action to recover possession of his flat, following which the petitioner entered into a repayment plan, agreeing to pay £12.75 per week to clear his rent arrears even though he knew it would be unaffordable.

Unfortunately his belief proved to be correct and he was unable to keep up with his repayments to GHA. 

A sheriff granted decree of eviction in October 2017 and since then the petitioner has resided in a homeless hostel in Glasgow.

Following his eviction the petitioner applied to be rehoused, but on 28 December 2017 he received a letter headed “Glasgow City Health and Social Care Partnership” which refused his application on the basis that he “became homeless intentionally”. 

Judicial review

The petitioner then failed to submit a review request within the 21-day period, but he eventually sought advice in March 2018 from Govanhill Law Centre, which wrote a detailed letter to GCC explaining the petitioner’s financial position and asking for a review of his case to be heard out of time.

A GCC social worker responded by email the same day, refusing the request on the basis that it was “way out with the 21 day appeal period“.

The petitioner then raised these proceedings convening Glasgow City Integration Joint Board as the respondent, seeking declarator that the decision of 28 December 2017 should be quashed, but the board queried whether it was the correct respondent. 

The three issues for decision were: who had legal responsibility for the decision; whether the petitioner had exhausted all his statutory remedies; and whether the decision was unlawful.

The Code of Guidance on Homelessness, which sets out the factors to be considered in determining whether an individual is intentionally homeless, states that it should not be assumed automatically that an applicant is intentionally homeless when they have lost their accommodation because of rent arrears, and that reasons should be fully explored and decisions made as to whether arrears resulted from deliberate acts or omissions.

‘Invalid decision’

The judge held that the local authority’s decision was flawed because it failed to have regard to the Code.

In a written opinion, Lord Woolman said: “Turning to the decision letter itself, it is not apparent that GCC fulfilled any of the steps mentioned in the Code to investigate the cause of the petitioner’s homelessness. No reasonable reader could draw that inference.

“Instead he or she would deduce that GCC had made an automatic assumption without inquiry, contrary to the guidance. 

“The Supreme Court has recently reaffirmed that adequate reasons must be provided in homelessness cases…GCC does not satisfy that test. Its reasons were inadequate.”

The respondent argued that the petitioner’s failure failed to lodge his application for a review of GCC’s homeless decision within the 21-day period rendered the petition “incompetent”.

However, the court rejected this argument on the basis the original decision was “invalid” and that the petitioner’s circumstances were “exceptional”.

“That allows a departure from the normal rule that all other remedies must be exhausted,” Lord Woolman said, adding: “I note that the petitioner sought a review as soon as he received independent advice and that no other route is now open to him. So on the merits I find in his favour.”

But the judge held that while the local authority’s statutory homelessness functions had been delegated in to the Glasgow City Integration Joint Board, the proceedings should have been raised against the council as the decision maker. 

He said: “I am satisfied that GCC was the decision maker, accordingly it should have been convened as the respondent. Only the actual decision maker can be made subject to review…

“The board is involved in overall strategy, not in individual decisions. It has no employees and it would have far reaching ramifications if it were it to be held liable for all decisions made under its procedures.”

The court refused the petition on that narrow point, but made it clear that GCC should read its judgment carefully so as to avoid the need for further legal proceedings to be raised and argued on the same grounds.