Sheriff Appeal Court dismisses damages claim by immigrant alleging he was wrongfully refused homelessness assistance

About this case:

• Citation:
  [2023] SAC (Civ) 28
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Derek Pyle

Riad Djennas alleged that Glasgow City Council had failed to comply with its duties towards him under the Housing (Scotland) Act 1987. It was found by the sheriff that the appellant had not averred a relevant case that the respondent had assumed responsibility for wrongful advice it gave and actions it undertook.

The appeal was heard by Sheriffs Principal Derek Pyle and Kate Dowdalls, along with Appeal Sheriff Derek Hamilton. Dailly, solicitor advocate, appeared for the appellant and Byrne, advocate, for the respondent.

Factual basis

On 9 April 2019 the appellant became homeless after being evicted from his tenancy. He attended the respondent’s offices twice to apply for homeless accommodation in April and May 2019 but each time the respondent refused to assist him and advised him that it did not have a legal duty to accommodate him. It was averred by the appellant that it did so based on an erroneous decision provided by the Department for Work and Pensions that he was not entitled to have recourse to public funds due to his immigration status.

The appellant averred that the respondent committed two separate breaches of statutory duty on 23 April 2019 and in May 2019. These were a failure to make an independent enquiry as to whether the appellant was the subject of immigration control and a failure to issue a written decision notifying the appellant of its decision on the question as to whether it deemed him to be homeless or threatened with homelessness. However, it was held by the sheriff that no duty of care was owed.

It was considered by the sheriff that the only duties pled and relied upon by the appellant were breaches of the statutory duties contained in sections 28 to 30 of the 1987 Act. As to whether the respondent had created a source of danger, the averments were insufficient to provide a basis for, or even the inference of, an assumption of responsibility by the respondent for the appellant’s welfare or safety. The sheriff found that it would not be fair, just and reasonable to impose the duty of care upon the respondent.

For the appellant it was submitted that there was no factual basis for the sheriff to find that the respondent did not assume any responsibility for its wrongful advice and actions. It would be contrary to public policy to hold that a local authority was not responsible for the information and advice it provided to a vulnerable person who presented to them at risk of destitution, whereas other public bodies would be held responsible.

No alternative but to dismiss

Delivering the opinion of the court, Sheriff Principal Pyle observed: “It is accepted by both parties that no private law right of damages is conferred by the breach of a statutory duty itself. That position is uncontroversial and has been explained by the House of Lords and the Supreme Court in a number of cases. The appellant in his pleadings does nothing more than assert a parallel common law duty that emerges from underneath the statutory duty to inquire into homelessness and for a local authority to inform the individual of its decision following that inquiry.”

He continued: “The appellant has failed to make averments about any particular behaviour by the respondent towards him, besides the performance of its statutory functions. The averments that have been pled do not provide a basis on which an assumption of responsibility by the respondent can be established. In the absence of such averments, the sheriff had no alternative but to dismiss the claim for breach of duty of care.”

Assessing whether the sheriff erred in failing to consider whether it would be just to impose such a duty of care, the Sheriff Principal said: “The sheriff approached the task by asking whether the proposed duty of care was novel. She considered it was; however, she decided it was inappropriate to extend the law so as to provide for the duty of care which the appellant sought. We conclude, like the sheriff, that a new duty of care should not be recognised.”

He concluded: “If his claim is analogous to any prior case it is that made in O’Rourke v Camden London Borough Council (1998). Mr O’Rourke alleged that the local authority owed him a duty under the Housing Act 1985 to secure that accommodation was made available for him. That argument was dismissed by the House of Lords. The position is similar in this appeal. To that extent, the appellant’s claim is not novel.”

The appeal was therefore refused.