Council has a duty to have suitable homeless housing
SCOTLAND had 13,192 households with 7510 children in temporary homeless accommodation at the end of last September. That’s the latest figure for our 32 local authorities, who also had 26,000 open homeless cases across the country.
It’s not uncommon for many homeless households to remain in temporary accommodation for years – typically if they have children. Turnover and resettlement are faster for single person households, who tend to be men.
Being stuck in temporary accommodation is akin to being trapped in Dante’s first circle of hell. It truly is an existence of limbo. As temporary accommodation rents aren’t subsidised, and local authorities have a discretion to pursue full cost recovery, the rents can be very high.
This means if you lose your housing benefit because you start a new job or go into further education, you’ll end up with rent arrears and personal debt. While that’s a pernicious outcome, much worse is the fate of people being placed in unsuitable temporary accommodation for indefinite periods.
It used to be the case there was no right to any standards when it came to temporary homeless accommodation: you took what was offered and had to be grateful for small mercies. Yet sometimes we progress as a society, and in 2004 the Unsuitable Accommodation Order was introduced.
The 2004 Order was modest and only applied to homeless applicants who were pregnant or had a dependent child – however it was beefed up in 2014, 2019, 2020 and 2021. From May 2020, it was extended to all homeless persons and became the 2014 Order and defined what was suitable accommodation and what was not.
Last week the Court of Session – Scotland’s highest civil court – held that local authorities were under an absolute legal obligation to provide accommodation suitable for occupation by a homeless household, taking into account the needs of a household.
I had argued this case as instructed by Govanhill Law Centre. Glasgow City Council (GCC) claimed they had a legal discretion to balance the needs of a homeless household against other demands on their finite resources.
In essence, a council could provide legally unsuitable accommodation indefinitely. The court did not agree, and in the judicial review of X v Glasgow City Council, the homeless person won.
The case raises important questions for GCC’s practice when it comes to homelessness in the city. GCC’s position was to effectively claim its hands were often tied in providing suitable accommodation.
It lodged evidence, quoted in the court’s judgment, that explained: “Glasgow City Council does not have its own housing stock. Glasgow City Council transferred all its housing stock as part of a stock transfer process on March 3, 2003. The stock was transferred to Glasgow Housing Association and since that time some of it has been transferred to other registered social landlords. This means that Glasgow City Council gets the
houses it uses for interim accommodation from registered social landlords.
“It also means that the offers of permanent accommodation are offers secured from registered social landlords. Registered social landlords will usually co-operate with Glasgow City Council in making both interim and permanent accommodation available. However, what Glasgow City Council receives is dependent on what registered social landlords have available.”
Clearly, GCC will have to consider how it can provide larger accommodation to meet the needs of certain homeless families, and those with disabilities.
As the 2014 Order extends to single person households GCC will have to examine its practice of sometimes placing applicants in bed and breakfast accommodation for more than seven days. Some bed and breakfast or hotel accommodations lack adequate cooking facilities, contrary to Article 5 of the 2014 Order.
There will be obvious scope to work more closely with local housing associations, the voluntary sector and the private sector to develop a wider portfolio of suitable accommodation in Glasgow. Let’s not forget, GCC has had almost 20 years to do so since the stock transfer. Similar issues may well arise for other local authorities across Scotland.
What is certain is local authorities cannot simply ignore the law. As the court said in X v Glasgow City Council: “In this case however the respondent adopted the wholly extraordinary position that an order for specific performance should not be granted because it proposed not to comply with the court’s decision and instead continue to act unlawfully.
“It is fundamental to the rule of law that public authorities obey the law and obey the courts. If a court decides that public authority is in breach of a statutory duty, the public authority must comply with the duty. The authority cannot just say that it chooses not to do so because, in its view, it is impossible to do so. It must find a way to comply with its duty.”