Laura Ellis For Judicial Review Of Decisions Of Angus Council
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2011] CSOH 44 |
| Year | 2011 |
| Published date | 04 March 2011 |
| Date | 04 March 2011 |
| Court | Court of Session |
| Docket Number | P798/10 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 44 | |
| P798/10 | OPINION OF LORD TYRE in the Petition of LAURA ELLIS Petitioner; for Judicial Review of decisions of Angus Council dated 1 February 2010, 21 April 2010 and 7 July 2010 ________________ |
Petitioner: Bryce; Campbell Smith WS
Respondent: Munro; Tods Murray LLP
4 March 2011
Introduction
[1] In this application for judicial review, the petitioner seeks, firstly, reduction of a decision of Angus Council made on 1 February 2010, upheld on review on 21 April 2010 and adhered to on 7 July 2010 that she is intentionally homeless and, secondly, declarator that the respondents are under a statutory duty to secure that permanent accommodation becomes available for her occupation. The application came before me for a first hearing.
Factual background
[2] In November 2007, the petitioner entered into a 6-month short term assured tenancy with a private landlord for the leasing of premises at 62 Cairnie Street, Arbroath. At that time she was 20 years old. The rent due by the petitioner was £200 per calendar month. It is common ground that the petitioner paid no rent to the landlord although she was at the material time in receipt of housing benefit. She came to the attention of the respondents in about June 2008 when she applied to them for housing, having received notice to quit from her landlord. The respondents carried out an assessment of her circumstances and made further investigations, including attempting to contact the petitioner's landlord. They ascertained that the petitioner's mother refused to allow her to return to live at home. Further notices to quit were served on the petitioner during the summer of 2008. The respondents advised the petitioner to remain in the property as she could not be evicted without a court order. By September 2008 the petitioner had been assessed by the respondents as not being in priority need of housing as she had not been evicted.
[3] On 27 October 2008, no arrears of rent having been paid by the petitioner, a warrant for her ejection from 62 Cairnie Street was granted by the sheriff at Arbroath. She was evicted on or about 24 November 2008 and applied to the respondents for accommodation. A joint assessment of her circumstances was carried out by the respondents and NHS Tayside. It appears from the report of the assessment that she was offered temporary accommodation, which she declined, and that a decision was made by the respondents that she was intentionally homeless. In November 2009 she again applied to the respondents for accommodation. She was assessed as being homeless with priority need and granted a Temporary Accommodation Occupancy Agreement pending decision by the respondents as to whether to provide her with permanent housing. Comment on her physical and mental health was sought and obtained from her general practitioner. By letter dated 1 February 2010, the respondents' assessment officer informed the petitioner that although she was satisfied that the petitioner was homeless or threatened with homelessness, she believed the petitioner had made herself homeless intentionally because
- she failed to pay rent lawfully due for her previous tenancy which led to her being evicted;
- she was in receipt of housing benefit payments but failed to pay this money towards her rent;
- she acted in this way knowing that to do so would result in homelessness or the threat of homelessness; and
- it would have been reasonable for her to continue to live in her home.
In these circumstances the respondents refused to treat the petitioner as a priority case for provision of housing. On the same day the petitioner was served with notice to quit her temporary homeless accommodation.
[4] Representations were made by solicitors acting on behalf of the petitioner, focusing on the circumstances in which the petitioner had left her accommodation at 62 Cairnie Street and on a diagnosis by the petitioner's general practitioner that she had suffered from severe depression since childhood. Following receipt of these representations, the respondents carried out a review of her case. The respondents' decision in the light of that review is contained in a letter to the petitioner's solicitors dated 21 April 2010 from Mr Chris Clancy, the respondents' Housing Officer (Quality Assurance). Mr Clancy stated that he had considered the relevant legislation - the Housing (Scotland) Act 1987 (as amended) - and relevant case law and had due regard to the Code of Guidance on Homelessness (to which I refer further below). In the course of his letter he made the following observations:
"I note you acknowledge that your client has rent arrears in the region of £1800 accrued from her tenancy at 62 Cairnie Street, Arbroath...
I noted that the Assessment Officer established that your client was in receipt of housing benefit for 62 Cairnie Street, Arbroath, that the benefit was paid direct to your client but the rent due was not paid to the landlord. Your client was aware that in return for tenanting the property at 62 Cairnie Street, she was required to pay rent. She submitted a successful claim for housing benefit with this in mind but despite this, chose to spend the money on anything other than her rent. Therefore, I am satisfied that the Assessment Officer was entitled to conclude that your client's homelessness stemmed from her failure to pay her rent.
I am also satisfied that the Assessment Officer was entitled to conclude that your client knew that failure to pay rent would result in homelessness. Your client signed a tenancy agreement in which the respective obligations of landlord and tenant are clearly specified. In addition, while I note the Assessment Officer considered medical information submitted by your client's general practitioner that confirms your client suffers from a depressive condition, I note the medical opinion that while your client's 'low mood would affect memory and concentration and so make remembering to pay rent somewhat difficult for [her]', there is nothing to suggest that your client's condition affects her ability to comprehend and understand the consequences of acting in a certain way or of failing to act."
Mr Clancy then set out his decision as follows:
"Having considered all the information available to me, I am satisfied the Assessment Officer was entitled to conclude that your client's homelessness stemmed from her failure to pay the rent. I am further satisfied that the Assessment Officer was correct to conclude that your client knew that if she failed to pay her rent, homelessness would result. I am satisfied that the Assessment Officer was entitled to conclude that it would have been reasonable for your client to continue to occupy her former accommodation at 62 Cairnie Street, Arbroath.
For all these reasons, the decision of intentional homelessness should stand and consequently, this appeal is dismissed.
I would confirm that the Council will not offer alternative permanent accommodation to your client on a priority basis because it has no statutory responsibility to do so under the 1987 Act (as amended). While your client has been admitted onto the housing list, your client will not be eligible to receive any offers of housing until she has taken steps to address her housing-related debt."
A further letter from the respondents dated 7 July 2010 confirmed that they would not be reversing their decision on the petitioner's application.
Legislation and ministerial guidance
[5] Section 31 of the Housing (Scotland) Act 1987 (as amended from time to time) applies where a local authority are satisfied that an applicant is homeless. Where the local authority are satisfied that the applicant has a priority need and are not satisfied that he became homeless intentionally, they must secure that permanent accommodation becomes available for his occupation. As regards intentional homelessness, section 26(1) of the Act provides as...
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