Hazel Gallacher (ap) V. Stirling Council For Judicial Review Of A Decision By Stirling Council
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 02 May 2000 |
| Docket Number | P2/4 |
| Court | Court of Session |
| Published date | 03 May 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| P2/4/99
| OPINION OF LORD MACFADYEN in the petition of HAZEL GALLACHER, (AP) Petitioner; against STIRLING COUNCIL Respondents: for Judicial Review of a Decision by Stirling Council ________________ |
Petitioner: Sutherland; Erskine Macaskill & Co
Respondents: K McGowan, Solicitor Advocate; Dundas & Wilson
2 May 2000
Introduction
[1]In this petition the petitioner seeks to bring under review a decision made by the respondents, Stirling Council, and intimated to her by letter dated 7 December 1998, by which they allocated to her, in purported implement of their duty under section 31(2) of the Housing (Scotland) Act 1987 ("the 1987 Act"), accommodation at 49h Cultenhove Road, St Ninians, Stirling. She also seeks to bring under review the policy or practice which, she says, the respondents followed in making that allocation, namely a policy or practice of offering to homeless persons accommodation only in areas of high housing turnover. The remedies which she seeks are (i) declarator that the respondents' policy or practice is unreasonable and unlawful; (ii) reduction of the policy; (iii) declarator that the decision set out in the letter of 7 December 1998 was unreasonable and unlawful; (iv) reduction of that decision; and (v) an order on the respondents to continue to provide accommodation to the pursuer in terms of section 29(1) of the 1987 Act.
The Statutory Framework
[2]Before turning to the circumstances of the case it is convenient to take note of the principal relevant provisions of the statutory scheme for the housing of homeless persons. Those provisions are to be found in Part II of the 1987 Act. The definition of a homeless person is set out in section 24, but it is not necessary to set out the detail of that provision, since it is not disputed that the pursuer is a homeless person. Section 25 provides that certain persons have a priority need for accommodation. Again it is unnecessary to set out the provision in detail, since it is accepted that the pursuer, because her dependent children reside with her, has a priority need. Section 26 defines the circumstances in which a person becomes homeless intentionally, but it is accepted that the pursuer is not in that category. Section 27 defines the circumstances in which a person is regarded as having a local connection with a district. Section 28 places on a local authority, if they have reason to believe that an applicant may be homeless, a duty to make such inquiries as are necessary to satisfy themselves as to whether that is so; if so satisfied, the authority must make any further inquiries necessary to satisfy themselves as to whether the applicant has a priority need, and whether he or she became homeless intentionally. Pending such inquiries, the authority has a duty, if they believe that the applicant may be homeless and have a priority need, to secure that accommodation is made available for his or her occupation. That duty arises irrespective of any local connection that the applicant may have with the district of another authority. On completion of those inquiries the authority must in terms of section 30 notify the applicant of their decisions on the questions of homelessness, priority need and intentionality. If the decision is adverse, the applicant must at the same time be notified of the reasons for it.
[3]The duties of the authority to persons found to be homeless are set out in section 31. The content of the duty varies according to whether the applicant has a priority need and whether he or she has become homeless intentionally. For present purposes it is sufficient to note that subsection (2) provides as follows:
"Where [a local authority] are satisfied that [the applicant] has a priority need and are not satisfied that he became homeless intentionally, they shall, unless they notify another local authority in accordance with section 33 (referral of application on ground of local connection), secure that accommodation becomes available for his occupation."
[4]It is also convenient to note a number of provisions in Part I of the 1987 Act, which are concerned with the allocation of housing more generally, and upon which Mr Sutherland relied in advancing his submissions on behalf of the petitioner. Section 19 is concerned with admission to a local authority's housing list. Sub-section (1) provides that in considering whether an applicant for local authority housing is entitled to be admitted to a housing list, a local authority shall take no account of certain factors which may be summarised as age, income, ownership of heritable property, outstanding rent liability in respect of any house of which the applicant was not the tenant, and whether the applicant resides with a spouse or partner. Subsection (2) provides that:
"Where an applicant -
- is employed in the area of the local authority; or
- has been offered employment in the area of the local authority; or
- wishes to move into the area of the local authority and the local authority is satisfied that his purpose in doing so is to seek employment; or
- has attained the age of 60 years and wishes to move into the area of the local authority to be near a younger relative; or
- has special social or medical reasons for requiring to be housed within the area of the local authority,
admission to a housing list shall not depend on the applicant being resident in the area."
Sub-section (3) provides that:
"Where the rules made by a local authority under section 21(1) give priority to applicants on its housing list it shall apply those rules to an applicant to whom subsection (2) above applies no less favourably than it applies them to a tenant of the local authority whose housing needs are similar to those of the applicant and who is seeking a transfer to another house belonging to the local authority."
Section 20(1) provides that:
"A local authority shall, in relation to all houses held by them for housing purposes, secure that in the selection of their tenants a reasonable preference is given -
- ...
- to persons to whom they have a duty under sections 31 to 34 (homeless persons)."
Section 21 provides inter alia as follows:
| "(1) | It shall be the duty | |||
| (a) | of every local authority to make and to publish in accordance with subsection (4), and again within six months of any alteration thereof, rules governing - | |||
| (i) | the admission of applicants to any housing list; | |||
| (ii) | the priority of allocation of houses; ... | |||
| (4) | The rules to be published by a body in accordance with subsection (1) or (2) shall be - | |||
| (a) | available for perusal; and | |||
| (b) | on sale at a reasonable price; | |||
| (c) | available in summary form on request to members of the public at all reasonable times - | |||
| (i) | in the case where the body is a local authority ... at its principal offices and its housing department offices; ..." |
The Circumstances of the Case
[5]The petitioner's narrative of her circumstances and of the events which led to her making an application to the respondents for accommodation, as set out in her averments and supplemented in some respects by reference to documents produced, may be summarised as follows. She was born on 19 December 1964 and was therefore 33 years of age at the time of her application to the respondents. She is a widow. She has three children, Amanda (born on 25 January 1984), Laura (born on 26 June 1987) and Stacey (born on 1 January 1992). She was at the time of the hearing pregnant, expecting the birth of her fourth child in April 2000. She formerly lived with a partner in accommodation tenanted by him at 15 Meiklehill Court, Kirkintilloch. That accommodation was owned by the local authority, East Dunbartonshire Council. On or about 19 August 1998, following the break up of her relationship with her partner, she applied to the respondents for housing. The petitioner avers that she was advised at the time when she made the application to the respondents that in terms of their policy, if she were made an offer of permanent housing, it would be in an area where there was a high turnover of housing stock. That averment is admitted by the respondents. The petitioner was, at that time, still living at 15 Meiklehill Court. East Dunbartonshire Council refused to allow her to take over the tenancy because of rent arrears, and she was given notice to quit. Her partner then returned to the property and withdrew his consent to her occupation of it. She left the property in September 1998. Initially the respondents placed the petitioner and her children in temporary bed and breakfast accommodation in Stirling. The petitioner, however, asked to be placed in accommodation nearer to her father, who lives in Killearn, and her sister, who lives in Drymen. She was then placed by the respondents in temporary accommodation at 1 Station Road, Balfron, which happened then to be available. That placement was made by the respondents in fulfilment of their obligation to the petitioner under section 29(1) of the 1987 Act, pending final determination of her application for housing as a homeless person. Some eighteen months later she remains in that temporary accommodation.
[6]On or about 12 October 1998 the respondents accepted that the petitioner was homeless, that she had a priority need for accommodation, that she had not become homeless intentionally, and that she had a local connection with the respondents' area. They therefore accepted that they had a duty to secure that accommodation became available for her occupation. The letter intimating their decision to her stated:
"In the event that you refuse an offer of permanent accommodation, you will be required to vacate any temporary accommodation that you are occupying and you will also not be eligible for housing from the waiting list for a period of six months.
In accordance with Council policy you will initially be considered for the following area:
...
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