Scottish Court of Session Decisions

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 follows:

"A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceased to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

Where a local authority decide that a person is homeless but are satisfied that he has become homeless intentionally, they must notify him of this and at the same time notify him of their reasons (section 30(4)(b)).

[6] In relation to homeless persons and persons threatened with homelessness, section 37(1) of the 1987 Act requires a local authority to have regard in the exercise of their functions to such guidance as may from time to time be given by the Secretary of State. In May 2005, the Scottish Executive issued a new edition of the Code of Guidance on Homelessness ("the Code") which contains guidance falling within the terms of section 37(1). According to the foreword by the Minister for Communities, the Code "provides practical guidance on how the legislation and related policies should be implemented". Chapter 7 of the Code is concerned with "Inquiries into Intentionality" and, in terms of paragraph 7.1, "sets out guidance on how a local authority should inquire into intentionality, and provides guidance on different criteria for deciding intentionality". Paragraph 7.6 of the Code states:

"Homelessness officers must consider all the circumstances of an applicant before coming to a decision on intentionality. They should not simply apply standard criteria. They must also be alert to the danger of a precipitate finding of intentional homelessness."

Among the circumstances which, according to the Code, the local authority may wish to take into account are the youth or inexperience of a homeless person. These factors are elaborated upon in paragraph 7.18, which states:

"Failed tenancies are a common occurrence for young people when they first leave home, especially if they have not had much in the way of support to sustain a tenancy. Local authorities should consider the position sensitively and only make a finding of intentionality where there is compelling evidence that the applicant deliberately refused to accept advice or engage with agencies who could provide support and were aware of the consequences of their actions."

Arguments for the parties

[7] Counsel for the petitioner submitted, firstly, that the respondents had failed to give proper and adequate reasons for their decision, and, secondly, that in any event the respondents' decision was irrational and unreasonable. I address these arguments, and the respondents' answers to them, in turn.

(i) Adequacy of reasons

[8] For the petitioner, it was submitted that the respondents had a statutory duty to have regard to the Code, including in particular paragraph 7.18. The petitioner was a young person with her first tenancy who had not had much support to sustain it, and to whom paragraph 7.18 therefore applied. There was no compelling evidence that she had deliberately refused to accept advice or engage with agencies who could provide support. The respondents had failed to give adequate or indeed any reasons for their departure from the Code in making a finding of intentionality. Counsel accepted that the fact that a decision-maker has to have regard to a policy does not necessarily mean that he necessarily has to follow it. However, if he is going to depart from it, he must give clear reasons for so doing in order that the recipient of the decision will know why an exception to the policy is being made: see Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86, Lord Woolf at 94; R v London Borough of Croydon (1994) 26 HLR 194, Mr A Collins QC at 209-10 (a homelessness case). In the present case, the respondents' initial decision made no reference to the Code and did not address the guidance given in paragraph 7.18. In his review, Mr Clancy did state that he had due regard to the Code, but it was not sufficient to make a general reference to the Code without explaining why the guidance in paragraph 7.18 was being departed from in the petitioner's case.

[9] Prior to the first hearing of this application, the respondents had lodged an affidavit by Mr Clancy containing additional information regarding the reasons for his decision. Under reference to Chief Constable v Lothian and Borders Police Board 2005 SLT 315 per Lord Reed at para 70, and the authorities there cited, counsel for the petitioner submitted that in a case such as this where there was a statutory duty (in section 30(4)(b) of the 1987 Act) to give reasons, the provision of adequate reasons with the decision was a condition of its validity. It was not open to the respondent to state reasons retrospectively.

[10] For the respondent it was argued that although the respondents had a duty to have regard to all material considerations, including relevant provisions of the Code, they were under no duty to mention them all in the decision letter. Reference was made to Bolton Metropolitan District Council v Secretary of State for the Environment (1996) 71 P&CR 309 (HL), Lord Lloyd of Berwick at 313-4 and to South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 (HL). In the latter case, Lord Brown of Eaton-under-Heywood observed at para 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved.... The reasons need refer only to the main issues in the dispute, not to every material consideration.... A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

In the present case the petitioner could have been in no genuine doubt as to the reason why the respondents had concluded that she was intentionally homeless: it was because she had chosen not to pay rent, despite being in receipt of housing benefit, knowing that the consequence would be eviction from her home. Mr Clancy's letter explained this and also explained why the respondents had taken the view that there was nothing in the petitioner's medical history to indicate that the failure to pay rent was other than deliberate. The letter thus made clear why the respondents had concluded that the statutory test for intentionality in section 26 was met. There was no obligation to mention any particular paragraph of the Code.

(ii) Irrationality and unreasonableness

[11] Although he submitted that Mr Clancy's affidavit could not rectify an inadequacy of reasons given at the time of the decision, counsel for the petitioner contended that it could nevertheless be looked at to demonstrate irrationality in the respondents' approach to the matter. What the affidavit showed was that Mr Clancy had asked himself the wrong question. He had considered whether there had at any time been a person who had a duty to advise or provide support for the petitioner and, having concluded that there was not, decided that paragraph 7.18 did not apply. What he should have considered was whether or not the petitioner had had the advice or support to which the Code refers. If he had asked himself that question he could only have concluded that she had not, and accordingly that she should not be found to be intentionally homeless. The decision to the contrary was therefore irrational and unreasonable.

[12] Counsel for the respondent emphasised that the local authority's duty was to determine the petitioner's application in accordance with the statutory provisions, due regard being had to ministerial guidance contained in the Code. Her primary position was that refusal of the application was not inconsistent with the terms of paragraph 7.18. The petitioner was in receipt of housing benefit, which could be regarded as a form of support to sustain a tenancy. She was in contact with the respondents' social services as early as June 2008. She had therefore had access to appropriate advice and support. In any event, it was submitted that if there was conflict between the statutory provisions and the Code, the statute must prevail. On a literal reading of the Code, a more restrictive definition of intentional homelessness would be substituted for the statutory definition: there could never be a finding of homelessness in relation to a young person unless there were compelling evidence that he or she refused to accept advice or engage with agencies who could provide support. That was not the statutory test. The Code was no more than ministerial guidance which did not have to be applied rigidly by a housing authority if this was not merited by the circumstances of the case (Mazzaccherini v Argyll & Bute District Council 1987 SCLR 475, Lord Jauncey at 478).

[13] Counsel for the respondents also made reference to various passages in the judgment of the Court of Appeal in Yemshaw v Hounslow London Borough Council [2010] HLR 23 emphasising the prevalence of the statutory provisions in any conflict with the guidance offered by the equivalent English Homelessness Code. It has been drawn to my attention by counsel that since the hearing in the present application took place, an appeal in Yemshaw has been heard by the Supreme Court, where a similar approach was taken to the relationship between statute and Code. Lady Hale (with whom Lord Hope and Lord Walker agreed) observed at paragraph 25 that

"...it is not for government and official bodies to interpret the meaning of the words which Parliament has used. That role lies with the courts."

At paragraph 55, Lord Rodger, having noted that in the most recent version of the English Code, the term "violence" and hence the expression "domestic violence" had been accorded a broader scope than previously, observed:

"It is not, of course, suggested that this notable change in the Secretary of State's Code of Guidance could directly affect the true construction of the statute: such guidance can be at most persuasive of the meaning to be given to legislative provisions. It is, after all, for the courts not the executive to interpret legislation."

Discussion

[14] I find it convenient to consider first the petitioner's argument that the respondents' decision was irrational and unreasonable. I accept the respondents' argument that their duty was to assess intentionality in accordance with the statutory test and not, if different, the guidance provided by the Code. The respondents were obliged, in terms of section 37 of the 1987 Act, to have regard to the Code but, as Yemshaw makes clear, the Code is at best persuasive of the meaning to be given to legislative provisions. So far as paragraph 7.18 is concerned, it seems to me that the Code is attempting to ensure that local authorities take a sensitive approach when assessing whether a young person has "deliberately" done or failed to do something which has resulted in his or her being forced to leave suitable accommodation. If, however, paragraph 7.18 were to be interpreted as precluding a local authority from making a finding of homelessness in any case where there was no compelling evidence of deliberate failure to accept advice or engage with support agencies, as the petitioner seeks to do in the present case, then in my opinion an additional condition for a finding of homelessness would be imposed which has no statutory foundation.

[15] As I have mentioned, Counsel for the respondents contended that the present case could be regarded as falling within the circumstances described in paragraph 7.18. I am not persuaded that this is so. Rather, the petitioner does appear to have engaged with certain agencies to the extent that she applied successfully for housing benefit and later (albeit too late to save her tenancy) sought assistance from the respondents. It is, in any event, clear from Mr Clancy's affidavit that he did not reach his decision by applying the guidance in paragraph 7.18. However, I accept the alternative submission by counsel for the respondents that the respondents did not err in law by making a finding of homelessness, notwithstanding the terms of the guidance. The respondents correctly did not regard paragraph 7.18 as erecting a hurdle, additional to the terms of section 26 of the 1987 Act, which had to be surmounted before a finding of homelessness could be made. In my view, in circumstances where the applicant was in receipt of housing benefit yet made no payments of rent to her landlord throughout the duration of the tenancy, the respondents were entitled to conclude that she had chosen not to implement her contractual obligation to pay rent and, accordingly, that she had deliberately failed to do something in consequence of which she was evicted from accommodation which it would otherwise have been reasonable for her to occupy. I therefore reject the petitioner's contention that this decision was irrational or unreasonable.

[16] Turning to the adequacy of reasons given for the respondents' decision, I agree with counsel for the petitioner that, having regard to the statutory obligation in section 30(4) to give reasons, the question of adequacy should be assessed by reference to the reasons given at the time of the decision and that I should not, in this context, have regard to any different or amplified reasons provided by Mr Clancy in his affidavit. The decision letter sent by Mr Clancy to the petitioner's agents on 21 April 2010 following review of the petitioner's case states that due regard was had to the Code, and the question is therefore whether the absence of any specific reference to paragraph 7.18, including an explanation of why the guidance contained in that paragraph was not being applied, constitutes a failure to give proper and adequate reasons for the respondents' finding of intentional homelessness. In my opinion it does not. Applying the test enunciated by Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2), which I set out in paragraph 10 above, the respondents' duty in the present case was to give reasons which enabled the petitioner to understand why a finding of intentional homelessness had been made. In my view the passages from the letter of 21 April 2010 (set out at paragraph 4 above) provide ample explanation to the petitioner of why the finding has been made. As the authorities make clear, there is no duty incumbent upon a decision-maker to refer to every material consideration: it is sufficient to address the main issues in dispute. Here the main issue was whether the petitioner had acted deliberately in failing to pay rent to her landlord and this is, in my view, properly and adequately addressed in the letter. A specific response is given to the arguments presented on behalf of the petitioner by her solicitors, including in particular the argument on medical grounds. It was not, in my view, necessary for the decision maker to refer ex proprio motu to a paragraph of ministerial guidance which he did not consider applicable to the circumstances of the case. Accordingly there has in my opinion been no failure on the part of the respondents to give proper and adequate reasons for their decision.

Disposal

[17] For these reasons I shall repel the pleas in law for the petitioner, sustain the first plea in law for the respondents and dismiss the petition.