BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gallacher (AP) v Stirling Council For Judicial Review [2000] ScotCS 116 (2 May 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/116.html
Cite as: [2000] ScotCS 116
[New search] [Help]

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 -

    1. is employed in the area of the local authority; or
    2. has been offered employment in the area of the local authority; or
    3. 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
    4. 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
    5. 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 -
    1. ...
    2. 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:

Cornton and Cultenhove only."

[7] On or about 13 October the respondents made the petitioner an offer of accommodation at 49h Cultenhove Road, St Ninians, Stirling. When she was advised that the accommodation was ready for occupation, she visited it. She avers that the close entrance was filthy, that children were using drugs in the close and that her eldest daughter refused to move to the property. She refused to accept the offered accommodation and appealed against the decision to offer only that property. Her appeal was refused on 4 November. She again appealed against the respondents' decision not to make any other offer of accommodation. The petitioner's averments go on to mention various submissions made by her and others on her behalf. I shall return to the detail of the material which was put forward in support of the appeals. The substance of the contention was that the petitioner should be accommodated not in Stirling, but in the part of the respondents' area known as the "West Villages", which encompasses inter alia Killearn, Drymen and Balfron. On 7 December 1998 the respondents wrote to the pursuer intimating that having considered all the circumstances they took the view that it was not unreasonable to have offered her the accommodation in Stirling. The appeal was therefore refused, and the property at 49h Cultenhove Road was re-offered to her. (Although the petitioner's averments are couched in terms of her having made two successive "appeals" and those "appeals" having been "refused", it should be noted that the legislation makes no provision for a right of appeal against an offer of accommodation made in implement of the authority's duty under section 31(2). It seems to me that what happened is more accurately described as the petitioner's having asked the respondents to reconsider whether the allocation of accommodation which they had made was in all the circumstances reasonable, and their having done so on two successive occasions, adhering on each occasion to the view that the original allocation was reasonable. Although it was not made clear in the course of the hearing, it may be that the use of the "appeal" terminology derives, perhaps only by analogy, from Section 3 of the respondents' Housing Allocations Policy.)

[8] Since it is only the decision of 7 December 1998 that the petitioner seeks to bring under review, it is not necessary to distinguish between the material placed before the respondents in support of the appeal against the original allocation and the material placed before them in support of the second appeal against the letter of 4 November refusing the first appeal. By the time they made the decision expressed in the letter of 7 December, the respondents had before them all the material on which the petitioner sought to rely. In her letter of 28 October 1998 the petitioner sought to appeal against the allocation of accommodation at St Ninians, writing:

"My father who is disabled and needs help from me and my sister who also lives in the West Villages are anxious that I could be allocated a tenancy in their area, i.e. Killearn - Drymen etc. To be near each other for support, and help me settle with by three daughters who all have already enrolled at the local school, our social worker has said he will write to you and I am hoping for a favourable reply."

The letter from the social worker was dated 27 October. It made, in essence, two points, namely (1) that it would give the family stability to live in the Balfron area where they would have support from the petitioner's father and sister, and (2) that the petitioner's eldest daughter, who had experienced difficulties in relation to school attendance in the past, had coped relatively well with the move to Balfron High School, and that it would be a matter of concern if she had to move again to a school in Stirling. For these reasons it was suggested that a move to Stirling would be detrimental. On 13 November Anne McGuire MP, who had been approached by the petitioner's father, wrote to the respondents' chief executive. She mentioned there having been a history of difficulties for the petitioner and her family, that the petitioner's father was "keen that they are placed in a position of stability where they can receive family support", that the children were settling well in school in Balfron, and that the petitioner and her father believed that accommodation away from her family would have a "very negative impact" on the lives of the petitioner and the children and the welfare and education of the children. The petitioner then wrote to the respondents (date-stamped, presumably when received by the respondents, 30 November 1998) to intimate that she had obtained employment working with disabled people near Fintry, and expressing hope that that would help her request to be housed in that area. She wrote a further letter (date-stamped on receipt, 3 December 1998) in which she reiterated the points previously made that the children were settling in well to school in Balfron (adding that her eldest daughter was in the midst of preliminary examinations, which would make a move to another school particularly detrimental), that they were all settling well into the village, which was near the petitioner's father and sister, that she was now employed and would not be able to get to work from Stirling, and that her father was registered as disabled and relied on her for help. The respondents' file also contains a letter of support for the petitioner's position from the Rector of Balfron High School, but that was dated 14 December, and sundry other material which also came after the decision which the petitioner seeks to bring under review had been made.

The Decision Letters

[9] The terms of the respondents' original decision letter are set out in paragraph [6] above. On their first review of the allocation, their letter of 4 November expressed their decision in inter alia the following terms:

"I would initially advise you that in the case of a homeless applicant, the Council is unable to guarantee that allocations will be made within specific areas of choice. The Council must have regard to what is reasonable and practicable given the very low availability of Council housing in many parts of the Stirling area.

You will be aware that when you applied to Stirling Council for assistance on 19 August 1998, you were advised of the Council's policy in relation to the rehousing of homeless applicants. You were also informed of the areas where you would be considered for rehousing. This was also confirmed in the Council's decision letter of 12 October 1998.

Whilst I appreciate that you wish to be rehoused in the West Rural area, I must point out that these are areas (sic) where the availability of Council housing is extremely low. Accordingly, and having considered all the circumstances surrounding your application, I do not consider that it is unreasonable to have offered housing outwith these areas. As a result, I must refuse your appeal and advise you that the offer of a tenancy at 49h Cultenhove Road will stand."

After the second review, the letter of 7 December, which expresses the decision that the petitioner seeks to bring under review in this process, was in inter alia the following terms:

"I have meantime reviewed the decision on your previous appeal to take account of the information supplied in your latest letter and all of the representations made previously.

I would again advise you that in the case of a homeless applicant, the Council cannot guarantee that allocations will be made within specific areas of choice. This is because of the very low availability of Council housing throughout the Stirling area which is a particular problem in rural areas. It is for this reason that the Council often has to offer accommodation outwith an applicant's area(s) of choice. Unfortunately, the Council is very often unable to meet the aspirations of individual homeless applicants in relation to areas of rehousing.

Having considered all the circumstances surrounding your application, I do not consider that it is unreasonable to have offered accommodation in the Stirling area and accordingly I must refuse your appeal and reoffer the property to you."

The Respondents' Policy

[10] It is difficult to summarise briefly the respondents' position as to the terms of their policy relevant to the allocation of housing to homeless applicants. Two policy documents were produced, namely (1) a Housing Allocations Policy dated 1 December 1993 and (2) a Decision Paper dated 10 March 1993, which the respondents aver was approved at a meeting (of the Housing Committee of their predecessors, Stirling District Council) on 8 April 1993. The precise relationship between the two documents remains obscure, since it is not clear why the terms of the Decision Paper, if adopted in April 1993, were not incorporated in the Housing Allocations Policy, when it was published some eight months later. The respondents admit, in Answer 2 (as adjusted), that:

"the respondent's policy in relation to offers of housing to persons who are homeless does not feature in the published Housing Allocations Policy dated 1 December 1993."

It was also accepted that two particular features of the Housing Allocations Policy, namely (i) the ability of the applicant to choose up to six allocation areas (Section 4, page 13), and (ii) the ranking of applicants according to a points system (Section 5, pages 18-26), did not apply in the case of a homeless applicant.

In Answer 6 (as adjusted) the respondents aver that:

"The Housing Allocations Policy is intended to regulate allocations for applicants on the mainstream list. By virtue of their acute housing need, homeless applicants living in temporary accommodation must be treated differently from mainstream applicants. ... Accordingly, the de facto policy set out in paragraph 8 hereof has been developed and adopted in relation to homeless applicants."

In Answer 8[A] (as adjusted) they aver that:

"The respondent's de facto policy in relation inter alia to homeless persons is constituted by the [Housing Allocations] Policy, the Decision Paper ... and practices developed in the light of experience."

[11] Notwithstanding the averments which I have quoted from the Answers, the Housing Allocations Policy does make some passing reference to the housing of homeless persons. It sets out among its "Aims" in Section 1 at page 4 the following:

"The Allocations Policy seeks to achieve a socially balanced, settled community. This means actively avoiding the concentration of disadvantaged people or transient tenants in one area. The Council aims to avoid continual use of certain areas for temporary lets, homeless person allocations and the housing of particularly vulnerable individuals."

Section 4: General, at page 12, contains the following passage:

"Stirling District Council [the respondents' predecessors as housing authority, by whom the document was originally adopted] operates a unified housing list. This means that there is a single list for waiting, transfer and homeless applicants for each house size in every allocation area.

When a house becomes vacant it will be offered to the person who has the highest number of points and who is asking for that type of house in that area. Exceptions to this policy would be where an applicant had been accepted as a priority in accordance with the Homeless Persons legislation or the vacant property was ground floor ..."

At page 16 it is stated:

"Applicants who refuse offers made under the Homeless Persons Act will be made non active on the ordinary housing list for six months from the date they refuse the offer and will no longer be considered in 'priority need'."

Apart from these passing references, the Housing Allocations Policy is silent as to how homeless applicants are to be dealt with. The Decision Paper of 10 March 1993 contains in paragraph 15 of Appendix 1 and in Appendix 2 some proposals for adjustment of the local connection areas for homeless applicants, but is otherwise silent on homeless applicants.

[12] In Answer 8[A] (as adjusted) the respondents set out their position as follows:

"The respondent's policy provides a mechanism for allocation of properties in a fair manner, taking into account a number of variables, including quantity of housing of particular sizes and types which is available, the demand for housing, the needs of applicants for housing who are not homeless ("mainstream applicants") and the needs of homeless applicants, such as the petitioner. The policy has to take account of other policy imperatives such as education and social services and medical provision, the need to match house type with need, and other factors such as family size, and family/social or employment connections to specific areas. The [Housing Allocations] Policy primarily caters for applicants of (sic) housing who have a general need for a council property or who seek a transfer to an alternative council property. These two groups together make up the mainstream list. Applicants for housing on the mainstream list are awarded points relating to a number of different criteria. ... If a house becomes available for re-letting ('void') and there is no homeless applicant who qualifies to be considered for it under the 'one for one' policy hereinafter referred to, it will be allocated to the person at the top of the mainstream list. The applicant at the top of the list will be the person with most points. The points based system combines flexibility and fairness. The availability of houses for allocation is entirely dependent on the rate at which properties become void. There is an acute shortage of Council Housing in rural areas. Voids may occur only rarely. If applicants wish to be considered for housing only in a specific area, they may be on the waiting list for many years. ... In addition to dealing with mainstream applications, the respondents must cater for homeless applicants such as the petitioner. In order to do so, they operate a unified housing list. ... The Housing List is unified by integrating mainstream applications and homeless applications at the point at which allocations are made. ... Accordingly, homeless applicants may be permitted a short period on the list for their 'ward of connection'. In determining whether a homeless person is permitted on to the list for an area other than Cornton or Cultenhove, the respondents will primarily look at whether the applicant has lived or does live in the area permanently (colloquially referred to as a 'residence connection'). The respondent also takes account of other factors such as whether the area has a reasonable turnover; whether the applicant has some other acute social, educational or medical need to be housed in that area or whether the applicant is employed in the area. Thereafter they are placed on the list for a wider area. If a homeless applicant does not qualify for admission to the list for a particular area, then the overriding imperative is to provide permanent housing of sufficient size. Therefore, such applicants are considered for allocation only in areas of high turnover. The said practice, of allocating these applicants to areas of high turnover, has been implemented by the respondents since prior to local government reorganisation in 1994. The said practice has not been codified by the respondents and they do not have a record of precisely when it was adopted. Accordingly, the unified policy as between mainstream applicants and homeless applicants operates in the following way. If a property becomes void, the applicants for that area on both the mainstream and homeless lists are identified. If the immediate preceding allocation in that area was to an applicant from the homeless list, then the allocation on the present occasion will be from the mainstream list and vice versa. If it is the 'turn' of a homeless applicant to be allocated a property, then the homeless applicant who has been on the list longest will receive the allocation. If the allocation is to be from the mainstream li

The Issues

[13] The issues that are focused in the petition are (first) whether the respondents' decision was made in pursuance of a policy or practice which was itself unreasonable and unlawful, (secondly) whether the decision was in any event unreasonable in its failure to have regard to the special circumstances of the petitioner and her family, and (thirdly) whether in any event the respondents failed to give proper and adequate reasons for their decision. Although as the parties' submissions were developed in the course of the hearing that scheme was not wholly adhered to, it is in my view convenient to consider the issues raised in the petition under those broad headings.

(1) The Validity of the Respondents' Policy

(a) The Petitioner's Submissions

[14] In the petition it is averred that the policy that the respondents followed was to offer to a homeless applicant accommodation only in areas of "hard to let housing stock". The respondents dispute the applicability of the description "areas of hard to let housing stock" to Cornton or Cultenhove, point out that the term which they use is "areas of high turnover", and produce allocation statistics to show that that term is relative. It seems to me that nothing turns on that dispute about the proper description of the areas in question. The petitioner's point is concerned with her perception that there is a policy by reference to which only the two named areas were considered by the respondents in finding accommodation to offer to her.

[15] As the petitioner's attack on the validity of the respondents' policy was developed by Mr Sutherland in the course of his submissions, it comprised several aspects. In the first place, he submitted that there was in reality no policy properly so called, because there was no written formulation of it that could be said to have been the subject of a decision by the respondents to adopt it. The sort of process that one might expect to be followed would be either the formal adoption of a written document, such as the Housing Allocations Policy of December 1993, or at least a formal council or committee decision such as appeared to have been taken in relation to the Decision Paper of 10 March 1993. There was, however, nothing of the sort in relation to the policy of confining allocations of accommodation to homeless applicants to Cornton and Cultenhove. There was thus nothing to show that the respondents' officials had a proper mandate from the respondents to apply that policy. The allocation of housing to homeless persons was an important aspect of an important function of the respondents, and one which deserved to be addressed by the council or a committee with appropriate delegated authority. The respondents themselves were constrained to describe their approach as a "de facto policy" based on "practices developed in the light of experience".

[16] Mr Sutherland's second point was that the de facto policy was invalid for want of publication in terms of section 21(1)(a) of the 1987 Act (see paragraph [4] above). In that connection he cited Lennon v Hamilton District Council 1990 SCLR 514, and Pirie v City of Aberdeen District Council 1993 SLT 1155. Although the latter case was concerned with the validity of a decision rather than a policy or practice, it nevertheless, he submitted, supported the view that an unpublished practice could not constitute a valid policy. Reference was made in particular to the following passage from the opinion of Lord Cullen (at 1157I-K):

"The critical question is whether the guide should be understood as giving an exhaustive indication of the type of cases in which an application for inclusion in the housing list would not normally be accepted. If an application was refused for a reason which was not within the rules indicated in the guide, the respondents would be in breach of their duty under the statute and the resulting decision would be invalid. ... Counsel for the petitioner was in my view correct when he submitted that the rules made by the local authority and hence those published and summarised in accordance with section 21 are the whole rules by reference to which a particular application is to be decided. I do not regard the terms of the guide as giving any indication that the unsatisfactory conduct of a previous tenancy by any person other than the applicant would entail that the applicant would not normally be accepted. There is no doubt that it would have been practicable for the respondents to make and publish a rule to this effect if that had been desired. In these circumstances I am of opinion that the second reason for the refusal of the petitioner's application was invalid in respect that it was not within the rules made and published by the respondents as the rules governing the admission of applicants to their housing list."

A policy which was not reflected in rules made and published under section 21(1)(a) was not, Mr Sutherland submitted, a valid policy by reference to which the respondents were entitled to make allocations of accommodation to homeless persons.

[17] Mr Sutherland's third submission was that the respondents' de facto policy, taking it to be as they averred it was, was too rigidly formulated and hence operated as an unlawful fetter on the respondents' discretion. For the purpose of this submission, Mr Sutherland took the policy to be that in the absence of a "residence connection" only allocations in Cornton or Cultenhove would be considered, unless there were "special circumstances", ordinarily in the form of "acute medical, social or educational need". It was, in effect, the narrowness of the "special circumstances" exception that he submitted involved excessive rigidity. He pointed to a passage in the Scottish Office "Code of Guidance on Homelessness" (to which the respondents were obliged by virtue of section 37(1) of the 1987 Act to have regard) which stated (at page 54, § 10.24):

"These reasonable preference requirements do not prevent priority being given to other groups of applicants besides those listed in section 20, and local authorities still have to consider applications from homeless or other people on their individual merits".

In support of the proposition that the policy was unduly rigid, Mr Sutherland cited four cases, namely R v Sacupima ex parte London Borough of Newham (Dyson J, 26 November 1999, unreported), R v Gateshead Metopolitan Borough Council ex parte Lauder (1996) 29 HLR 360, R v London Borough of Islington ex parte Reilly (1998) 31 HLR 651, and R v Westminster London Borough Council ex parte Al-Khorsan (The Times, 21 January 2000). Those cases were all concerned with aspects of the English legislation equivalent to the 1987 Act. From the judgment of Dyson J in Sacupima Mr Sutherland cited and relied on the following passage:

"I accept that it is legitimate for an authority to have a policy to assist it in deciding what accommodation is suitable for which class of applicant. Indeed, that is not only entirely sensible, but it would probably be impossible to deal with these applications on an entirely ad hoc basis without the framework of guidelines and stated criteria. But the policy must not be so rigid or so narrow (whether driven by financial constraints or otherwise) that it prevents a proper consideration of the needs of an applicant, and obstructs a reasonable approach to the question of what accommodation is suitable to meet those needs."

Mr Sutherland's submission was that the respondents' policy, as formulated in their Answers, prevented proper consideration of the merits of individual applications in two ways. In the first place, it set too high a threshold in allowing consideration of individual circumstances only when those amounted to "acute medical, social or educational need" or the like. In the second place, it failed to address the possibility that an applicant might have more than one statutory ground for reasonable preference (c.f. Al-Khorsan) or more than one basis for claiming special circumstances (c.f. Reilly - "multiple categories of need").

[18] Fourthly, Mr Sutherland submitted that the policy discriminated unlawfully against homeless applicants who were not originally resident in the respondents' area. There were, as I understood the submission, two separate aspects of it. One turned on section 20(2)(a)(i) of the 1987 Act which provides that in allocating housing a local authority shall take no account of the length of time for which an applicant has resided in its area. The submission was that in treating the petitioner differently because she had no residence connection with an area other than Cornton or Cultenhove, the respondents' policy contravened that provision. The second aspect of the submission turned on section 19 of the 1987 Act. Section 19(2)(e) provides that where an applicant has special social or medical reasons for requiring to be housed in an authority's area, admission to the housing list is not to depend on the applicant being resident in the area. Section 19(3) provides that where an authority's rules made under section 21(1) give priority to applicants, those rules are to be applied to an applicant to whom subsection (2) applies no less favourably than to a transfer applicant with similar housing needs. The submission was that because the petitioner fell within section 19(2)(e), she was entitled to be treated no less favourably than a transfer applicant with similar housing needs. The rule confining homeless applicants with no residence connection to Cornton and Cultenhove amounted to treating such applicants less favourably than transfer tenants.

[19] Finally, Mr Sutherland drew attention to certain respects in which, in his submission, the respondents' de facto policy was inconsistent with itself, if it was taken to comprise both the Housing Allocations Policy and the practice set out in Answer 8[A]. He mentioned two matters in particular. First, although the Housing Allocations Policy, at Section 4, page 12, asserted that there was a unified housing list, incorporating in a single list waiting, transfer and homeless applicants, that was not what was described in Answer 8[A]. Secondly, the practice of considering homeless applicants who had no "residence connection" with another area only for Cornton and Cultenhove flew in the face of the aim of "actively avoiding the concentration of disadvantaged people ... in one area", and the aim "to avoid continual use of certain areas for ... homeless person allocations" (Housing Allocations Policy, Section 1, page 4).

(b) The Respondents' Submissions

[20] Mr McGowan for the respondents began his reply to Mr Sutherland's submissions by advancing the general proposition that when considering the respondents' housing allocation policy it was necessary to bear in mind that the 1987 Act created two separate codes. The first, contained in sections 17 to 21 in Part I of the Act, was concerned with the management and allocation of local authority houses. The second, contained in Part II, was concerned with homeless persons. In that statutory context, the respondents' Housing Allocations Policy of December 1993 was to be seen as concerned with the first of those two codes. Just as Part I of the Act contained cross-references to Part II, the Housing Allocations Policy contained cross-references to homeless applicants, but as a document it was essentially concerned with matters arising out of Part I of the Act. Section 21 of the Act does not specify the level of detail which requires to be set out in the rules made and published under it, or what content they require to have. In the second paragraph of Section 4 of the Housing Allocations Policy (page 12) it was acknowledged that an exception would be made where an applicant had been accepted as a priority in accordance with the homeless persons legislation. That was a sufficient recognition, in the rules made under Part I of the Act, of the obligation under section 20(1)(b) to accord reasonable preference to homeless persons.

[21] The passage which I have quoted (at paragraph [16] above) from the opinion of Lord Cullen in Pirie did not, Mr McGowan submitted, support the proposition that the respondents' de facto policy relating to allocation of housing to homeless applicants was invalid because it was not set out in detail in rules made under section 21. The passage was, in the first place, obiter. Secondly, it was distinguishable (a) because it was concerned with a case of refusal to admit an applicant to the housing list for a reason not mentioned in the rules, rather than with a matter of allocation to a person who was on the list, and (b) because in it there was no mention of the ground for refusal of admission in the rules, whereas here the rules (i.e. the Housing Allocations Policy) expressly recognised that homeless applicants would be treated differently.

[22] Even if, contrary to the respondents' primary submission, there had been a breach of section 21, Mr McGowan submitted that that had no effect on the validity of the application of the de facto policy to the petitioner. The purpose of the requirement that the authority make and publish rules was to ensure that applicants were aware of what the relevant policy was and how it would be applied. In the present case it was clear that the petitioner was informed at the outset that, if she was made an offer of accommodation, it would be in an area of high turnover of housing stock.

[23] The absence of formal adoption of the de facto policy did not, Mr McGowan submitted, automatically invalidate it. It was legitimate for officers of the authority to be left to exercise a discretion. At any given time, he suggested, a council might operate partly on the basis of formally drafted and adopted policies and rules, partly on the basis of practices, written and unwritten, and partly on the basis of discretion. It was clear that the essentials of the de facto policy outlined in Answer 8[A] were known to and acknowledged by the respondents through their Housing Committee. The mere absence of formal approval did not afford sufficient ground for a challenge to the validity of that policy.

[24] So far as the attack on the de facto policy as unduly rigid was concerned, Mr McGowan submitted that it was clear from the Answers that it had not been operated unduly rigidly in the present case. The formulation of the policy had to be examined in light of the acute shortage of local authority housing in the rural parts of the respondents' area. In that context it was reasonable to have a prima facie rule that applicants with no residence connection should be allocated accommodation in those areas in which there was the greatest turn-over of accommodation. Rigidity was avoided by permitting special circumstances to be taken into account. If the prima facie rule was not to be rendered worthless, a certain threshold level of speciality required to be set, below which individual circumstances would be insufficient to displace it. In the present case, however, it was clear that the terms in which the policy was formulated had not prevented consideration being given to the circumstances on which the petitioner sought to rely in her appeals. Thus neither in its terms nor in its practical application was the respondents' de facto policy vulnerable to the charge that it was so rigid as to fetter the proper exercise of discretion.

[25] In reply to the charge of unlawful discrimination in contravention of section 19, Mr McGowan submitted that the provisions were concerned to prevent discrimination against certain categories of mainstream applicants who were not at the date of their application for admission to the housing list resident in the area of the local authority. They were not concerned with homeless applicants. In relation to the petitioner's argument under section 20(2)(a)(i), Mr McGowan accepted that the respondents did distinguish between those homeless applicants who had a residence connection with a particular housing allocation area and those who did not, but that did not constitute a contravention of the prohibition of reliance on length of time of residence in the authority's area. It was the fact of residence connection with a particular housing allocation area rather than the length of residence in the respondents' area as a whole that was taken into account. Residence in temporary accommodation allocated under section 29 was not treated as being of such a nature as to give rise to a residence connection.

[26] There was, Mr McGowan submitted, no real conflict between the aim stated in the Housing Allocations Policy of avoiding continual use of certain areas for homeless persons allocations and the de facto policy of confining allocations to homeless applicants with no residence connection to Cornton and Cultenhove. The category of homeless applicants with no residence connection was small in both absolute and proportionate terms. The policy thus did not in fact produce an undesirable concentration of homeless allocations in those two areas.

(c) Discussion

[27] I am not persuaded that I should hold that the respondents' de facto policy, as explained in Answer 8[A], is invalid for want of formal adoption by the respondents. There is, in my view, considerable force in Mr Sutherland's submission that in a matter as important as the policy for implementation of the respondents' statutory duties towards homeless persons it would normally be expected that the policy would be formulated, in writing, with some care and adopted by formal decision either of the council or of the appropriate committee exercising delegated powers. Given that the respondents' position, as expressed in Answer 8[A], is that they do indeed have a policy for the handling of applications for accommodation made by homeless persons, and that the allocation that was made in the petitioner's favour was made in pursuance of that policy, Mr McGowan's submission to the effect that the absence of formal adoption merely reflected the legitimate scope for the exercise of discretion by officials seems to me to be aside from the point. It is not the respondents' position, as I understand it, that the policy of allocating homeless applicants with no residence connection accommodation in Cornton or Cultenhove only is an exercise of discretion on the part of officials. I take the respondents' position to be as set out in the following averments in Answer 8[A]:

"The said practice, of allocating these applicants [i.e. homeless applicants with no residence connection] to areas of high turnover, has been implemented by the respondents since prior to local government re-organisation in 1994. The said practice has not been codified by the respondent and they do not have a record of precisely when it was adopted."

There is obvious scope for misunderstanding and inconsistency of application where a policy has not been formulated in writing and formally adopted, but long consistent practice can, in my view, evidence the existence of a policy. In the circumstances, standing the averments which I have just quoted, it would not in my view be sound to hold that the respondents do not have the policy that they aver that they have.

[28] There is, however, in my opinion, more force in the submission that the de facto policy is invalid on the ground that it has not been expressed in rules made and published in accordance with section 21. The respondents' duty in terms of section 21(1) is inter alia to make and publish rules governing the priority of allocation of houses. Given that in terms of section 20(1)(b) they are obliged to secure, in relation to all houses held by them for housing purposes, that in the selection of their tenants a reasonable preference is given to homeless persons, it seems to me to be clear that rules governing the priority of allocation of houses must address inter alia the giving of reasonable preference to homeless persons in the selection of tenants for their housing stock. It is not enough, in my view, for the respondents to make and publish detailed rules for the allocation of housing to mainstream applicants with a mere passing acknowledgement of the need to make an (undefined) exception in favour of homeless applicants. That is, in effect, all that the written Housing Allocations Policy does. I do not consider that Mr McGowan was correct, at least as a matter of emphasis, in his submission that the 1987 Act created two separate codes, one dealing with housing management and allocation and the other with homeless persons. Section 20(1)(b) constitutes, in my view, an unavoidable link between the two Parts of the 1987 Act. It is therefore impossible, in my view, to draw up a complete set of rules for priority in housing allocation without dealing with the way in which applications by homeless persons will be dealt with. Proper section 21 rules, in my opinion, require not merely to acknowledge the need for exceptional treatment of homeless applicants, but to set out, in the same level of detail as is provided in relation to mainstream applications, both (i) the respects in which the rules applicable to mainstream applicants will not be applied to homeless applicants and (ii) how the latter category of applicants will in fact be dealt with. The practical need for that level of detail is disclosed by the fact that the respondents set out in their Answers the detail of how the allocation of accommodation to homeless applicants is addressed. If such a detailed policy exists, it ought in my view to be expressed in rules published in accordance with section 21. In my view, therefore, the fact that the detailed rules for the allocation of housing to homeless applicants that are set out in the de facto policy explained in the respondents' averments were not formulated as rules and published in the way required by section 21 places the respondents in breach of the duty which section 21 lays on them.

[29] The question which then arises is what the consequence of that failure is, so far as the present proceedings are concerned. In Pirie Lord Cullen held that the rules made and published in accordance with section 21 were the only rules by reference to which an application might lawfully be decided. That in my view implies not only that a decision made on grounds not provided for in the rules is an invalid decision, but also that any rule which the council attempts to apply without having published it in accordance with section 21 is an invalid rule. One purpose of section 21 must, it seems to me, be to ensure that decisions made by the housing authority on the matters specified in subsection (1)(a)(i) and (ii) are made in accordance with rules of which applicants may make themselves aware in advance. (The matter is possibly somewhat complicated by the requirement for re-publication within six months of any alteration, but I do not consider that anything turns on that speciality in the present case, since there is no suggestion that the rules on which the respondents purported to rely were only unpublished because they had been adopted in altered form less than six months before the decision.) It would in my view be destructive of the value of the requirement for publication, if an unpublished rule or a decision based on an unpublished rule were nevertheless treated as valid. As in Pirie, it would in the present case have been perfectly practicable for the respondents to have formulated and published the rules which they have set out in their pleadings and described as a de facto policy. The consequence of their failure to do so, in my opinion, is that their de facto policy, in so far as it purports (a) to render inapplicable to homeless applicants provisions of the Housing Allocations Policy and (b) to apply special rules to such applications, is invalid, and any decision made in reliance on the unpublished elements of the de facto policy is likewise invalid.

[30] Since one purpose of publication under section 21 is, in my view, to ensure that applicants have the means of knowing in advance the criteria by which their applications will be determined, there might at first sight be thought to be some force in the submission that if the petitioner was in fact made aware at the time of making her application what the rules were by which her application would be determined, the failure to publish under section 21 would not invalidate the decision. The petitioner's averment, the main substance of which the respondents admit, is in these terms:

"At the time of making the application the petitioner was advised that in terms of the respondents' policy for permanent housing of such [i.e. homeless] applicants, if she were to be made an offer of permanent housing then this would only be in an area where there was a high turnover of housing stock."

It seems to me that, while that may have told the petitioner what the effect of the application of the respondents' policy to her case would be, it did not tell her all that a published version of the policy would have told her. While it is not for me to draft the rules that the respondents ought to have published under section 21 to reflect their de facto policy as averred in their Answers, it seems to me that the main points that would have been drawn to the petitioner's attention by published rules would have included -

  1. that unlike mainstream applicants, homeless applicants were not allowed to choose up to six allocation areas;
  2. that if she could establish a residence connection with a housing allocation area, she would be permitted for a short period (the length of which is not made clear in the respondents' averments) to be on the housing list for that area;
  3. that being in temporary accommodation in a particular housing allocation area would not be regarded as establishing a residence connection with it;
  4. that if she had no residence connection with a particular housing allocation area, she would be considered only for allocation in areas of high housing turnover (it is not clear whether a published policy would have identified which these were; it is scarcely something the applicant could be assumed to be able to work out for herself);
  5. that as and when accommodation of a suitable size became available, it would be allocated to a mainstream or homeless applicant according to the "one for one" policy; and
  6. that there was scope for departure from these rules in special circumstances, such as acute medical, social or educational need particular to the applicant.

It might be argued that, when the petitioner was told that any allocation to her would be in an area of high turnover, she was told all that she needed to know about points (i) to (v), and that in the event the course of the petitioner's appeals shows that she was not dissuaded by lack of knowledge of point (vi) from urging the respondents to take into account her individual circumstances. I am not persuaded, however, that these considerations can be relied on by the respondents to overcome the effect of their failure to do as section 21 required of them. Although I have identified as one of the purposes of section 21 the provision to an applicant of the means of knowledge of the criteria by which his or her application will be determined, the purposes of the section are in my view broader than that. It is also, it seems to me, designed to promote consistency of decision and fairness among applicants, by providing published criteria by which all applications are to be determined. A brief indication to an individual applicant that the application of policy, the detail of which is neither published nor explained to her, does not seem to me to be adequate to serve those other purposes. In the whole circumstances, I am not persuaded that the fact that the petitioner was told at the outset that in terms of the respondents' policy any accommodation offered to her would be in an area of high turnover is sufficient to elide the consequence of invalidity that would otherwise flow from the respondents' failure to publish the rules for allocation of housing to homeless applicants.

[31] I am not persuaded that the de facto policy was unduly rigid. With the exception of the second part of the last sentence (which deals with the issue of the suitability of the accommodation, which is expressly addressed in the English legislation in a way in which it is not in the 1987 Act), I accept the points made by Dyson J in the passage from his judgment in Sacupima which I have quoted above (at paragraph [17]). I also accept that a policy which in its terms prevented an authority from taking into account along with homelessness any other statutory ground for preference that applied to an applicant, or which precluded the aggregation of multiple factors in an applicant's favour, would be open to challenge on the ground of undue rigidity (see, for example, Al-Khorsan and Reilly respectively). I do not consider, however, that the respondents' de facto policy can be said to fail those tests. The first element of the policy that Mr Sutherland attacked was the reference to "acute medical, social or educational need". The word "acute" is no doubt open to construction, but I do not consider that it would be fair to construe it too narrowly. It seems to me to be intended to require something unusual, justifying the making of a distinction between the individual applicant and the typical homeless applicant. It is, however, inevitably a matter of degree. When it is borne in mind that the exception is open for consideration when there are "special circumstances" and that the reference to "acute medical, social or educational need" is by way of illustration of what would "ordinarily" constitute special circumstances, I am of opinion that it cannot be said that the policy is in that respect too rigidly framed. The second criticism was that the policy did not address the possibility of there being multiple grounds for preference or multiple categories of need. In the context of a "special circumstances" exception, however, I consider that the question is not whether the policy addresses the possibility of there being multiple relevant factors, but whether it inhibits the proper consideration of multiple or cumulative factors. I do not consider that it can be said to do that.

[32] I am not persuaded that the de facto policy involves discrimination which is prohibited by sections 19 or 20 of the 1987 Act. So far as section 19 is concerned, there is no question of contravention of sub-section (2)(e). The petitioner was admitted to the housing list despite not being resident in the respondents' area, although it seems to me that her route onto the list was as a homeless person, rather than as an applicant to whom subsection (2)(e) applied. The argument turns rather on subsection (3). It seems to me that the purpose of that subsection is to ensure that the effect of subsection (2) in securing the admission to the housing list of various categories of non-resident applicants is not then undermined by section 21 rules which discriminate against such applicants in favour of transfer applicants. I do not consider that the effect of subsection (3) is to compel the authority to treat a homeless applicant who happens to come within one of the categories mentioned in subsection (2) as if he or she were in the same position as a transfer applicant with similar housing needs. So far as section 20(2)(a)(i) is concerned, there is in my view no contravention in the circumstances of this case. In my opinion the distinction made between homeless applicants with a residence connection with a particular housing allocation area and those with no such connection does not amount to taking into account the length of time the applicants have resided in the respondents' area as a whole.

[33] I do not consider that Mr Sutherland's submissions about internal inconsistencies in the respondents' de facto policy (if it is taken, as the respondents aver that it should be taken, to incorporate both the Housing Allocations Policy of December 1993 and the components mentioned only in Answer 8[A]) constitute ground for attack on the validity of the policy. His first point was that the Housing Allocations Policy referred to a unified housing list, whereas that was not what was described in the Answers. It seems to me that the problem lies not in a discrepancy between the Housing Allocations Policy and the averments (since the respondents aver in Answer 8[A] that "they operate a unified housing list"), but in what the respondents mean, both in the Housing Allocations Policy and in their averments, by a unified housing list. I do not think that all that is meant is that homeless applicants are also placed on the mainstream list, although I understand that that is done. The respondents' averments put the matter thus:

"The Housing List is unified by integrating mainstream applications and homeless applications at the point at which allocations are made."

If that is what is meant by a "unified housing list" it seems to me to be a somewhat strained use of the expression. Be that as it may, however, I do not consider that Mr Sutherland's charge of inconsistency is made out. The second point, that the concentration of homeless applicants with no residence connection in Cornton and Cultenhove flies in the face of the declared aim of avoiding continual use of certain areas for homeless person allocations, seems to me to be sound as a matter of observation, although Mr McGowan pointed to statistics that suggested that the numbers involved were not significant. Be that as it may, however, I do not consider that the fact that the respondents' policy fails in an identified respect to adhere to one of its own declared aims has any effect on its validity.

  1. The Adequacy of the Stated Reasons
  1. The Parties' Submissions

[34] Mr Sutherland accepted that the respondents were not under a statutory duty to give reasons for their decision on the allocation of accommodation. Under section 30(4) there is a duty to give reasons for an adverse decision on whether an applicant is homeless (and on the related issues of priority need, intentional homelessness and notification of another authority), but there is no equivalent duty at the stage of allocation. He did not argue that there was at common law a duty to give reasons. His submission was that where there is no statutory duty to give reasons, but reasons are in fact given and are defective, it is open to the court to reduce the decision in the same way as if there had been a duty to give reasons. As authority for that proposition Mr Sutherland cited Elmbridge Borough Council v Secretary of State for the Environment (1980) 39 P & CR 548. That was a statutory appeal to the court under section 245 of the Town and Country Planning Act 1971, but that is of no moment; Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 was also a statutory appeal. Mr Sutherland founded in particular on the following passage from the judgment of Bristow J (at 546-7):

"In my judgment, if, as here, the decision-maker who is not under a statutory obligation to give reasons in fact gives reasons and the reasons that he gives are defective, it is equally open to this court to interfere under section 245(4). The principle is this. The parties to the appeal, where reasons are given, must be able to see from the reasons themselves whether the decision has been reached according to law. If they can see that it has not been, for example, because the decision-maker has clearly misdirected himself on the evidence, they can challenge the decision in this court under section 245(4). If the reasons are so expressed as to be unintelligible, the parties cannot tell whether the decision has been reached according to law. The evil is the same as if no reasons have been given when the statute requires that they should be given, and the defect in the expression of the reasons is as much an error of law as would be a failure to give them."

In response to my inquiry whether there was any Scottish authority that went as far as that, Mr Sutherland cited Asda Stores Ltd v Secretary of State for Scotland 1997 SLT 1286 (see also 1999 SLT 503 (IH)), in which Lord Nimmo Smith said (at 1298C):

"I accept that in giving his decision under section 32 [of the Town and Country Planning (Scotland) Act 1972] the Secretary of State is not obliged to state his reasons, although, if he chooses to do so, they may be subjected to scrutiny."

Mr Sutherland's submission was that the decision should be reduced if the reasons given by the respondents in their letter of 7 December 1998 failed the test formulated by Lord President Emslie in Wordie Property at 348:

"The decision must ... leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."

The letter of 7 December, Mr Sutherland submitted did not explain properly why, despite the factors relied on by the petitioner, namely (i) her father's need for her assistance, (ii) her and her children's need for support from her father and sister, (iii) the need to avoid further disruption of her children's education, and (iv) her employment, no departure from the policy of offering accommodation only in areas of high turnover was justified.

[35] Mr McGowan submitted that where there was no statutory obligation to give reasons, but reasons were given, mere inadequacy of the reasons given, which did not disclose a substantive flaw in the decision, would not justify reduction. He drew attention to what was said about the duty to give reasons in Singh v Secretary of State for the Home Department 2000 SLT 243:

"The basic duty will be satisfied if reasons given by the decision maker come within the ambit of what was said in Wordie Property Co Ltd. The extent and adequacy of the reasons which are set out is bound to vary according to the circumstances... Much will depend on the nature of the tribunal and any rules under which it is required to work, the scope of the issues which may be raised, the amount of evidential material involved and whether the decision is an administrative or judicial one."

In the present case it could not be said that the decision disclosed that the respondents had misdirected themselves or reached a conclusion which no reasonable authority could have reached on the material before it. That being so, any inadequacy of expression of the decision did not afford ground for reduction.

(b) Discussion

[36] I agree with what Lord Nimmo Smith said in Asda Stores, namely that if reasons are given for a decision when there is no obligation to give them, they may nevertheless be subjected to scrutiny. The purpose of such scrutiny, in my opinion, is to see whether the reasons expressed disclose a flaw in the decision. Thus, if voluntarily given reasons disclose that the decision maker misdirected himself as to the nature of the decision entrusted to him, or took into account irrelevant material, or ignored relevant material, or reached a conclusion which no reasonable decision maker properly directing himself could have reached on the material before him, the decision will be open to challenge on the ground discovered by scrutinising the reasons. But in that event it is the flaw in the decision disclosed by the reasons that is the ground for reduction, not the inadequacy of the reasons. In my opinion it is only where the decision maker is under a duty, under statute or at common law, to give reasons for his decision that his reasons must comply with the Wordie Property test, and failure to give reasons which pass that test will constitute ground for setting aside the decision. Provided such reasons as he gives do not disclose that the decision itself is flawed, a decision maker who need not give reasons does not render his decision liable to be set aside by giving reasons which do not adequately explain his decision. In coming to that conclusion I am, I think, disagreeing with what Bristow J said in Elmbridge Borough Council at 547. I agree with him that if reasons are unintelligible, parties cannot tell whether the decision has been reached according to law. But in that event they are no worse off than if no reasons had been given at all. It does not seem to me to follow, when no reasons are required but unintelligible or inadequately expressed reasons are in fact given, that it should be assumed that the decision itself is flawed. If the voluntarily given reasons disclose that it was, then the decision may be set aside. But if they do not, the position is no different from that which would have obtained if no reasons had been given. In that event, there is in my opinion no ground for setting the decision aside.

[37] Had I thought otherwise on the point discussed in paragraph [36], I would not in the circumstances of this case have regarded the reasons given in the respondents' letter of 7 December 1998 as failing the Wordie Property test. Having regard to the nature of the decision making process, a review of an allocation of accommodation to a homeless person at the request of the applicant, and bearing in mind the dictum from Singh quoted in paragraph [35] above, it seems to me to be adequate for the authority to say that it has considered all the material put before it by the applicant relating to her individual circumstances but is not persuaded that the original allocation was unreasonable. That is in substance what the letter of 7 December 1998 said.

  1. The Validity of the Decision of 7 December 1998

[38] As the debate developed, no separate points were made as to the validity of the decision of 7 December 1998 that had not been advanced either as grounds for holding that the respondent's policy was invalid or in the attack on the adequacy of the reasons given in the letter. The grounds on which it was argued that the decision was invalid can be summarised as follows:

(1) because it was made in pursuance of a policy that had not been formally

adopted by the respondents;

(2) because it was reached by the application of a de facto policy which ought to

have been, but was not, expressed in rules published under section 21 of the 1987 Act;

(3) because it was made in pursuance of an unduly rigid policy which precluded

the proper consideration, individually and in aggregate, of the relevant personal circumstances of the petitioner;

(4) because it involved the application of a policy which discriminated against the

petitioner in ways rendered unlawful by sections 19 and 20 of the 1987 Act;

(5) because it was made in pursuance of a policy which was inconsistent with

itself; and

(6) because the reasons for it were inadequately expressed.

Mr Sutherland did not, in the end, advance a separate argument to the effect that the decision intimated in the letter of 7 December 1998 was unreasonable. He concentrated, rather, on the submission, which I have already discussed, that having regard to the factors relied on by the petitioner, the decision to adhere to the original allocation was one that demanded explanation by way of detailed reasons, which the letter did not afford.

[39] For the reasons which I have already discussed in the context of the attack on the respondents' policy in paragraphs [27], [31], [32], [33], [36] and [37] above, I am not persuaded that grounds (1), (3), (4), (5) and (6) on which the validity of the decision was attacked are well founded. I am, however, satisfied that for the reasons discussed in paragraphs [28], [29] and [30] above the decision was invalid by reason of its having been reached in reliance upon a policy which was not expressed in rules duly published in accordance with the requirements of section 21 of the 1987 Act.

Result

[40] In their Answers the respondents pled (plea-in-law 1) that the petition was barred by mora, taciturnity and acquiescence. In the course of the hearing, Mr McGowan intimated that he did not seek to maintain that plea. It is therefore appropriate that I should repel it.

[41] So far as the decision set out in the letter of 7 December 1998 is concerned, I consider that, in light of the view I have reached that it was invalidated by being based on a policy which was not reflected in rules duly published in accordance with section 21 of the 1987 Act, the appropriate course is to grant decree of reduction of that decision. I do not consider it necessary also to grant decree of declarator that the decision set out in the letter was invalid.

[42] I do not consider it appropriate in the circumstances to grant decree of reduction in respect of the respondents' policy. I take that view largely because there is no document that can be said to contain the policy. The policy on which the respondents sought to rely found its expression only in the respondents' pleadings. A similar difficulty, it seems to me, would attend granting decree of declarator in the form contemplated in statement 3(i) of the petition. It would, however, be unsatisfactory if I did not record formally my finding that the policy on which the respondents relied was invalid for want of expression in rules published in accordance with section 21. I shall therefore find and declare that the respondents are not entitled to take into account, in making any decision as to the allocation of accommodation to the petitioner in implement of their duty under section 31(2) of the Housing (Scotland) Act 1987, any policy considerations not reflected in rules made and published by them in accordance with the requirements of section 21 of that Act.

[43] Mr Sutherland also sought an order upon the respondents to continue to provide accommodation to the petitioner under section 29(1) of the 1987 Act. I do not propose to make an order in such terms. In my view, the letter of 7 December 1998 having been reduced, it remains for the respondents to make a fresh decision as to what accommodation they will allocate to the petitioner in implement of their duty under section 31(2). In the meantime, the petitioner remains, in my view, entitled to temporary accommodation under section 29. I refrain from making an order in the terms sought by Mr Sutherland in the expectation that the respondents, as a responsible local authority, will act appropriately in light of my decision without such a compulsitor.

[44] I shall accordingly -

(1) of consent repel the respondents' first plea-in-law;

(2) sustain that part of the petitioner's fourth plea-in-law relating to the legality of

the decision, and accordingly grant decree of reduction of the decision of the respondents set out in their letter to the petitioner dated 7 December 1998;

(3) grant decree of declarator in the terms set out in the last sentence of paragraph

[42] above;

(4) quoad ultra repel the petitioner's pleas-in-law; and

(5) reserve the question of expenses for future determination.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010