Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 121

 

P1427/15

OPINION OF LORD BANNATYNE

In the cause

LG

Petitioner;

for

Judicial Review of a decision by Stirling Council that the petitioner is intentionally homeless;  for declarator that Stirling Council is under an obligation to provide permanent accommodation for her, and for an order for specific performance that such permanent accommodation be provided

Respondents:

Pursuer:  Lazarowicz; Drummond Miller LLP

Defender:  Stalker; CMS Cameron McKenna LLP

12 August 2016

Introduction
[1]        By this petition for judicial review the petitioner challenges the decision of Stirling Council (“the respondents”) dated 31 August 2015 (“the decision” or “decision letter” as the context requires), in which the respondents upheld their decision of 2 June 2015 determining that the petitioner was intentionally homeless in terms of section 26(1) of the Housing (Scotland) Act 1987 (“the 1987 Act”).

 

Background
[2]        The petitioner ceased to occupy a private let in Stirling (“the property”) which she had occupied from about March 2011 until about September 2015 when decree for recovery of possession was granted.  The petitioner consented to the grant of that decree.  Said let was a short assured tenancy.  It had been continued by tacit relocation on a number of occasions.  The landlords served two notices on the petitioner on 3 March and 15 May.  On 6 May the petitioner applied to the respondents for accommodation;  her broad position was that it was not reasonable for her to continue to occupy the property in that her landlord had failed to meet her obligations in terms of the tenancy agreement and also in respect of her statutory obligations.  These failures are set out in detail in paragraph 7 of the petition.  In particular she argued that over a significant period of time the landlord had failed to remedy material defects in the property.  She advised the respondents that as a result she had withheld rent since about 2014.

[3]        The respondents determined by letter dated 2 June that the petitioner had ceased to occupy the property as a consequence of something she had deliberately done or failed to do, and further that it would have been reasonable for her to continue to occupy the property.

[4]        That the petitioner sought a review of the said decision in terms of a letter dated 19 June 2015 (6/4 of process).

[5]        The material points put forward in said letter in support of the petitioner’s appeal were these:

• “The landlord is clearly in breach of contract, as she has breached clause 7 ‘The landlord will keep the property air and water tight’The roof has continually leaked so is no where watertight, as with the backdoor doesn’t not fit properly into the facings and causes drafts, and with a slight breeze the door opens.Taking the ruling from Edinburgh City Council that no rent is due then similarly in my case whereby the landlord has failed to carry out notable repairs (appendix 1) then no rent is due, therefore it would have not been reasonable for me to continue to occupy, I feel your decision can not be fairly assessed when the notice to quit is used as evidence, as it is yet for the courts to decide whether or not there are rent arrears which are lawful in the first instance, therefore I cannot be assumed that I would be able to continue within the property as the landlord has and continues to fail to carry out any repairs, I have not intentionally forced the landlord to break the law, and have offered the landlord full payment of the rent arrears if the roof repairs are carried out and the necessary guidelines are followed, however as no action has been taken it is therefore the court’s decision.”

   

  …

   

• “I have contacted the landlord or the person acting for the landlord and intimated that I agree to re-pay any amounts owed (appendix 5) which the courts decide is outstanding, as there has been no hearing as yet, I am unable to specify an amount to which will be agreeably paid back as some of the repairs were paid for by myself (appendix 2).I also take reference from the Code of Guidance on Homelessness Chapter 5:”

   

  …

   

• “I have supplied evidence that (see attached appendix) to show that it would not be reasonable to reside in a property which is not fit for the purpose, this also relates to your decision in that you felt it would be reasonable however the evidence provided suggests otherwise.”

   

              …

   

• “The act and guidance confirms ‘A person is considered vulnerable when they are less able to fend for themselves so that they may suffer in a situation where another homeless person would be able to cope without suffering.The above categories detail specific circumstances which may lead to vulnerability’.As already stated I suffer from a mental condition which has proven to be difficult in the past, the threat of homelessness could be the catalyst whereby my mental health deteriates as a result and referencing again:”

   

  …

   

• “… however my reasons were to fix the roof, not provoke any kind of conflict between the landlord and I.and omission being ‘a failure to fulfil a moral legal obligation’, however the landlord by this point had a legal obligation to ensure that the property is maintained and she had failed to do so, despite being notified on several occasions.My reasons for withholding the rent was bone fide so that I may fix the roof myself, as previously I had withheld rent for repairs and the landlord was made aware of this.Once the repairs were completed I began paying rent again and the landlord was quite satisfied in that she made no further communication as to her dissatisfaction on the repairsbeing carried out, so it was to be assumed that the same rules would apply and that a necessary withholding of the rent to have the necessary repairs done, I have kept the rent in a safe place which cannot be used until a court decision has been reached.I had done her a favour and saved her the hassle of achieving quotes and arranging for works to commence.She failed to carry out the necessary landlord safety and Landlord’s responsibilities”

   

  “If you let a property equipped with gas appliances you have three main responsibilities:

   

  ‘•         Maintenance:  pipework, appliances and flues must be maintained in a safe condition.  Gas appliances should be serviced in accordance with the manufacturer’s instructions.  If these are not available it is recommended that they are serviced annually unless advised otherwise by a Gas Safe registered engineer.  (The boiler has never been serviced and as the boiler is at the moment, there is still a hole where the flue is situation, this has not been correctly sealed off, also the reset button on the boiler is broken, so in order to reset it (which is necessary to get the boiler working again) you must stick your hand up behind the control panel and try and reset the button that way. - GAS LEAK WHICH COULD HAVE BEEN RPEVENTABLE.  OUTSIDE FLUE NOT CORRECT BOXED IN AND IS BEING HELD UP BY A COPPER FITTING

   

• Gas safety checks:a 12 monthly gas safety check must be carried out on every gas appliance/flue.A gas safety check will make sure gas fittings and appliances are safe to use (Appendix 6).

   

• Record:a record of the annual gas safety check must be provided to your tenant within 28 days of the check being completed or to new tenants before they move in.Landlords must keep copies of the gas safety record for two years. - TWO LANDLORD SAFETYS HAVE BEEN CARRIED OUT IN 4+ YEARS.’”

  …

   

• “As I do not originate from Stirling until around 8 years ago, I do not know or have a lot of support in the area, or any other for that fact, I do not have any dependable family, here or anywhere else, and the area of […], is all that I know of, and the same for my daughter, she has eventually made friends within this area, which has been difficult in the past, as she suffers from a medical condition which causes some embarrassment to her, so she is not confident enough to make new friends easily, however she has settled in within this area, and as changes to the housing, act, with the introduction of the revised Housing Act 2001, Requiring local authorities to have regard to the best interests of children in exercising their functions.I would be grateful if my daughter’s welfare was considered whilst concluding your decision.

 

The landlord the only one which I am aware of has already broken the law, it is a criminal offence for any landlord not to be registered, and she wasn’t until the initial notice to quit, was issued.  Also no Fire regulations were followed, as the property did not have any smoke alarms, these had to be installed by myself, for fear of my daughters and I safety, also as the front door doesn’t open.  I have been informed by the fire safety team that they would strongly advise the landlord to have the door fixed, as this is a main fire escape route.  I have never received any information as to where my deposit is held, I do not know who or where my money has been put, and strongly disbelief I will see it again.”

 

The respondents by letter of 31 August 2015 maintained their decision that she had deliberately done or failed to do something and had thus ceased to occupy the property and further that it would have been reasonable for her to continue to occupy the property.

[6]        The decision (6/6 of process) extends to some five pages.  So far as material, it notes that the petitioner wished to appeal against the decision of 19 June 2015.  It thereafter apologises for the delay in responding to that decision and gives reasons for that.

[7]        Then the writer of the decision letter sets out correctly the test which had to be applied, namely:

“To be considered intentionally homeless … an applicant must have deliberately done or failed to do something the likely result of which is that he/she will be required to leave their accommodation that was reasonable to occupy.  The appellant must also have been aware of all the relevant facts.”

 

The decision letter thereafter considers first:  the reason the applicant was homeless and says this:

“In relation to the reason you are homeless/threatened with homelessness, this is because your landlord took you to court and was successfully granted decree for recovery of the property on 11 August 2015.  In relation to the reasons why your landlord took this action, I have referred to the Notice to quit dated 15 May 2015 which specifically outlines the grounds for raising proceedings for possession as set out in Schedule 5 of the Housing (Scotland) Act 1988.  The grounds listed are mandatory ground 8, and discretionary grounds 11 & 12.  These grounds all relate to the non-payment of rent and rent arrears.  In addition in the ‘Statement of Claim’ attached to the Summons, paragraph 3 outlines the reason for the action and that this specifically refers to the failure to make payments of rent since June 2013 and failure/delays to make payment.  The continued non-payment of rent was the clear reason that the landlord took you to court.

 

You do not dispute that you had arrears and on a number of occasions you have confirmed that you acted deliberately and withheld rent because you wanted the landlord to take action and carry out specific repairs.  You also say that you wrote to your landlord on 18/10/14 in a letter requesting repairs to be carried out and clearly advising that you would be forced to begin works yourself and deduct the rent from your landlord.  You go on to advise that you will withhold rent payments as a precautionary measure.  I understand that although you received no direct confirmation from your landlord that this agreement was acceptable to them, you assumed in the absence of hearing otherwise that the landlord acquiesced with it.

 

With reference to the court proceedings, my understanding of the position is that there were rent arrears but that your landlord chose not to pursue you for them, and instead chose simply to pursue for the repossession of the property.  The reasons that the case was brought to court all related to rent arrears and because ground 8 is a mandatory ground and it was not contested, the court granted repossession of the property.”

 

The decision letter proceeds to consider the issue of whether the property was reasonable for the petitioner to occupy and states this -

“… I have considered the photographs you have provided and a range of other information available to me.  I have no doubt there have been a number of repairs and maintenance matters which you have been dissatisfied with over the duration of your tenancy, as referred to throughout your appeal letter and in various correspondence with your housing options officer.  I also note that you undertook to have some of the repairs carried out and to pay for some of this work yourself.  There is no evidence to suggest that anyone compelled you to arrange and pay for this work.  I am also aware that an Enforcement Officer inspected the property … on 27 Jan 2015 and reported that dampness was indicated within bedrooms 1 and 2 and as a result you were awarded 15 points on your mainstream housing application.  You have also been offered temporary accommodation and have chosen to remain in the tenancy since you made your homeless application.”

 

The writer of the letter then moves on to consider, as part of the issue of reasonableness to continue to occupy, the question of the medical condition of the petitioner and her child and states this:

“You refer to your daughter and her medical condition and her welfare in relation to the Housing Act 2001 and the requirement for Local Authorities to have regard to the best interests of children in exercising their functions.  I note that in addition to being offered temporary accommodation you were also asked if you wanted to seek medical points for your daughter in relation to her health and that you refused to complete a medical form for her although you did take a medical form to be completed for yourself.  Without external medical confirmation that your and your daughter’s health are suffering due to the condition of the property, I am unable to take medical health matters specifically into account in considering your appeal.”

 

The author of the letter then turned to the 1987 Act, section 26(4) and said as follows:

“I have established that as an applicant on Stirling Council’s housing waiting list, you have been awarded 15 points due to dampness and that this does not in itself mean it would be unreasonable for you to have remained in the tenancy.  Currently I am aware that the greatest demand for Council housing is for one and two bedroom properties and this means that you are one of a number of applicants seeking this size of accommodation from the Council.  I also note that you were offered temporary accommodation and chose to remain in the tenancy since you made your homeless application.”

 

Lastly the writer of the decision letter considered the issue of alternative remedies and said this:

 

“With reference to the final part of the intentionality assessment, I note that you have rented privately before and it is clear you knew about the Private Sector Housing team at the Council and about Citizen’s Advice and Shelter and that you are familiar with the internet and would know how to use it to seek advice.  You said that you could not afford a solicitor, however I do not accept this was the only route open to you when your landlord started legal proceedings.”

 

Having regard to the foregoing the author of the decision letter concluded:

“Taking all of the above into account, I am of the opinion that you have become homeless/threatened with homelessness intentionally in that you were asked to leave the tenancy because you deliberately withheld rent in the full knowledge that this could mean you would be asked to leave your tenancy.  The matters of disrepair and maintenance were not raised in court and you did not seek the appropriate legal routes to resolving these matters correctly.”

 

Between the petitioner’s application for review and the issuing of the decision letter the following occurred:  In August 2015, the landlord’s action for recovery of possession of the property called at Stirling Sheriff Court.  Decree was granted on 11 August.  When the matter called in court the solicitors acting for the landlord advised the sheriff that the landlord no longer wished to seek decree for rent arrears but only wished to be granted decree for recovery of possession.  The sheriff granted decree to the landlord for recovery of possession of the property.  The landlord had sought an order for recovery of possession under section 18 of the Housing (Scotland) Act 1998 (“the 1998 Act”), on grounds 8, 11 and 12 of Schedule 5 to the 1998 Act.  All of these grounds related to non‑payment of rent.  It was under section 18(3) and (4) of the 1998 Act that the court granted decree for recovery of possession on those grounds.  The petitioner consented to that decree.

 

The legislative framework
[8]        For the purposes of the present proceedings the material provisions of the 1987 Act were these:

“26. - Becoming homeless intentionally

 

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

 

(2)        A person becomes threatened with homelessness intentionally if he deliberately does or fails to do anything the likely result of which is that he will be forced to leave accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

 

…

 

(4)        Regard may be had, in determining for the purpose of subsections (1) and (2) whether it would have been reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local authority to whom he applied for accommodation or for assistance in obtaining accommodation.”

 

…

 

37. - Guidance to authorities by the Secretary of State

(1)        In relation to homeless persons and persons threatened with homelessness, a relevant authority shall 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 the course of argument before me reference was made to the Code of Guidance issued by the Secretary of State (“the Code”) generally at chapters 1, 5 and 7 and in particular the court’s attention was directed to the following:  paragraphs 1.1, 1.3, 1.5, 7.4, 7.5, 7.6, 7.7, 7.8 and 7.17.  It was submitted on behalf of the petitioner that 7.17 was of particular significance in the present case and it states the following:

“It should not be assumed automatically that an applicant is intentionally homeless where they have lost their accommodation because of rent or mortgage arrears.  Reasons should be fully explored and decisions made as to whether arrears resulted from deliberate acts or omissions.”

 

Submissions on behalf of the petitioner
[9]        Counsel for the petitioner having examined the foregoing framework submitted that the following principles could be ascertained:

• An applicant’s circumstances must be looked at in a flexible manner.
• A local authority must look behind any decree for an applicant’s eviction.
• A local authority cannot assume that where a decree is granted on the basis of rent arrears that a person was intentionally homeless.
• A local authority should look at any defence put forward to such an action and in particular in the circumstances of the instant case should have regard to the petitioner’s lawful withholding of rent.
• There is a strong inference that a local authority should take a sympathetic view and should be slow to hold a person intentionally homeless.
• A local authority should consider applications in terms of the changes in the code as set out in paragraph 1.3.

Counsel then turned to his detailed submissions.  His starting point was this:  the property had numerous defects, on account of which the petitioner could not reasonably have been required to continue to occupy it.

[10]      In development of this he submitted that in considering the issue of reasonableness to continue to occupy, in the context of defects in the property, not only the inherent nature of the defects but also the following factors should be taken into account:  (a) the length of time that those defects had endured;  (b) the fact that the petitioner had been required to carry out certain repairs herself;  (c) the fact that she had put her landlord on notice that she would have to carry out repairs herself, and retain rent, if the landlord did not carry out repairs;  and (d) the fact that the landlord over an extended period of time had taken no action to deal with the petitioner’s repeated requests that she should deal with these defects.

[11]      The above factors were relevant, in that it was not necessary for the defects to be such as to make the property completely uninhabitable.  Rather where the defects had existed over a period of time that could cause it to become unreasonable to expect a tenant to continue to endure them.  Here the defects had existed over a substantial period of time.  In addition he submitted, in considering whether it was reasonable for the petitioner to continue to occupy, it was appropriate to take into account that the landlord had failed to remedy the defects over many years and was unlikely to do so.  Taking these together the petitioner was entitled to consider that it was not reasonable for her to continue to reside in the property.

[12]      Against that background the question for the court became this:  have the respondents acted beyond their discretion in reaching a view that it was reasonable for the petitioner to have continued to occupy the property.  He submitted that this question should be answered in the affirmative.

[13]      In development of this submission he advanced his argument in terms of a number of discrete chapters, the first chapter advanced was this:  the respondents had failed to properly assess the defects in the property, in that they had not accepted the seriousness of the problems.  They had failed to take into account all the relevant material before them, namely, the evidence which showed the seriousness of the problems.  This was a fundamental flaw in their decision making.  In particular he argued under reference to the Code, paragraph 5.13 that insufficient weight had been given to the duration of the defects resulting in a failure to properly apply the legislation and a failure to take account of relevant material.

[14]      Secondly, it was contended that there had been a failure sufficiently to take into account the personal circumstances of the petitioner, which the respondents were obliged to do (see: R v London Borough of Brent ex p McManus 1993 25 HLR 643 at 648 and the code at  5.2, 5.11 and 7.4).  The argument here was that the defects had lasted for a lengthy period and had had an effect on the petitioner’s mental health.  Thus even if objectively habitable, the property could not be regarded as reasonable for the petitioner to occupy.

[15]      Thirdly, the respondents had reached a flawed conclusion regarding the petitioner’s use of legal remedies against the landlord.  In particular the respondents had approached the matter on the following basis:  before it could be held as unreasonable to occupy the petitioner required to use all such remedies available to her against the landlord.  In other words, the petitioner must have exhausted her legal remedies against the landlord.  It was his position that this was wrong in law, the respondents had to have regard to the whole circumstances in deciding if the petitioner should have used such remedies.  My attention was directed to R v London Borough of Newham ex p Ugbo 1993 26 HLR 263 at 267/8.  It was argued that what should be taken from Ugbo was that the petitioner should not be required to fight a possession action where there was no purpose served by doing so.  It was submitted that there was no purpose in the petitioner doing so in the instant case as this was a short assured tenancy which at the relevant time was approaching its termination date.  Further, it was argued that by proceeding on the basis that the petitioner was obliged to defend the action raised by the landlord for recovery of possession, no matter what the circumstances, the respondents had not directed themselves to consider whether the petitioner’s explanation for why she did not defend it was reasonable.

[16]      It was further argued that in any event the petitioner had used the legal remedies available to her by calling on the landlord to remedy the defects and retaining rent.  It was not necessary for her to have used the remedies available to her by recourse to the Private Rented Housing Panel (PRHP) as contended by the respondents.  It was reasonable for her to exercise her common law remedy of retention.  Beyond that the petitioner should have been given an opportunity to explain why she had not applied to the PRHP and this had not been done.

[17]      Counsel fourthly turned to section 26(4) of the 1987 Act in terms of which in deciding whether an applicant was intentionally homeless a local authority could have regard to general circumstances prevailing in relation to housing in their district:  in the decision letter the respondents had sought to rely upon this provision.  Counsel, however, submitted that the assessment in terms of the above section which had been carried out by the respondents was not a proper one.  It was submitted that there was no assessment carried out by the respondents in terms of the said section, rather what they said in terms of this amounted to no more than an assertion.  What was necessary was as set out in Noh v Hammersmith & Fulham LBC 2002 HLR 960 at 968, paragraph 36 and 970 paragraph 42.  It was submitted that the assessment exercise in the instant case fell considerably short of that undertaken by local authorities in other cases see:  example R v Kensington and Chelsea ex p Moncada 1997 21 HLR 289 at 293;  R v Westminster City Council ex p Ali 1983 11 HLR 85 at 88 and 93;  and R v Westminster City Council ex p Alouat 1989 21 HLR 477 at 481.  Beyond that it was submitted that it was a proper inference from the decision letter that the respondents had only considered accommodation in one part of their council area, namely:  St Ninians rather than the whole of their area.

[18]      In summary counsel submitted that the respondents had not taken into account all of the relevant factors and had misconstrued how the relevant provision should be applied when considering the general circumstances.

[19]      Fifthly, the respondents had failed to take into account in their decision letter whether the landlord was in breach of contract or had committed an offence.  These were relevant factors to which they should have had regard.

[20]      Sixthly, it was asserted that the respondents had made an incorrect assessment of the basis upon which the petitioner’s landlord had raised the action for recovery of possession, namely:  the respondents had concluded that the recovery of possession occurred because of failure to pay rent.  It was submitted that the respondents should have considered whether the petitioner was in fact in rent arrears, if she was, whether they were to the extent that the landlord claimed, and whether she had a good reason to have refused to pay rent.

[21]      Lastly, the respondents had failed to give the petitioner an opportunity to explain why she did not defend the landlord’s action for recovery of possession.  This was clearly a material factor in the respondents’ decision.  A failure to give her an opportunity to deal with this issue was an error of law.  Reference was made to R v London Borough of Brent ex p McManus at 648 and Hanlin v Nithsdale District Council 1997 HLR 6 at 10.

[22]      In conclusion counsel submitted that the respondents’ decision was flawed and should be set aside for the foregoing reasons.  Even if it was not flawed for any of the preceding reasons, the decision that the petitioner was intentionally homeless was unreasonable.  No reasonable housing authority acting reasonably could have satisfied itself that the petitioner was intentionally homeless.  Whether or not the property was reasonable to occupy was an assessment which should have been made taking into account the specific circumstances of the petitioner.  It was submitted that the condition of the property was such that no person could reasonably have been expected to live there on a long term basis, given the failings of the petitioner’s landlord to assess those failings.  From this the petitioner could reasonably conclude that those and any future defects would be unlikely to be addressed in a timeous manner.

[23]      Counsel then addressed the court regarding three authorities that reliance was to be placed upon by the respondents.  First:  Puhlhofer v Hillingdon LBC [1986] AC 484.

[24]      The respondents relied on a passage at 518B-E.  Counsel accepted that Puhlhofer remained good law.  However, he submitted that it should be read in the context of an assessment of the duty local authorities had to homeless people at the time of that case as set out at 517B-D.  The Code makes it clear that a Scottish local authority is now expected to take a more considerate approach to issues of homelessness and intentionality (see paragraphs 1.1, 1.3 and 5.2).  In addition the duty to house was no longer restricted to those in priority need, rather it is unqualified.  (See section 31 of the 1987 Act).  He accepted that that did not of course mean that the approach set out in Puhlhofer was wrong.  However, it did mean that behaviour by a local authority which might have been considered reasonable in 1986 would now be considered unreasonable in Scotland.

[25]      Secondly, regarding the observations of Lord Neuberger at paragraphs 45 to 52 in Holmes‑Moorehouse v Richmond Upon Thames LBC 2009 1 WLR 413 he submitted that the petitioner’s arguments should not be regarded as falling within the categories that the court should reject as bases for judicial review.  They were, to the contrary, criticisms which went to the essence of the respondents’ decision making process.

[26]      Thirdly as regards Najim v Enfield LBC 2015 HLR 19, this case he submitted could be distinguished from the petitioner’s circumstances in that there is no indication that the appellants had given any indication to the landlord that they would be retaining rent on account of her failures.  Whereas, the petitioner here had given notice to her landlord that she would be retaining rent if the landlord did not fulfil her contractual obligations.  He submitted that it could not be right that a tenant who was exercising her legal remedies could be regarded as causing her own eviction because she was making use of those remedies.  Furthermore, the Code referred to in the Najim case was that which was applicable to England and Wales.  The Code was not identical in the respects relevant to this case to the Code applicable in Scotland, and the judgment in Najim could therefore not be regarded as authority for the way the legislation should be applied in Scotland.

 

The reply on behalf of the respondents
[27]      Counsel commenced his reply by making two general points.  First, under section 28 of the 1987 Act, it is for the local authority, on making enquiries, “to satisfy themselves as to whether (the applicant) became homeless … intentionally”.  Therefore, the question of whether, for the purposes of section 26(1), “it would have been reasonable for (the petitioner) to continue to occupy” a property is a question on which it was for the respondents to satisfy themselves.

[28]      Secondly, so far as the approach of the court to a judicial review in a homelessness case of the type before me he directed my attention to the speech of Lord Brightman at 518B-E in Puhlhofer v Hillingdon London Borough Council:

“My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg, v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] 2 W.L.R. 1, 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

 

It was his submission that if the foregoing approach were taken then the petitioner’s judicial review must fail.  He submitted that the core of the petitioner’s case was set out at paragraph 18 of the petition in the following passage:

“On a proper construction of facts, they were not entitled to satisfy themselves that the Petitioner had become homeless intentionally.  The Respondents could only have concluded that the Petitioner was a person homeless intentionally if it would have been reasonable for her to continue to occupy her accommodation at [the property].  In the circumstances of the defects in the property and the failure and delay of [the Landord] to remedy those defects, as set out in the factual statements above, it was not reasonable for her to be required to continue to occupy that accommodation.  Further, and in any event, no local authority acting reasonably could have considered that it was reasonable for her to be required to continue that occupation in the circumstances.”

 

Two assertions were made within the foregoing passage:  that it was “not reasonable for (the petitioner) to be required to continue to occupy (the property)”.  However, for the reasons stated by Lord Brightman, that fell short of being a ground on which to challenge the respondents’ decision.  Even if the court agreed with the petitioner’s assertion, it could not substitute its decision for that of the respondents.

[29]      The petitioner, secondly, went on to aver that:

“no local authority acting reasonably could have considered that it was reasonable for her to be required to continue that occupation in the circumstances.”

 

This is an assertion that, in making its decision, the respondents acted unreasonably.  In order to amount to a ground for judicial review, that would have to be unreasonableness in the Wednesbury sense.  In the context of a judgment made in a homelessness case, given Puhlhofer, that would have to be “unreasonableness verging on an absurdity”, such that the local authority was “acting perversely”.  Counsel submitted that looking to the decision it could not be said that it was so unreasonable as to verge on an absurdity and it could not be said that the respondents were acting perversely.

[30]      Counsel identified the following reasons as having been given by the respondents for their decision that it would have been reasonable for the petitioner to continue to occupy the property:

a)         When the petitioner was offered temporary accommodation by the respondents in May 2015, on making her application as a homeless person, she declined that accommodation and decided to stay at the property.

b)         In her application for a review, the petitioner had suggested that the respondents ought to take into account her daughter’s medical condition.  The petitioner had also previously taken a medical form from the respondents, for completion in relation to her own medical condition.  However, she had not completed that form, or provided information regarding her daughter’s condition.  Therefore, the respondents had no confirmation that the petitioner’s health, or that of her daughter, was adversely affected by the conditions at the property.

c)         Housing stock of an appropriate size was limited in the area in which the petitioner wished to reside.

d)         The petitioner did not pursue the appropriate routes for legal redress, in respect of her landlord’s failure to address the disrepair at the property.  In particular, she did not raise the issue of disrepair in court, when the landlord sought a decree for eviction, on the ground of rent arrears.

[31]      With respect to the factors considered by the respondents counsel said this:  these were factors that the respondents were entitled to take into account, in deciding whether it would have been reasonable for the petitioner to continue in occupation of the property.  These were also factors that clearly set out a proper basis for a decision that it would have been reasonable for her to remain in occupation.  Thus it could not be said that the decision could be characterised as “verging on an absurdity”;  nor could it be described as the respondents “acting perversely”.

[32]      Counsel then drew my attention to a further authority regarding the approach of the court to the review of a decision letter in the circumstances of a homelessness case, namely:  Holmes‑Moorehouse v Richmond Upon Thames LBC and in particular the opinion of Lord Neuberger, at paragraphs 47 to 50 where he gave guidance as to the approach the court should take when considering decision letters in this area.

            He first said this at paragraph 46:

“Given that the challenge in the county court is treated as a first appeal, the responsibility on the judge considering the challenge is heavy, and, if he or she is satisfied that there is an error in the reasoning which undermines the basis upon which the decision was arrived at, then the decision should obviously be set aside.”

 

He then turned at paragraph 47 to make the following observations relative to the approach of the judge:

“However, a judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions.  Although they may often by checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers.  It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament or to a court’s judgment.”

 

He went on further to say this at paragraph 48:

“… If the courts are too critical in their analyses of such decisions, it will tend to discourage reviewing officers from expressing themselves so fully.”

 

Then at paragraph 49:

“… it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.”

 

Having made these observations he concluded at paragraph 50 by saying this as to the general approach which should be adopted by the courts:

“Accordingly, a benevolent approach should be adopted to the interpretation of review decisions.”

 

Counsel emphasised that the above passage was of considerable significance in England and it was compulsory to refer to it when considering judicial reviews in the context of homelessness cases.  He submitted that it should be of equal importance in Scotland.

[33]      Having set the general framework within which the decision required to be considered counsel turned to make a series of detailed responses to the points put forward on behalf of the petitioner.

[34]      With respect to the making of a wrong assessment as to why the landlord recovered possession, the respondents had concluded it was because the petitioner had failed to pay rent.  This he submitted was a correct conclusion.  The order for recovery of possession was made under section 18 of the 1988 Act grounds 8, 11 and 12 of Schedule 5 to the Act.  Each of these grounds related to non‑payment of rent.  It was under section 18(3) and (4) of the 1988 Act that the court granted decree for recovery of possession, on those grounds.  It was important to appreciate that under the 1988 Act, the court had no power to grant decree for recovery of possession of a house let under an assured or short assured tenancy, unless the requirements of the statutory scheme were met.  The court had no other basis on which to grant such a decree, apart from the grounds stated by the landlord.  The petitioner consented to that decree being granted.  The court order was thus granted because she had substantial arrears of rent.  Therefore, in terms of section 26(1) of the 1987 Act, the act or omission in consequence of which she ceased to occupy the tenancy was her failure to pay rent.  Thus it was simply wrong for the petitioner to assert:

“The reason why she no longer occupied the property was not due to an action or omission on her part.”

 

Even on her own version of events, she had not paid rent over a substantial period of time, namely:  between October 2014 and August 2015, when decree was granted.  During that time she would have accumulated arrears of approximately £5,500.  On the landlord’s account, the arrears accumulated over the course of the tenancy were greater, amounting to more than £8,000.  However, whatever the amount the reason for her losing her accommodation was rent arrears.

[35]      With respect to the issue of retention counsel’s position was that the decision letter showed a correct understanding of the petitioner’s position.  The letter refers specifically to the petitioner’s letter to her landlord, 7/15 of process in which she said she would do works herself and deduct rent to pay for this.  Accordingly the decision-maker had had in mind the petitioner’s position regarding retention.  However, counsel went on to submit that this was not retention.  The petitioner was not retaining rent in order to have the landlord carry out repairs and once done she would pay to the landlord the retained rent.  Rather according to her she was paying for repairs, from rent which she had not paid.  Beyond that there was also considerable doubt as to whether the petitioner had in fact retained any money.  Reference was made to the affidavit of Lesley McGregor, the housing officer who had dealt with the petitioner’s application.  In terms of that affidavit she in short stated:  that the petitioner did not provide any specific information or verification regarding the retained money until on 26 August 2015 she produced a document showing a balance of £2,659.88.  However, this document had a number of significant blanked out parts and although it could be identified as a bank statement what could not be identified was whose bank account this related to.  There was thus no proper evidence that the petitioner had retained any money.  Further even if it was accepted that she had retained the sum referred to in the said document on her own version of events by that point she owed the landlord £5,500 and accordingly was considerably in arrears.

[36]      So far as the petitioner’s argument that it was pointless for her to defend the action raised by the landlord because she was a short assured tenant, this ignored the following: 

• the landlord did not seek a decree in terms of section 33 of the 1987 Act on the basis that the tenancy had reached its term.  This was not the basis of the eviction.
• the landlord had allowed the tenancy to continue for a number of years on the basis of tacit relocation.  The petitioner had no reason to believe that the tenancy would be ended on the basis that the term date of the tenancy was approaching.

[37]      As regards the condition of the property he submitted that on a fair reading of the decision letter, the respondents had not discounted or put to one side the petitioner’s position regarding the condition of the property rather they had given this full consideration.

[38]      Moving to the petitioner’s medical position and the medical position of her daughter, counsel accepted under reference to the code at paragraph 5.1.3 that in the context of whether it was reasonable to continue to reside in the property such matters were relevant.  The respondents he submitted did consider these matters at the last paragraph on page 2 of the decision letter.  However, they were unable to attach any significance to these factors due to a failure by the petitioner to provide “external medical confirmation”.  He submitted that such a conclusion could not be criticised. 

[39]      In response to the contention that the respondents’ approach to housing stock had been incorrect counsel said this:  section 26(4) of the 1987 Act allows, but does not oblige a Council to take into account the surrounding circumstances.  So far as the criticisms of the respondents’ approach in terms of this provision he contended that on a fair reading of the decision letter it was not correct that the respondents had only had regard to the housing stock in one part of their area.

• There was no requirement for the respondents to carry out a full analysis as argued on behalf of the petitioner.  There was no requirement to go beyond the analysis which they undertook and the information they provided in the decision letter passed the Wordie test.
• Given the petitioner’s circumstances there was no basis for offering a 3, 4 or 5 bedroom house. 
• The respondents only required to have regard to the extent to which appropriate accommodation was available in the social sector in that between October 2014 when the petitioner stopped paying rent and August 2015 when she was evicted she could have found, if available and appropriate for her, private sector accommodation.
• The respondents had had full regard to all of the circumstances.  Beyond that even if they did not properly apply section 26(4) the court should adopt the benevolent approach as set forth by Lord Neuberger.  Even if consideration of the general circumstances in terms of section 26(4) was removed there was still a proper basis for the respondents’ decision.

[40]      The criticism of the respondents’ approach to the failure to make use of other remedies he submitted was not well founded.  In development of that he submitted that the respondents were entitled to have regard and did have regard at the third paragraph on page 3 of the decision letter to the petitioner’s failure to use alternative remedies.  Counsel’s position was that although the PHRP was not expressly referred to in that paragraph of the decision letter, when it referred to other routes open to the petitioner it was referring among others to the PRHP.  That body had been in existence since 2007/8 and could pronounce enforcement orders where landlords were failing to remedy defects and also had the power to abate rent.  As was clear from the petition and the petitioner’s affidavit, 6/11 of process at page 3, the petitioner at all relevant times was aware of the body but had not used it because she claimed she feared the landlord would evict her.  This, however, made no sense as her position was that she had retained rent which equally could have led to her eviction.

[41]      Finally, counsel dealt with the procedural unfairness argument.  The petitioner’s point in short he said was this:  the petitioner was not given an opportunity to say what her position was regarding the granting of the eviction order.  Counsel simply submitted that this was not the case as the petitioner had fully put forward her position in an email dated 11 August 2015 sent to the respondents, 7/12 of process.  Counsel’s position was that, if given a further opportunity by the respondents to comment, there would have been nothing further she could have added.  In any event for the reasons he had earlier advanced her position in the said email that she was not evicted for rent arrears was palpably, legally wrong.

[42]      For these reasons he submitted that the petition should be refused.  Counsel did address me with respect to Najim v Enfield LBC I did not find this case of any particular assistance, as it appeared to turn on its own facts and did not appear to set out any points of principle.

 

Discussion
[43]      I would begin with certain general observations:  first that, I am persuaded, the correct approach in a judicial review, the subject of which is a challenge to a homelessness decision, is as set out by Lord Brightman in Puhlhofer which I earlier quoted in full.

[44]      I believe what can be taken from the above guidance so far as the instant case is concerned is that the questions that the court should be asking itself are:  does the decision verge on being an absurdity? or does the decision show that the respondents were acting perversely?

[45]      In addition in analysing the content of the decision letter I am satisfied that it is essential to keep at the forefront of one’s mind the guidance given by Lord Neuberger in Holmes‑Moorehouse and approach the decision letter in light of that guidance.

[46]      With those considerations in mind I turn to examine the decision letter.

[47]      First, counsel for the respondents set out four specific reasons upon which the respondents reached their decision that it was reasonable for the petitioner to continue in occupation of the property.  I, without difficulty, find that each of these were factors that the respondents were entitled to have regard in deciding whether it would have been reasonable for the petitioner to continue in occupation of the property.  I believe that counsel for the respondents was correct when he said that when looked at together these reasons set forth a proper basis for the decision which the respondents arrived at.  I do not believe that the respondents’ decision can properly be described as being either verging on an absurdity or that it evidences the respondents’ acting perversely.

[48]      I would observe that it appeared to me that the approach of counsel for the petitioner in his analysis of the decision letter was to approach it as if it were an act of Parliament a contract or the judgment of a court.  His approach appeared to be one that was specifically said by Lord Neuberger in Holmes‑Moorehouse not to be appropriate when examining a decision in a homelessness case.

[49]      I now turn to examine the various criticisms that were made of the decision letter.

[50]      I am persuaded, for the reasons put forward by counsel for the respondents that the decision letter is correct when it says that “the continued non-payment of rent was the clear reason that the landlord took you to court”.  Given the part of the 1988 Act in terms of which the action was raised by the landlord, the only basis upon which the sheriff could have granted decree was a failure to pay rent.  It is noteworthy that the petitioner consented to that decree.  The fact that the landlord, for whatever reason, did not seek to recover the rent arrears is not relevant.  What is relevant is that decree flowed from the petitioner’s failure to pay rent.  Accordingly in terms of section 26(1) of the 1987 Act the act or omission in respect of which she lost her tenancy was her failure to pay rent.  Thus the petitioner’s assertion that:

“The reason why she no longer occupied the property was not due to an action or omission on her part.”

 

was manifestly wrong. 

[51]      Turning to the issue of looking behind the decree.  I accept counsel for the respondents’ position that even if the petitioner’s position regarding retention is accepted she was clearly still significantly in arrears.  In any event the petitioner’s approach to retention is not as a matter of law correct:  what she said to the landlord was that she was not going to pay rent and she would carry out such repairs as she thought fit and that is not retention.  In so far as she retained rental, which would be paid to the landlord on the carrying out of repairs by the landlord, there was no proper evidence produced to the respondents to establish that she had done this and even if the evidence produced was acceptable there were still substantial rent arrears. 

[52]      With respect to the argument that the respondents should have had regard to there being no purpose to the petitioner defending the action raised by the landlord in that it was a short assured tenancy and termination in any event would have taken place in early course I believe that this argument is misconceived as there was no basis for the petitioner taking the view that the tenancy would be terminated on that basis.  First, proceedings were not brought on that basis by the landlord and secondly, it was not disputed that the tenancy had been tacitly relocated on a number of occasions over the years.  The only basis for the action and the only basis that the petitioner could have had for thinking that the tenancy would be brought to an end was her failure to pay rent.

[53]      With respect to the issue of the defects in the property and the failure of the respondents to have proper regard thereto, it appears to me that on a fair reading of the whole decision letter the respondents did take proper account of the petitioner’s position regarding defects. 

[54]      At page 2 of the decision letter in the second last paragraph the respondents have regard to the photographs provided by the petitioner regarding this issue together with a range of other information made available to them from the petitioner with respect to this issue.  They take account of her general dissatisfaction with the landlord with respect to these matters and her undertaking to have certain repairs carried out herself.  They considered the inspection by their own enforcement officer and the results thereof.  Lastly, the writer takes into account that despite the petitioner’s complaints on being offered temporary accommodation by the respondents she nevertheless decided to remain in the property.

[55]      All of the above are relevant considerations with respect to the decision which the respondents had to make.  I am unable to identify any relevant factor which the respondents have failed to have regard to regarding this issue.  They have, it appears to me, on a fair reading of that paragraph, taken account of the length of time the defects have existed and the alleged difficulties which the petitioner has had in seeking to have these defects dealt with by the landlord.  It is expressly stated in the letter that the defects had existed “over the duration of your tenancy”. 

[56]      The above is a full and proper consideration of this issue.  The respondents have considered all relevant factors and not considered any irrelevant factors.  The conclusion which they have reached regarding the effect of the defects with respect to the issue of the ability of the petitioner reasonably to continue to occupy the property is one with which the petitioner does not agree, however, it is not having regard to the whole circumstances considered an absurd decision or a perverse decision.  It was one the respondents were entitled to reach.  A decision of this type is for the judgment of the respondents and their decision falls within the reasonable spectrum of responses.

[57]      It is correct to say that at the bottom of page 4 of the decision letter the respondents say:  whether the landlord is in breach of his legal duties, in breach of contract or has committed an offence is not relevant to the remit of the review.  That passage cannot in my view be read in isolation but has to be looked at in the context of the whole terms of the decision letter.  It does not follow, as was argued on behalf of the petitioner, that the respondents did not have regard to the defects complained of.  They clearly did have regard to these factors in the earlier part of the decision letter to which I have already referred.  In any event it does not appear to me that the position the respondents have taken is incorrect as argued by the petitioner.  The questions of a legal decision as to whether the landlord has breached her legal duties, breached her contract with the petitioner or has committed an offence are not matters for the respondents to decide.  What the respondents had to have regard to was the evidence regarding the defects, which they did have regard to, and decide whether it was reasonable for the petitioner to continue to occupy.

[58]      As regards the alleged medical condition of the petitioner and her daughter the respondents approached this in the proper manner:  they noted that these matters had been put forward on behalf of the petitioner in support of her application and thus accepted that these were relevant considerations to which they had to have regard.  However, they attached no significance to these particular factors.  They were entitled to attach no significance to these particular factors in the absence of the necessary external medical confirmation.  If the petitioner wished significance to be attached to these factors she required to produce this information.

[59]      As regards the arguments regarding the respondents’ approach to section 26(4) of the 1987 Act I prefer the submissions made on behalf of the respondents. 

[60]      The effect of the provision is this: the respondents when considering the petitioner’s application were not limited to viewing the petitioner’s circumstances in isolation in deciding whether it was reasonable for her to continue to occupy the property.  Rather, they were entitled to have regard to the wider context of the housing circumstances in their area.

[61]      At page 3, paragraph 1, of the decision letter the respondents do not I believe on a fair reading limit their consideration of the availability of housing stock to one part of their area.  The paragraph contains no explicit words limiting their consideration in the way advanced by counsel for the petitioner.  Nor does it contain any words from which this could reasonably be inferred.

[62]      The respondents were entitled in taking account of the wider context to have regard to:  first the size of property suitable for the petitioner and her family.  It seems to me an absurd argument that it should have been necessary for the respondents to consider in terms of section 26(4) the availability of houses which were clearly far too large for the petitioner and her family.  It was relevant for the respondents to take account of the fact that the greatest demand for housing in their area was for property of the size being sought by the petitioner.  Secondly, the respondents were entitled to have regard when considering these wider issues to the availability of housing in the particular part of their area in which the petitioner wished to live.  This was considered in the context of “taking this into account as well as the wider general circumstances prevailing in the area”.  Thus although the respondents had regard to where she wished to live they also had regard to the circumstances prevailing within the whole area.

[63]      Given the purpose of section 26(4) I am satisfied that the circumstances which the respondents considered are relevant circumstances.  Any consideration in terms of section 26(4) is fact sensitive and the respondents had regard to the particular circumstances relevant to the petitioner’s case.  There was in my judgement no need to carry out any large scale analysis as was carried out in certain of the cases to which I was referred.  This was simply unnecessary in the present case.

[64]      It appeared to be argued on behalf of the petitioner that the respondents’ decision in terms of this provision amounted to no more than an assertion and did not provide any reasoning.  In my view there was sufficient reasoning put forward in respect of the respondents’ consideration in terms of this provision and it would certainly have passed the Wordie test. 

[65]      Beyond that I agree with counsel for the respondents that even if anything was wrong with the approach to section 26(4) there was sufficient, excluding the considerations in terms thereof to form a proper basis for the respondents’ decision.

[66]      So far as the PRHP is concerned I believe the respondents were entitled to have regard to the failure to take this route.  Given the problems which she maintained she was having with her landlord it was the obvious course for her to take.  She was aware of the existence of this body.  Her explanation for not taking this particular route, as submitted by counsel for the respondents made no sense.  This route was clearly the most effective way to deal with the problems.  The powers of this particular body, namely:  enforcement orders and abatement of rent were clearly very powerful tools which could have been used by the petitioner.  It was appropriate accordingly for the respondents to hold that this was a factor which they were entitled to take into account when making their decision.  Equally the respondents were entitled to have regard to the petitioner’s failure to raise in court the issue of disrepair.

[67]      With reference to the criticisms based on procedural unfairness, I find myself entirely in accord with the submissions made on this particular issue by counsel for the respondents.  The petitioner had put before the respondents her response to the court order.  It was wrong in law as it argued she had not been removed from the property due to rent arrears.  There is no substance in the petitioner’s argument under this head.

[68]      For all of the above reasons I do not believe there is any substance in the petition.  In summary on the material before them the respondents reached a decision they were entitled to reach.  They took account of no irrelevant factors and took account of all relevant factors.  They applied the correct legal test.  They gave adequate reasons for all parts of their decision.

 

Decision
[69]      I accordingly sustain the respondents’ first to third pleas in law, repel the petitioner’s pleas in law and refuse the petition.  I have reserved all questions of expenses.