Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 55

P1207/15

OPINION OF LORD CLARKE

In the petition of

EC

Petitioner;

for

Judicial Review of a decision by Stirling Council, the respondents, that the petitioner is intentionally homeless and for certain other orders. 

Petitioner: Lazarowich;  Drummond Miller LLP

Respondents:  Stalker;  CMS Cameron McKenna LLP

20 April 2016

[1]        In this petition for judicial review, the petitioner seeks review of decisions of the respondents (Stirling Council) of 20 July and 24 September 2015, whereby the respondents determined that the petitioner was homeless, but also that she was intentionally homeless and that, accordingly, they were not obliged to secure permanent accommodation for her. 

[2]        The background to the respondents reaching the said decisions was as follows. 

[3]        On 22 June 2015 the petitioner applied to the respondents for accommodation as a homeless person.  On 23 June 2015 the respondents provided the petitioner with temporary accommodation at [address A Stirling].  The petitioner had previously held a tenancy of subjects at {address B Stirling].  She was served with what bore to be an eviction notice from that tenancy on or about 30 April 2015.  She avers that the eviction notice was served approximately one month after she had left that property – see article 12.  The eviction notice, 6/1 of process, set out 10 reasons why the landlord had decided to terminate the tenancy.  The grounds for issuing the notice included inter alia: 

“1.     Destruction of property Police raid resulting in an entrance door being smashed in. 

2.     Drug use in the property. 

3.     No due care and attention to kitchen units (doors broken, carpets cigarettes, and substance unknown ground into brand new carpets) and sanitary ware (system broken, toilet seat missing). 

9.     Constant visits from persons at all times of the day and night to the annoyance and disturbance of other occupiers of the building.” 

[4]        The petitioner, in article 13, avers “she denies that she behaved in a way that would have constituted a breach of tenancy”.  She denies all the allegations in the notice about her behaviour at the subjects.  The notice stated that it was to have effect from 31 May 2015 and it advised the petitioner to contact the respondent’s regarding housing. 

[5]        In answer 13 the respondents aver as follows: 

“Explained and averred that on 22 and 29 April 2015 police officers executed search warrants at [address B Stirling].  The first warrant was executed after officers received information that the petitioner was dealing drugs from the property.  During the course of that search, the petitioner admitted to possessing cannabis and diazepam which she claimed was for personal use.  As a result of a search on 29 April the petitioner was arrested, and charged with possession of heroin.” 

[6]        The petitioner’s response to those averments of the respondents, which relate to matters particularly within her notice, is to the following effect in article 11:  “she accepts the police visited at the property but no drugs were found during that visit”. 

[7]        As noted above the petitioner applied to the respondents for accommodation on 22 June 2015.  In article 11 of the petition she avers that she had left the property at [address B Stirling] on a date unspecified to live her boyfriend at [address C Stirling].  Her averments continue: 

“It was her intention to form a stable relationship with him and to reside with him on a long-term basis.  However, her boyfriend reverted to his previous use of heroin and the petitioner did not want to continue residing with him in these circumstances”. 

[8]        Section 29 of the Housing (Scotland) Act 1987 provides, inter alia, as follows: 

“(1) If the local authority have reason to believe that an applicant may be homeless they shall secure that accommodation is made available for his occupation—

(a) pending any decision which they may make as a result of their inquiries under section 28; 

(b) where the applicant has, under section 35A, requested a review of a decision of the authority, until they have notified him in accordance with section 35B of the decision reached on review; 

(c) where, by virtue of a decision referred to in paragraph (a) or (b), the authority have a duty under section 31 to secure that accommodation of a particular description becomes available for the applicant's occupation, until such accommodation becomes available.” 

The respondents, on receipt of the petitioner’s application for accommodation, provided interim accommodation to the petitioner in compliance with their duties contained in section 29.  They were then obliged in terms of the statute to proceed under section 31 which is, inter alia, to the following effect: 

“Section 31 duties to persons found to be homeless.

(1)   This section applies where a local authority are satisfied that an applicant is homeless.  

(2)   Where they are not satisfied that he became homeless intentionally, they shall, unless they notify another local authority in accordance with Section 33 (referral of application of local connection) secure that permanent accommodation become available for his occupation … “

Those provisions required the respondents to reach a decision as to whether or not the petitioner had become homeless intentionally.  There is no onus on an applicant in such a case to satisfy the respondents that he has not become homeless intentionally.  It is for local authority, such as the respondents, to address this issue and reach a conclusion upon it based on the material available to them after investigation.  Section 28(1) provides as follows: 

“(1) If a person (‘an applicant’) applies to a local authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquires as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.” 

Section 28(2) continues: 

“(2) If the authority are so satisfied, they shall make any further enquires necessary to satisfy themselves as to -

(b)   whether he became homeless or threatened with homelessness intentionally; 

and if the authority think fit, they may also make inquiries as to whether he has a local connection with the district of another local authority in Scotland, England or Wales.” 

In the present case the respondents, in carrying out their duties under section 28, obtained certain information.  In the first place they ascertained, on 8 July 2015, by way of an email from the police, that on 22 January 2015 the petitioner was treated as a suspect for possession of cannabis and diazepam.  A warrant had been executed at the address [address B Stirling] after information was received that she was dealing in drugs.  The drugs in question had been sent to the lab for analysis and the result was still pending.  No charge had as yet been made although the petitioner had admitted to having cannabis and diazepam which she said was for personal use. 

[9]        On 29 April 2015 the petitioner was charged with possession of heroin at [address B Stirling] and on suspicion of possessing amphetamine.  A warrant was executed at the address and the petitioner made partial admission.  The police were waiting on lab results. 

[10]      The respondents also ascertained that the petitioner had on 22 May 2015 made an application for housing benefit and council tax relief in respect of [address B Stirling], No.s 7/2 and 7/3 of process.  In her application the petitioner was asked to state all the other addresses that she or her partner had lived at in the last 12 months.  The only address entered in reply to that enquiry by the petitioner was [address B Stirling].  Further investigations made in the respondents’ housing department revealed that they had no record of the petitioner living at [address C Stirling].  She was, however, recorded as living at [address B Stirling] from 6 August 2014 until 31 May 2015. 

[11]      The respondents contacted the landlord of the property at [address B Stirling] who confirmed that he had asked the petitioner to leave his property because of breach of the tenancy.  An official of the respondents is recorded as having visited the subjects at [address C Stirling] on 7 July to speak to AC, said to be the petitioner’s boyfriend and the registered tenant of the said subjects.  He was not there and a card was left for him to contact the respondents.  No contact was made by the said AC, No. 7/8 of process. 

[12]      Having considered these matters the respondents reached the conclusion that the petitioner had become intentionally homeless.  That decision was intimated to the petitioner on 20 July 2015 – No. 6/2 of process.  On 7 August 2015 there was intimated to the respondents an appeal against that decision by Shelter Scotland, on behalf of the petitioner.  The grounds of appeal set out in the appeal notice were as follows: 

“I submit that E did not become homeless intentionally within the statutory definition set out at section 26 of the Housing (Scotland) Act 1987, for the following reasons: 

(1)   She did not give up settled accommodation without having somewhere else to go to. 

This decision was made prior to the service of the NTQ.

(2)   She became homeless from the accommodation she was sharing with her partner when the relationship broke down. 

I would be grateful if you would have regard to this information and revise your decision.”  No. 6/3 of process. 

The respondents considered these grounds of appeal and by letter of 24 September 2015, 6/4 of process, intimated to the petitioner’s representative that, having reviewed the petitioner’s case, the appeal failed.  In particular at page 2 of the decision letter it was stated inter alia as follows: 

“From the information I have, I understand that Ms C had advised that she had decided to leave her tenancy because she wanted to move in with her partner Mr C.  However, it is also clear that she did not terminate her private let correctly nor did she contact her landlord to advise that she was not intending to return.  In addition, according to Ms C she had only been living at [address C Stirling] for approximately two months before seeking to make a homeless application on 22 June 2015.  This is a relatively short time period when taking into account Ms C did not contact her landlord and terminate her tenancy correctly, I do not believe her actions suggest her move to [address C Stirling] was intended to be for the long term.  I agree with the original assessment that her last settled accommodation was at [address B Stirling] and that the assessment should relate to the manner in which this tenancy ended … taking all of the above into account, I am of the opinion that your client left her tenancy to move in with a partner because she was fully aware that her landlord would be seeking to end her tenancy due to the behaviour she had displayed during its duration and I am satisfied that the original intention of the homeless decision was correct.  This means she is entitled to temporary accommodation for a reasonable period and advice and assistance to help her source alternative accommodation.” 

[13]      In seeking to attack the respondents’ decisions, counsel for the petitioner, in his submissions, departed somewhat from the terms of the petition, as did his written note of argument.  Counsel informed the court that he was no longer seeking to argue that the respondents had not been entitled to reach the view that by her actings in relation to the tenancy at [address B Stirling] she had become intentionally homeless.  The respondents had erred, however, it was argued that in reaching the view that there was a continuing causal connection between any deliberate acts, or failures, by the petitioner in relation to the tenancy at [address B Stirling] and her homelessness at the date she made an application to the respondents for accommodation as a homeless person.  It was clear, from the terms of the respondents decisions that they had treated the petitioner’s stay at her boyfriend’s flat at [address C Stirling] as not involving her being in “settled” accommodation which would have broken any causal connection between the petitioner’s conduct or failures in relation to her own tenancy at [address B Stirling]. 

[14]      These submissions were made under reference to a number of decisions from the courts in England – Din (Taj) -v- Wandsworth London Borough Council [1981] 3 WLR 918, R v Brent London Borough Council, ex parte Awua [1996] AC 55 and Haile v Waltham Forest LBC [2015] AC 1471.  These cases deal with the homeless persons legislation pertaining in England and Wales but can be considered authoritative having regard to the close similarity in language of the English legislation to that of the Scottish legislation.  In the Din case Lord Wilberforce, at page 688, held that a disqualification for obtaining accommodation, under the homeless persons legislation, on the grounds of the person having made himself intentionally homeless, was not displaced by obtaining temporary accommodation.  Lord Wilberforce, in particular, approved of a passage in the judgment of Ackner LJ in the Court of Appeal in Din where his Lordships said: 

“To remove his self-imposed disqualification, he must therefore have achieved what can be loosely described as ‘settled residence’ as opposed to what from the outset is known (as in Dyson case [1980] 1 WLR 1205) to be only temporary accommodation.  What amounts to a ‘settled residence’ is a question of fact and degree depending upon the circumstances of each individual case.”

In the Brent case Lord Hoffmann gave the principal judgment with which all other members of the House of Lords agreed.  His Lordship at page 69D said: 

“The distinction between a settled residence and temporary accommodation is thus being used to identify what will break the causal link between departure from accommodation which it would have been reasonable to continue to occupy and homelessness separated from that departure by a period or periods of accommodation elsewhere”. 

[15]      The whole approach to the question of whether or not, in such cases, there has been a break in the causal connection between a deliberate act in leaving available accommodation and homelessness at the date of the housing authority holding a person intentionally homeless or not has been reviewed exhaustively by Lord Reed, given the main judgment in the case of Haile, Lord Carnwath dissenting, Lord Reed and the majority may be seen to have departed somewhat from the approach of the House of Lords in the case of Din.  In referring, however, to the provisions of the English statute, which are the equivalent of sections 26 and 31 of the Scottish legislation, Lord Reed, in his judgment, held that for the purposes of the enquiry which the housing authority has to carry out under section 193(1) of the Housing Act 1996 (being the equivalent of section 31 of the Housing (Scotland) Act 1987), the correct question for the court to ask was first whether the person deliberately had done or failed to do anything in consequence of which he had ceased to occupy accommodation which it would have been reasonable for him to continue to occupy and, if so, whether his current homelessness had been caused by that intentional conduct.  There had, however, to be a continuing causal connection between that deliberate act and the homelessness existing at the time of the enquiry and such causal nexus would be broken by an actual, as opposed to a hypothetical intervening period, which had the effect that the pursuer would, in any event, have been homeless at the date of the enquiry, regardless of his earlier conduct - see paragraphs 25, 26, 60 and 61 of his Lordships judgment.  His Lordship, furthermore, opined that such an approach was consistent with the purpose of the legislation which was designed to protect queue jumping by persons who sought to bypass the waiting list for housing by deliberately making themselves homeless and receiving preferential treatment which they would not otherwise have received. 

[16]      In the Brent case Lord Hoffmann at page 69, in referring to the use of the expression “settled residence” in the dictum of Ackner LJ, agreed that the causal connection between the original, intentional homelessness and the existing homelessness may be broken by the acquiring of a “settled residence” in the meantime.  His Lordship remarked that he wished to reserve the question of whether the emergence of a settled residence was the sole and exclusive method by which the causal connection could be broken.  Lord Hoffmann, at page 68 of his speech, discussed the case of Dyson v Kerrier District Council [1980] 1 WLR 1205.  In that case a lady had given up a flat in Huntingdon and went to live in Cornwall.  The accommodation in Cornwall, however, was only a three month winter let.  She knew that this tenancy was not protected and that she would have to leave on the expiry of three months.  When she was finally evicted she sought accommodation from the housing authority on the basis that she was now homeless.  The Court of Appeal rejected an argument, on her behalf, that in applying the relevant statutory provisions the authority was concerned only with the accommodation which the appellant had been occupying at the time when she became homeless.  That was the cottage in Cornwall and it was not reasonable to expect her to continue to occupy that accommodation because the court had ordered her to leave it.  The Court of Appeal rejected this argument and held that one was not confined to asking whether it would have been reasonable to continue to occupy the cottage in Cornwall.  If it would have been reasonable to occupy the flat in Huntingdon and there was a causal link between deliberately leaving that flat and her subsequent homelessness in Cornwall, then she was intentionally homeless.  In Haile Lord Reed, in particular at paragraph 29, said that: 

“the person who intentionally gave up his accommodation and moved into temporary accommodation and waited to be evicted … deliberately did something in consequence of which he ceased to occupy accommodation which was available for his occupation and which it would have been reasonable for him to continue to occupy.  The causal test under section 191(1) is therefore satisfied, even though he did not at that stage become homeless.  When he did become homeless, following his eviction from the temporary accommodation, he could properly be said under section 193(1) to have become homeless intentionally, since the effective cause of his homelessness was his previous intentional conduct, but for which he would not be homeless.  That conduct was a ‘but for’ cause of his homelessness, and no unconnected event had intervened to break the causal connection.” 

In the Haile case itself the facts were that the applicant had voluntarily left hostel accommodation designed for single occupation only.  She subsequently gave birth to a child.  She then applied for accommodation as a homeless person.  Lord Reed considered that, on that state of facts, the consequence of the applicant having given birth was that it could not be said, in relation to her earlier conduct, in leaving the hostel, that “if she had not done that deliberate act she would not have become homeless”.  Lord Neuberger at paragraph 77 summarised the point in this way “a new event had intervened, so that it could no longer be said that, but for the appellant vacating voluntarily, she would not have been in occupation of the Leah Bridge house flat in January 2013:  She would not”. 

[17]      In the present case the petitioner’s case was that the chain of causation had been broken between the original vacating of the house at [address B Stirling] and the appellant presenting herself to the respondents as homeless.  That, it was submitted, was because she had, after leaving the accommodation at [address B Stirling] obtained “settled accommodation” at her boyfriend’s flat. 

[18]      The expression “settled accommodation” does not find its place in the relevant statutory provisions.  It is, it appears, a product of judicial law making that has been employed by the judiciary in the cases discussed.  As Ackner LJ pointed out, however, what is a “settled residence” is a question of fact and degree depending upon the circumstances of each individual case.  The Shorter Oxford English Dictionary defines “settled” as “fixed, established, unchanging”.  Lord Neuberger in Haile at paragraph 80 referred to “permanent rehousing after the deliberate homelessness” as capable of breaking the chain of causation. 

[19]      Provided the respondents in the present case understood and applied the law in question correctly, in accordance with the statutory provisions as explained by the courts, the questions of fact involved were for them and them alone.  It is not the function of this court in a petition for judicial review to open up their decision on the facts provided, their conclusions are based on facts and evidence which can support their conclusion.  As Lord President Dunedin said in Eamon v Dalziel & co [1912] SC 966 at page 968: 

“The criterion is whether anyone could reasonably have come to that conclusion … it is not a question of whether the decision is right or wrong, but a question of whether there was evidence led upon which the decision can be supported.”  (Cited in Clyde and Edwards Judicial Review at paragraph 22.32.) 

[20]      In the present case the issue, as argued before the court, was in effect that the respondents should have arrived at the conclusion that the petitioner had acquired “settled accommodation” at her boyfriend’s flat at the time she made her application for accommodation to the respondents, which had broken the chain of causation between her state of homelessness, caused by her abandoning her tenancy at [address B Stirling], and her position as at the date of making her application to the respondents.  It appears to me that the only evidence of her having acquired a “settled residence”, subsequent to her abandonment of her tenancy, was her own assertion to that effect.  There was no evidence produced to, or obtained by the respondents, which indicated that any residence which she did have at her boyfriend’s flat was, in any real sense, “settled”.  There was, on the other hand, evidence to suggest the contrary.  In the first place, as the respondents pointed out in their decision, on the petitioner’s appeal, the length of time any such residence existed was very short indeed.  At most it was for a period just under two months although in one view of the evidence it could well have been for less.  In the second place, during the time the petitioner maintained she had acquired “settled accommodation” with her boyfriend she was making representations to the respondents in support of an application for housing benefit that her residence at the date of those representations, 22 May 2015, continued to be at the house at [address B Stirling].  In the third place, the petitioner herself informed the respondents that she had left her boyfriend’s flat because he had resumed his drug‑taking, which had caused a previous split between them.  That might be reflective of any residence that the boyfriend’s flat being more on a trial basis and not being in any real sense permanently established.  Her position was that she had the intention to form a stable relationship with the boyfriend.  That does not amount to evidence of a settled residence having been obtained.  In any event the intention was unfulfilled as she avers “her boyfriend forced her to leave the premises at [address C Stirling] on or around the first week of June 2015”. 

[21]      In the light of that material, and in the absence of any material supportive of the establishment of existence of a settled residence with her boyfriend, apart from the petitioner’s own assertion to that effect, I am entirely satisfied that the respondents had sufficient material before them to determine the issue of “settled residence” in the way they did.  While I accept, as counsel for the petitioner submitted, that the factual position in the present case is different from that which arose in relation to the holiday let in the Dyson case, those factual differences do not, in my judgment, in any way impugn the reasoning of the respondents in the present case.  I am satisfied that they approached the legal question that they had to ascertain in this case, correctly, and exercised their judgment in relation to a matter which is one of fact and degree in a way that was entirely legitimate.  They were entitled to hold that the effective cause of the petitioner’s homelessness was her previous intentional conduct, but for which she would not have been homeless. 

[22]      For these reasons the petition is dismissed.