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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> ZUNGUNDE, PETITION OF TAPIWA ZUNGUNDE FOR JUDICIAL REVIEW [2018] ScotCS CSOH_100 (03 October 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_100.html
Cite as: 2018 Hous LR 96, [2018] ScotCS CSOH_100, 2018 GWD 32-402, 2019 SLT 37, [2018] CSOH 100
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P309/18
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 100
OPINION OF LORD WOOLMAN
In the petition of
TAPIWA ZUNGUNDE
for
JUDICIAL REVIEW
Petitioner: Dailly (sol adv); Drummond Miller LLP
Respondent: Campbell; NHS Scotland Central Legal Office
Petitioner
Respondent
3 October 2018
Introduction
[1] Four years ago the petitioner slept rough on the streets. In October 2014 he obtained
a Scottish Secure Tenancy from the Glasgow Housing Association (GHA). At that time he
was receiving funding from the Student Awards Agency for Scotland, together with income
from low paid employment. From August 2016 onwards his sole income was Job Seeker’s
Allowance (JSA) of £69 per week. His rent was met in full by housing benefit. The
petitioner ran into financial difficulties. He defaulted on his rent. GHA raised an action to
recover possession of his flat. He entered into a repayment plan. He agreed to pay £12.75
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per week to clear his rent arears. He did so even though he believed that sum to be
unaffordable. Unfortunately his belief proved to be correct. He was unable to keep up with
his repayments to GHA. A Sheriff granted decree of eviction on 16 October 2017. Since then
the petitioner has resided in a homeless hostel in Glasgow.
The decision letter
[2] After eviction the petitioner applied to be rehoused. On 28 December 2017 he
received a letter headed “Glasgow City Health and Social Care Partnership”. It refused his
application. The operative part of the decision letter stated, “Having considered those
matters which the Act obliges me to take into account Glasgow City Council considers you
to be homeless and that you became homeless intentionally”. The letter contains a reference
to the right of review. It states that, “you do have the right to request a review of this
decision and if you wish to do so you must submit a review request to the case work office
within 21 days of the date of this letter”. It also suggests that the petitioner seeks
independent advice from the local Citizen’s Advice Bureau, Shelter Scotland or his local law
centre “details of which are provided separately”.
Request for review
[3] The petitioner did nothing within the 21 day period. Mr Dailly said that ‘he put his
head in the sand’, which is a common approach for homeless persons to adopt. Eventually,
however, the petitioner went to Govanhill Law Centre. On 21 March 2018 a case worker
there sent a detailed letter to Angela Harkins, a social worker with GCC. The letter asked
for a review of the petitioner’s case to be heard out of time. It explained his financial
position and enclosed an income and expenditure statement. By return email the same day
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Ms Harkins replied “this is way out with the 21 day appeal period therefore accommodation
will be ended today, as previously advised”.
These proceedings
[4] The petitioner raised these proceedings convening Glasgow City Integration Joint
Board (‘the Board’) as the respondent. He seeks declarator that the decision of 28 December
2017 should be quashed. He no longer seeks a specific order that he be rehoused. The Board
queried whether it was the correct respondent. It obtained a letter from Mr Richard Fisher, a
senior solicitor who has acted for GCC over many years. He provided his view that GCC
and not the Board had legal responsibility for the decision. The petitioner took a different
view and continued with the present application. There are three issues for decision. First,
who has legal responsibility for the decision? Second, did the petitioner exhaust all his
statutory remedies? Third, was the decision unlawful?
Statutory framework
Homelessness
[5] Part II of the Housing (Scotland) Act 1987 provides a lattice of rules about
homelessness in Scotland. It imposes certain obligations on local authorities who must, in
exercising their functions under the Act, have regard to any guidance given by the Secretary
of State: section 37. The minister has issued the Code of Guidance on Homelessness. It
states that, in determining whether an individual is intentionally homeless, the local
authority should have regard to a number of factors. They include the following:
a. an applicant must have deliberately done or failed to do something which
resulted in homelessness or threatened homelessness,
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b. Even if the applicant seems to be homeless only because of his or her financial
or other imprudence or lack of foresight, it should not be automatically
decided that the homelessness was intentional.
c. It should not be assumed automatically that an applicant is intentionally
homeless when they have lost their accommodation because of rent arrears.
Reasons should be fully explored and decisions made as to whether arrears
resulted from deliberate acts or omissions.
Responsibility for homelessness
[6] Section 14 of the Public Bodies (Joint Working) (Scotland) Act 2014 (‘the 2014 Act’),
introduced integration joint boards, of which the respondent is one. The Scottish Parliament
sought to integrate the strategy of health and social care. In particular, it aimed to improve
outcomes for patients, service users, carers and their families. It required health boards and
local authorities to work together with the aim of agreeing a model of integration between
them. The steps that were taken to implement these arrangements are complicated. The
integration scheme delegated GCC’s functions under part 2 of the 1987 Act to the Board. On
6 February 2016 there was a retransfer of functions. The Board directed GCC to carry out
the duties under part II of the 1987 Act.
1. Who is legally responsible for the decision?
[7] I am satisfied that GCC was the decision maker, accordingly it should have been
convened as the respondent. Only the actual decision maker can be made subject to review:
do not accept Mr Dailly’s carefully presented argument under sections 25 and 26 of the
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2014 Act that GCC acted as the Board’s agent in making the decision. The Board is involved
in overall strategy, not in individual decisions. It has no employees and it would have far
reaching ramifications if it were it to be held liable for all decisions made under its
procedures. In arriving at this conclusion that there was no relationship of principal and
agent, I feel a great deal of sympathy for Mr Dailly. It is far from clear who should have been
convened as the respondent. Matters were further complicated by the decision letter
purporting to come from another entity altogether, Glasgow City Health and Social Care
Partnership.
2. Has the petitioner failed to exhaust all other remedies?
[8] Mr Campbell argues that the petition is incompetent for a second reason. He
contends that the petitioner should have made his application for review within the 21 day
period, “or such long a period as the authority may allow” as set down by section 35(a) of
the 1987 Act. Mr Campbell adds that the petitioner ought properly to have sought review of
the decision of 21 March.
[9] The jurisprudence on this point is conveniently summarised as follows: “As a
general proposition it may be said that judicial review is not available if there is an
alternative means of relief open to the applicant” Clyde and Edwards Judicial Review,
paragraph 12.01. That statement is supported by a long line of authorities stretching from
Dante v The Assessor for Ayr [1922] SC 109 to RCS 58.31. It is also clear, however, that
exceptional circumstances may justify a departure from the general rule: BRB v The
Corporation of the City of Glasgow [1976] SC 224, Tarmac Econowaste Limited v The Assessor for
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judicial review. In Ingle v Ingle’s Trustee [1999] SLT 650 at 654D-F, the Second Division
stated:
“Judicial review remains an equitable remedy and the court will only exercise its
power when it is fair and reasonable to do so. Just to take one example to illustrate
this, justice involves fairness to all parties to the litigation so that the court may well
not regard a substantial injustice as occurring if the party complaining had brought it
on himself by his own conduct and the result of remedying it would be unfair to the
other party in the litigation.”
Before arriving at a decision on this second issue it is therefore important to consider
whether there is a flaw in the original decision. That may have an impact on this second
question.
3. Was the original decision flawed?
[10] By way of background the petitioner did not have the benefit of independent advice
until he went to Govanhill Law Centre which is a trading name of Govan Law Centre. In
particular, he did not have representation before the sheriff in the eviction proceedings. The
petitioner contends that a person in receipt of JSA of £69 per week could not afford to pay
rent arears at the rate of £12.75 per week. As a comparison, the Department of Works and
Pensions operates a third party deduction scheme for social and private landlords. It
permits a maximum deduction at source of 5% of benefit entitlement to be paid directly to
such a landlord from social security benefits. In the petitioner’s case that would have been
£3.45 per week.
[11] Turning to the decision letter itself, it is not apparent that GCC fulfilled any of the
steps mentioned in the Code to investigate the cause of the petitioner’s homelessness. No
reasonable reader could draw that inference. Instead he or she would deduce that GCC had
made an automatic assumption without inquiry, contrary to the guidance. The
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Supreme Court has recently reaffirmed that adequate reasons must be provided in
GCC does not satisfy that test. Its reasons were inadequate.
Conclusion
[12] I hold that not only was the original decision invalid, but that the circumstances are
exceptional. That allows a departure from the normal rule that all other remedies must be
exhausted. I note that the petitioner sought a review as soon as he received independent
advice and that no other route is now open to him. So on the merits I find in his favour. Of
course given my ruling that the respondent should have been GCC this does not avail him. I
refuse the petition on that narrow point. I hope, however, that GCC reads this decision with
care. It would be unfortunate if another petition had to be raised and argued on the same
grounds.