“An inquiry into local authority duties to the homeless: Dafaalla v City of Edinburgh Council” – article for the Juridical Review

I have a Case and Comment piece in the new issue of the Juridical Review, the law journal of the Scottish universities, on a recent judicial review action relating to homelessness law.

On 5 July 2022, the Inner House of the Court of Session refused a reclaiming motion (i.e. an appeal) by City of Edinburgh Council, and approved an earlier Outer House decision to the effect that it had not fulfilled the statutory duties it owed to a homeless person (and his family). Here is a PDF of the opinion of Lady Dorrian for those who wish to go straight to the source.

The obligations of local authorities flow from the Housing (Scotland) Act 1987, the home of Scotland’s homelessness regime. In terms of that statute (as amended), there is a duty on all local authorities to investigate the circumstances of someone who applies to them for accommodation or assistance to obtain accommodation where they have reason to believe they are homeless or threatened with homelessness. Further, they must offer temporary accommodation and, if eligible, permanent accommodation to applicants.

In this case of Dafaalla v City of Edinburgh Council the applicant was seemingly eligible for accommodation, but had refused previous offers of permanent accommodation from the relevant local authority and had in fact been removed from temporary accommodation in January 2020. He then applied again at the start of the pandemic in March 2020, noting his medical conditions put him at increased risk of severe illness should he contract coronavirus and making his current arrangement where he and his family resided where they could from night to night untenable. The local authority did not entertain this fresh application, being of the view that its duties under the homelessness legislation were spent. As noted above, and as discussed in more detail in the article, the Outer House and then the Inner House of the Court of Session disagreed, ruling that the local authority remained bound by the statute and as such just because someone had refused accommodation in the past that did not mean they would never be able to get accommodation ever again in the future.

This was the first time the matter of what might be termed repeat applications came before a Scottish court. There has been some English case law though. Whilst there are some differences with the Scottish and English homelessness regimes – a point that led to some discussion in proceedings – the general similarity and shared history of homelessness law in Great Britain means English authorities can often be used in Scotland. The relevant English decisions developed a principle as to when an apparently new (further) application by someone for accommodation could be treated as “no application”. In the circumstances of a local authority receiving such a repeat application, the local authority can only be taken to be complying with its obligations under the homelessness legislation if that further application was based on the same facts as the one that preceded it. Applying that to the case at hand, Lady Dorrian was of the view the local authority here was wrong to not open up inquiries in relation to this particular repeat application.

The case has been welcomed in some quarters. Unsurprisingly, Shelter Scotland were amongst those putting the kettle on and declaring the case very welcome indeed, per this piece by Fiona McPhail in Scottish Legal News. That being said, there are some potential resourcing concerns for local authorities, particularly in relation to the provision of temporary accommodation whilst inquiries are being made. That duty will now unquestionably apply for a repeat applicant unless that person’s application is patently the same application as the one they made previously. Resourcing challenges aside though, there are wider policy and legal pushes towards adopting a sympathetic approach to the generally narrow category of those who genuinely do need to make repeat applications, including a backdrop of human rights instruments such as the right to “an adequate standard of living…including housing” (through the International Covenant on Economic, Social and Cultural Rights, Article 11).

All of this is discussed in the article which is available on Westlaw or in your local law library, with the citation Malcolm M Combe, “An Inquiry into Local Authority Duties to the Homeless: Dafaalla v City of Edinburgh Council” 2022 Jur. Rev. 167. I’m afraid it is subject to an embargo for the next year, at which point an open access version will appear on Strathclyde’s academic repository.

Finally, I’d like to think Peter Robson, Adrian Stalker and David Anderson for their comments on the article. This was my first dalliance with homelessness law for a publication and I am grateful to them all for their time.

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About basedrones

Bachelor of Laws. Scots academic lawyer. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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