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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McAuley & Anor, Re Petition for Judicial Review [2003] ScotCS 208 (22 July 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/208.html Cite as: 2003 SCLR 885, [2003] ScotCS 208 |
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OUTER HOUSE, COURT OF SESSION |
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P1082/02
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OPINION OF LADY SMITH in Petition of JOHN McAULEY AND FIONA STEWART Petitioners; for Judicial Review of a decision of Highland Council dated on or about 14 June 2002 not to make accommodation available to the Petitioners ________________ |
Petitioners: O'Carroll; Anderson Strathern, W.S.
Respondents: McCreadie; Biggart Baillie
22 July 2003
[1] In this case the petitioners seek reduction of the respondents' decision dated on or about 14 June 2002 to the effect that they were intentionally homeless. They live together as man and wife and are aged 56 years and 53 years, respectively. The second petitioner has had a stroke and is disabled. The first petitioner used to be a heroin addict.The facts:
[2] The background facts, which were largely undisputed, were that the petitioners used to live in a house at 6 Whitehills Avenue, Airdrie. The house was owned by them jointly, having been purchased under the right to buy scheme with the assistance of a mortgage from the Scottish Building Society. They left Airdrie in November 2000 and went to live with a friend, Caroline Brown, at 71, Milnafua, Alness, Ross-shire. Caroline Brown occupied that house as a tenant of the respondents. Her rent was paid through Housing Benefit which appears to have been reduced as intimation was made to the respondents that she had two non dependent adults sharing the house with her. [3] After moving to Alness, the first petitioner received treatment for his addiction. He is now drug -free and has been discharged from the local rehabilitation team. [4] On 10 July 2001, the Scottish Building Society obtained a decree of repossession in respect of the house in Airdrie, they having become aware that the house had been abandoned. They sold the house at some point thereafter and realised net free proceeds of £4,000 which were distributed to the petitioners. At some point, the timing of which was not clear, the petitioners had told the respondents that their house had been repossessed due to arrears of mortgage payments but it seems that their mortgage account was not in arrears at the time they left Airdrie. [5] On 25 July 2001, when the petitioners were still living with Caroline Brown, the first petitioner made some enquiries of the respondents to see whether he had any rights of succession to her house. It was explained to him that he did not. On 12 August 2001, Caroline Brown terminated her tenancy and left the house at 71, Milnafua but the petitioners carried on living there. The respondents took action thereafter to recover possession of the house and obtained decree of removing against the petitioners on 5 September 2002. The petitioners moved out of the house and the respondents provided them with temporary accommodation at 62 McKenzie Place, Dingwall, where they remain at present, pending the resolution of the present dispute. [6] The petitioners applied to the respondents for housing on the grounds that they are homeless, of priority need on account of the second petitioner's disability and had not become homeless intentionally. Their application was considered by the respondents who found that they were homeless and of priority need but that they had become homeless intentionally, having voluntarily given up their accommodation in Airdrie. The application was considered and rejected by, initially, an Accommodations Officer, was thereafter considered and rejected by the Director of Housing on 12 December 2001 and was subsequently considered and rejected by the respondents' Ross and Cromarty Committee on 21 May 2002. [7] At all stages in the consideration of their application the petitioners contended that they had left Airdrie due to harassment, threats and violence directed at them and their home to which they were subjected whilst living there. It was, accordingly, argued on their behalf by the Senior Fieldworker of the Scottish Homelessness Advisory Service, Joyce Stewart, who represented them, both by way of written submission and oral argument, that they had not become homeless intentionally on leaving Airdrie. The respondents appear to have rejected the petitioners' contention that they were subject to such harassment and the rejection of that contention appears to have led to their determining that the petitioners became homeless intentionally.
The petitioners' submissions:
[8] Mr O'Carroll, counsel for the petitioners submitted that the respondents had fallen into error in three respects. Firstly, they had failed to consider the circumstances surrounding the petitioners' occupation of 71, Milnafua, Alness. The respondents had a duty of inquiry in terms of section 28 of the Housing (Scotland) Act 1987 ["the 1987 Act"]. They had failed in that duty in respect that they failed to establish what was the intention of the petitioners when they moved to that house, what the arrangements were between them and Caroline Brown regarding their occupation, what they knew of Caroline Brown and her intentions and, generally, how permanent the petitioners expected their occupation of 71, Milnafua to be. He submitted that their failure to go through that process invalidated the decision that was ultimately made. [9] Secondly, he submitted that if the view was taken that the respondents had in fact given adequate consideration to the circumstances surrounding the petitioners' occupation of 71, Milnafua and on doing so, they considered that the petitioners' occupation of that house did not break the chain of causation flowing from their giving up occupation of the house in Airdrie, then they should have examined the whole circumstances in which the petitioners left that house in November 2000. Their decision, in the light of those circumstances, was irrational and unreasonable in respect that they had arrived at it by failing to take account of relevant factors, namely information placed before them regarding the harassment of the petitioners at their home in Airdrie. He submitted that, in particular, they failed to take account of the content of three letters from neighbours in Airdrie that were placed before them which were supportive of the petitioners' contentions. The respondents' Ross and Cromarty committee approached matters on the basis that they could not take account of non-corroborated hearsay evidence and that was unwarranted. [10] Thirdly, he submitted that, in respect that the respondents appeared to have made a finding that the petitioners had no local connection with their area, that was a decision that they were not entitled to reach because they had failed to address the question of where it was that the petitioners were normally resident at the time of their application, as was required of them in terms of section 27 of the 1987 Act, as confirmed in the case of Mohammed v Hammersmith and Fulham London Borough Council 2001 UKHL 57; 2002 1AER. In any event, the question of local connection is not one which is relevant to the consideration of whether or not a person is intentionally homeless.The respondents' submissions:
[11] Mr McCreadie, counsel for the respondents, began his submissions by founding upon Lord Brightman's dicta in the case of R v Hillingdon London Borough Council ex parte Puhlhofer 1 AC 484 @ 518 where he expressed the view that the discretionary remedy of judicial review should not be made use of to monitor the actions of local authorities under the legislation for the protection of the homeless save in the exceptional case, the ground of review being abuse of power in cases where it is obvious that the public body, consciously or unconsciously, acted perversely. In respect of the petitioners' submissions, he accepted that the respondents, in considering the question of local connection should have but did not look at the matter of the petitioners' normal residence as at the time of their consideration. However, questions of local connection were not relevant to the issue of whether or not the petitioners had become homeless intentionally and so did not undermine the respondents' decision on that matter. He then made various submissions on the basis of an assumption that the petitioner was seeking to argue that Caroline Brown's relinquishing of her tenancy was a supervening event that broke the causal connection that would otherwise exist between the petitioners giving up their accommodation in Airdrie and becoming homeless in Alness, albeit that counsel for the petitioner had not presented such an argument in the course of his submissions. In so doing, he referred to the cases of R v Brent London Borough Council ex parte Awua 1996 AC 55 and R v Harrow London Borough Council ex parte Fahia 1998 1 WLR 1396. A question arose, he submitted, on a consideration of those authorities, as to what exactly the nature of the residence acquired by a person after his having become intentionally homeless required to be before that person would have the advantage of only the circumstances of his leaving that second residence subjected to examination when determining whether he had become homeless intentionally. Although it had been stated in the case of Awua that the second accommodation required to be "settled" for that advantage to accrue, it had been conceded by the respondents in the case of Fahia that the "chain of causation" could be broken by means other than the obtaining of intervening settled accommodation and so the matter was in doubt. [12] As regards the duty of the respondents to inquire into the circumstances of the petitioners becoming homeless, whilst acknowledging the duty, he submitted that there was sufficient in the material before me to show that the committee had given adequate consideration to the matter of the circumstances in which the petitioners came to lose their occupation of 71, Milnafua. He referred, in particular, to the minute of the meeting of the committee [no. 6/13 of process] and the written submission lodged with the respondents on behalf of the petitioners [no.7/1 of process]. [13] As regards the petitioners' submission that the respondents had failed to take account of material factors regarding their contention that they had left Airdrie due to harassment, Mr McCreadie submitted that the key question was whether, on the information before the committee, it was reasonable to expect the petitioners to continue to occupy the house. Given the allegations and information available, it was, he submitted, open to them to conclude that it was reasonable for them to do so. The decision which they reached was, he submitted, within the reasonable band of responses that was open to them. The wording used in the minute should not be taken too technically and it should not be assumed from it that they ignored the material that was in the neighbours' letters. That material was, in any event, to some extent capable of being interpreted as hearsay of the petitioners themselves. In respect that the committee referred to the failure of the petitioners to report incidents alleged to the police and seemed to take the view that that failure detracted from the veracity of their allegations, he referred to the case of R v London Borough of Croydon, ex parte Toth 1987 20 HLR 576 as support for the submission that it is a perfectly reasonable point of view for a local authority to adopt. It was necessary to stand back and look at the overall position of the committee. Whilst it might be said that another local authority would have decided differently that was not to say that the respondents' decision was unreasonable.The legislative framework:
[14] Part II of the 1987 Act covers the subject of homeless persons. Section 24 provides that a person is homeless if:"(1)....he has no accommodation in Scotland......
and that he is to be treated as homeless if:
'( 2) .....there is no accommodation which he, together with any other person who normally resides with him as a member of his family or in circumstances in which the housing authority consider it reasonable for that person to reside with him -
(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to occupy."
"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."
"they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness."
Then, if the authority are satisfied that the person is homeless or threatened with homelessness, they have a duty, in terms of section 28(2) to inquire further and satisfy themselves as to:
"(a) whether he has a priority need , and
(b) whether he became homeless or threatened with homelessness intentionally;" .
Decision:
[18] Dealing firstly with the petitioners' submission that the respondents failed to address properly the matter of the circumstances surrounding their departure from 71, Milnafua, I am not satisfied that they did so. The reason for the petitioners making this submission appeared to be that if it had been the case that they genuinely thought, prior to moving in with Caroline Brown, that they would be able to live in her house permanently, then it would not be necessary to look at the circumstances surrounding their departure from Airdrie. The only question then would be whether their loss of the right to occupy 71, Milnafua was intentional or not. It was not, however, stated in submission that they had any such understanding nor, as can be seen from the extract from their written submission quoted below, was any such representation made to the committee. [19] Whilst it was clearly incumbent upon the committee to look at the circumstances surrounding their taking up and losing occupation of 71, Milnafua, when addressing the question of whether or not the petitioners had become homeless intentionally, I am satisfied that they did so adequately. The topic was covered in the written submission for the petitioners in which there appears the following paragraph:"I would argue that Mr and Mrs McAuley's last settled accommodation is 71 Milnafua, Alness. They were invited to stay with Mrs Brown in her council tenancy. This was around November 2000. Mr and Mrs McAuley left 6 Whitehills Avenue with no intention of returning. They gave up their home, for reasons stated in 2 above and went to stay with Ms Brown. Ms Brown gave notice of her intention to terminate her tenancy with effect from 12 August 2000. Normal notice is 28 days. Mr and Mrs McAuley had lodged with Ms Brown between 8-9 months. They then applied for succession of tenancy. They also made an application for council housing and also made a claim for housing benefit. Mr McAuley successfully completed a detox in June 2001. It would seem that it was their intention to stay in the area."
The petitioners' representative, Joyce Stewart, made oral submissions on their behalf at the committee meeting but, according to the minute [no.6/13 of process], does not appear to have added anything on this matter to that which is stated in her written submission.
[20] The committee were, in my opinion, entitled to take the view that their duty to make inquiries had been fulfilled by receiving and considering written submissions which did deal with the circumstances in which the petitioners took up occupation of 71, Milnafua and, further, by affording the petitioners' representative the opportunity to make oral submissions. The topic of the circumstances in which they came to move in with Caroline Brown are covered in the written submission and I do not see, as was suggested, that they had a duty to inquire further as to what exactly were their expectations prior to moving there regarding the permanency or otherwise of their living in her home. Nor do I see that they necessarily had, as was suggested, a duty to make enquiries of Caroline Brown. The petitioners clearly had an opportunity to make any representations that they wished to make regarding their expectations and it could reasonably have been anticipated that, through the submission that was drafted by Joyce Stewart, they would do so. Joyce Stewart is designed in the submission as being a Senior Fieldworker in the Scottish Homelessness Advisory Service which gives rise to the inference that she has expertise in this area. The committee could reasonably expect such a person to make reference to all relevant matters in any submissions put forward. The fact that the submission is silent on the matter of the petitioners' expectations prior to moving in with Caroline Brown gives rise to the inference that there was nothing that could be said about those expectations which would have been of assistance to the petitioners' case. The committee were, accordingly, entitled, in my view, to approach their deliberations on the basis that there was nothing about the circumstances surrounding the petitioners taking up and losing occupation of 71, Milnafua that meant that they need not consider whether they had become intentionally homeless when they left Airdrie. [21] Turning, however, to the matter of the committee's consideration of the circumstances surrounding the petitioners' departure from the house in Airdrie, I am satisfied that they did fail to take account of relevant material and their decision should, accordingly, be reduced. Notwithstanding Mr McCreadie's valiant attempts to persuade me to the contrary, the irresistible inference is that the committee refused, in respect of the submission that the petitioners had been driven to leave the house due to harassment and vandalism, to take account of anything other than the fact that the police in Airdrie advised, in terms of a letter dated 4 April 2002 (no. 6/3 of process), that the first petitioner had reported that a front window of his house had been smashed on three occasions, 30 September 2000, 7 October 2000, and 14 October 2000. The police appeared to have been asked only whether either of the petitioners had reported violence or harassment at their address in Airdrie. [22] The above inference is one which falls to be drawn from the terms of the minute of the committee meeting (no.6/13 of process). In that minute it is recorded that Ms Stewart, on behalf of the petitioners, sought to argue that the respondents should base its decision on grounds of reasonableness having regard to the second petitioner's state of health, the incidence of bricks being thrown through their windows, vigilantes creating harassment to the petitioners and their property, that the first petitioner had explained that there were considerably more incidents than were known to the police since he had refrained from reporting all of them, for fear of being a "grass" and also having regard to the support for the petitioners contentions that was provided in the three letters from neighbours . [23] The letters to which Ms Stewart referred had been presented to the committee by her at the beginning of the meeting. It was evident from the terms of her written submission (no.7/1 of process) which had been lodged prior to the meeting, that she had sought support for the petitioners' contentions of harassment and vandalism from neighbours. The letters were lodged in this process as numbers 6/4, 6/5 and 6/6. They bear to be from the persons who lived on either side of and across the road from the petitioners in Airdrie. All the letters appear to lend support to the petitioners' contentions that they were being harassed and their home was being vandalised. Whilst it is not clear whether the support afforded by the letters 6/4 and 6/5 derives from direct knowledge on the part of their authors, the terms of letter 6/6 are such that it is clear that its author is referring to having witnessed occasions of threats and vandalism directed to the petitioners and their property to the extent that she had herself telephoned the police on "a few occasions". She also refers to a particular occasion which frightened her when "a crowd of youths gathered outside their home, shouting that they were going to burn them out." She advises that she needed treatment "for her nerves" after that occasion. [24] The committee minute records, however, immediately after the reference to Ms Stewart submitting that regard should be had to the "evidence of support from neighbours", the following:"The Chairman at this stage advised that the Committee could only base its decision on corroborated evidence and not on hearsay evidence."
Then, in paragraph 4 of the passage in which the committee's reasons for refusing the petitioners' application are recorded, there is further reference to the letters from neighbours as follows:
"4. That although the Appellants had produced letters from neighbours which narrated incidents of intimidation, no corroborating evidence had been produced from Airdrie Police. Enquiries to Airdrie Police revealed three incidents of vandalism within a two- week period but their records did not reveal any incidents of intimidation or threats of violence to the Appellants or any record of the Appellants having complained of such incidents."
