X AGAINST GLASGOW CITY COUNCIL [2022] ScotCS CSOH

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> X AGAINST GLASGOW CITY COUNCIL [2022] ScotCS CSOH_35 (27 April 2022) URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_35.html Cite as: [2022] CSOH 35, [2022] ScotCS CSOH_35, 2022 GWD 13-207, 2022 Hous LR 26, 2022 SLT 554

OUTER HOUSE, COURT OF SESSION

[2022] CSOH 35

P733/21

OPINION OF LORD ERICHT

In the cause

Petitioner

against

GLASGOW CITY COUNCIL

Respondent

Petitioner: Dailly (sol adv); Drummond Miller LLP

Respondent: Graham Middleton, Harper Macleod LLP

27 April 2022

[1]

The central issue in this Judicial Review is whether a local authority is under an

absolute legal obligation to provide accommodation which is suitable for occupation by a

homeless household, taking into account the needs of a household. The petitioner says it is.

The respondent says that it is not: the respondent has a discretion to balance the needs of

the household against other demands on the respondent's finite resources.

The facts

[2]

The petitioner's household consists of the petitioner, the petitioner's husband, three

daughters aged 14, 12 and 10 and a son aged 12.

[3]

On 4 February 2020 the petitioner and her husband were notified by the Home Office

that they had been granted refugee status. Prior to that, they had been residing at

accommodation provided by the Home Office. The effect of granting refugee status was

that the petitioner and her family were no longer entitled to Home Office accommodation.

Instead they became homeless persons and the obligation to house them passed to the

respondent as the local authority. The respondent provided them with temporary homeless

accommodation. That accommodation was in a four apartment property.

[4]

The petitioner's son has been diagnosed as autistic. He is disabled within the

meaning of section 10 of the Equalities Act 2010.

[5]

The respondent conducted an investigation of the petitioner's housing needs. The

assessment was conducted by Jacci Bickerstaff, an occupational therapist. Her report dated

21 July 2021 was headed:

"Homeless Occupational Therapy Service

Housing Needs Recommendations"

The report included the following:

"[the petitioner] does not want a ground floor property despite having difficulty

with stairs. She was observed as managing 15 steps utilising a handrail to assist,

however, she needed to rest due to breathlessness. They are open to styles of

property but should a 2 storey property be offered, it is likely that a downstairs toilet

will be required. This family need a 5 apartment property in order to accommodate

their son's additional support needs and a garden would also be beneficial with

regard to this." (Emphasis added).

[6]

Despite the respondent's assessment that the family needed a five apartment

property in order to accommodate their son's additional needs, the respondent continued

to house them in a four apartment property. On 10 August 2021, the petitioner's solicitor

wrote to the respondent requesting that it urgently review the suitability of the current

accommodation and outline its plans to move the family to alternative housing as a matter

of urgency.

[7]

The respondent's Jackie Gordon, senior homeless worker, replied on the same day

stating:

"I write with reference to the concern you raised regarding your clients ... and

... temporary accommodation while awaiting a permanent offer of housing.

It has not been possible to provide a further temporary furnished flat (TFF) at this

stage due to a lack of this type of accommodation becoming available. As you will

be aware this Local Authority does not maintain its own housing stock and is reliant

on third party providers such as Responsible Social Landlords otherwise known as

Housing Associations. There are significant pressures on resources currently and

unfortunately a TFF transfer has not been available.

Unfortunately, the Team have found it extremely difficult to secure an offer of settled

housing for the family due to their requirement for a 5/6 apartment property.

This problem is not unique to your client and affects all larger families who are

currently in Temporary Homelessness Accommodation, since there is a very limited

supply and turnover of larger properties in the Housing Association sector in

Glasgow. This in turn, unfortunately, means that in general larger households

require to wait substantially longer for an offer of settled housing than other

households.

The areas in which the family have chosen either have been no six apartments or

some of the areas have very few properties of five apartments. Due to the pressures

which we are under we would expect a degree of flexibility in relation to rehousing

areas.

In regards to the children's school there is adequate school provision throughout

Glasgow for the children to attend whilst in temporary accommodation.

In addition, I have asked Billy Fulton to discuss with your client to consider options

in relation to the Private Rented Sector through our `Glasgow Key Fund Service'

operated by Y People, this can work well for larger households as it gives added

degrees of choice and availability."

[8]

The reference to the Glasgow Key Fund was a reference to a scheme that assists

people looking for accommodation to make their own arrangements to enter into a private

let of property with a private landlord. It is not relevant to the subject matter of this petition

which is about the provision of accommodation by the local authority, not private

arrangements made by the petitioner.

[9]

The caseworker assigned to the petitioner was William Fulton. He provided an

affidavit, from which it was clear that he was not unsympathetic to the petitioner and her

family and had been doing his best to assist them. However, the difficulty which he faced,

and which formed the basis of Ms Gordon's decision letter 10 August, was set out in his

affidavit:

10. Glasgow City Council does not have its own housing stock. Glasgow City

Council transferred all its housing stock as part of a stock transfer process on

3 March 2003. The stock was transferred to Glasgow Housing Association and

since that time some of it has been transferred to other registered social landlords.

This means that Glasgow City Council gets the houses it uses for interim

accommodation from registered social landlords. It also means that the offers

of permanent accommodation are offers secured from registered social landlords.

Registered social landlords will usually cooperate with Glasgow City Council in

making both interim and permanent accommodation available. However, what

Glasgow City Council receives is dependent on what registered social landlords

have available....

13. This a five apartment case. That means that the permanent accommodation that

is eventually secured must be a five apartment house: four bedrooms and a living

room....

15. The difficulty with a five apartment case is the scarcity of five apartment

accommodation. Five apartment accommodation is generally occupied by

permanent tenants and becomes available when someone passes away or moves.

It can take a very long time to get an offer of five apartment accommodation, even

longer if a person will not consider offers outwith specified areas. In respect of

[the Petitioner's] application, no five apartment houses have become available

during the time of her application. I check this at intervals. Even if one did become

available, it is by no means certain that it would be offered to [the Petitioner] as

there will be families in similar circumstances who have earlier homelessness

application dates. There are larger families who would need a five apartment as

interim accommodation while waiting for an even scarcer six apartment. All this

means that it could be many months or more than a year before a five apartment

house becomes available to [the Petitioner] and her family.

16. I asked registered social landlords in the [area where the Petitioner's family

lives and goes to school] about their turnover of five apartment houses. Sanctuary

Housing Association stated that they have around 9 five apartments in [that area]

but had not let any in over 10 years. GHA told me that they had let only one five

apartment house in [that area] since March 2016. [That area] is not a particularly

unusual area. There will be other south side area that are more highly sought after.

This should give some idea of the rate at which five apartment houses become

available....

27....There is certainly no five apartment interim accommodation within the

preferred areas and there is unlikely to be any soon...."

Statutory provisions and Scottish Government guidance

[10]

Section 29 of the Housing (Scotland) Act 1987 provides:

"29. -- Interim duty to accommodate.

(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)

...

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.

(3) In subsection (1), `accommodation', in the first place where the expression

occurs, does not include accommodation of such description as the Scottish

Ministers may, by order made by statutory instrument, specify.

(4) Such an order may--

(a) specify any description of accommodation subject to conditions or

exceptions,"

[11]

Section 31 provides:

"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 on ground of local connection) secure that

[permanent] accommodation becomes available for his occupation."

[12]

In exercise of their powers under section 29(3), the Scottish Ministers have specified

unsuitable accommodation which is not included within the definition of "accommodation".

The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 ("the 2014 Order")

provides:

"3. This Order applies to accommodation provided to an applicant under section 29

of the 1987 Act (interim duty to accommodate an applicant who may be homeless).

4. In all circumstances, accommodation is unsuitable if it is--

(a) not wind and watertight;

(b) not suitable for occupation by a homeless household, taking into account

the needs of the household; or

5. ... accommodation is also unsuitable if it--

(b) is not in the locality of facilities and services for the purposes of health

and education which are being used, or might reasonably be expected

to be used, by members of the household, unless those facilities are

reasonably accessible from the accommodation, taking into account the

distance of travel by public transport or transport provided by a local

authority;

facilities for the exclusive use of the household which meet the

accessibility needs of the household"

[13]

The Scottish Ministers have published a code of guidance to help guide local

authorities in their duties to assist people who are threatened with or who or are

experiencing homelessness. The Homelessness: code of guidance includes the following:

"Homelessness: code of guidance

Annex A: Advisory Standards for Temporary Accommodation

This guidance provides a set of advisory standards to be applied by local authorities

to their temporary accommodation and also to any temporary accommodation

provided from other providers. These standards relate to all types of temporary

accommodation including Bed and Breakfast, to ensure that the quality of temporary

accommodation is of good standard and to meet the needs of the household.

Local Authorities across Scotland utilise a diverse portfolio of temporary

accommodation beyond bed and breakfast accommodation including local authority,

housing association and private rented stock as well as hostels. The majority of

people who are homeless are housed on a temporary basis in the social rented sector.

The following details the physical standards that should apply where appropriate

across all tenures to ensure that temporary accommodation is an adequate, safe and

secure space for the household. The temporary accommodation should:

Be accessible and able to meet the needs of any disabled person within the

household;

Have adequate toilet and personal washing facilities for the exclusive use of

the household;

When considering offering a household temporary accommodation it is important to

discuss with the household the location of the property and its proximity to services

and local amenities.

Accommodation provided should be located so that the main essential services

used by a household can be reached by foot, by public transport or by transport

provided by a local authority. Services to include education/school/nursery,

supermarket or convenience store, doctors, dentists, support or other health

providers and advice agencies (where applicable);

The location of the property should also take into account the needs of all

household members in terms of reasonable access to place of employment

and formal or informal support networks."

Submissions

[14]

The solicitor advocate for the petitioner submitted that the accommodation provided

by the respondent did not conform to the 2014 Order. The current accommodation did not

meet the petitioner's son's needs as a disabled person. He further submitted that the

explanation given in the 10 August 2021 letter for failure to provide suitable accommodation

was irrational and Wednesbury unreasonable. The respondent can source temporary

homeless accommodation privately or commercially and is not restricted to registered social

landlords as a matter of law. No reasonable local authority would decline to take action

where the accommodation was unsuitable in terms of the 2014 Order.

[15]

Counsel for the respondent submitted that the wording of Article 4(b) of the

2014 Order did not have the effect of imposing an obligation upon the respondent to

provide accommodation that meets the needs of the household in question. In contrast to

Articles 4(a) and (c) it did not define accommodation as unsuitable with reference to any

fixed standard but merely requires that the needs of the household be taken into account. It

conferred a discretion upon the respondent. Provided the respondent had properly taken

into account the needs of the household in deciding whether temporary accommodation

was suitable, that temporary accommodation would not be deemed unsuitable pursuant to

Article 4(b). Further, Parliament must have been taken to be aware of the fact that a local

authority's resources are limited and it is impossible for a local authority to fulfil every

conceivable need (R v Barnet London Borough Council [2004] 2 AC 208 at paragraph 30, 75,

81-82). On a true construction, Article 4(b) conferred a discretion on a local authority to

balance the needs of the petitioner's household against the other demands on the authority's

finite resources. Further, section 29(1) c of the 1987 Act provided that a local authority may

provide temporary accommodation under section 29 which did not meet the description.

The legislation clearly envisaged that temporary accommodation may not meet the

particular requirements of an applicant for permanent accommodation.

[16]

Counsel further submitted that the respondent had discharged its duty under 29

by taking into account the needs of the petitioner's household: the decision-maker took

account of the petitioner's preference for locality, took account of the requirement to have

four rooms which could be used as sleeping accommodation and continues to endeavour

to provide the petitioner with temporary accommodation that, as far as possible within

the constraints of the respondent's finite resources, meets the needs of the petitioner's

household. Counsel further submitted that the property is a four apartment property which

would allow the petitioner's son to have his own bedroom if two of his sisters shared a room

and therefore meets the needs of the household on a temporary basis.

[17]

Counsel further submitted that the respondent's duty was to have regard to the

guidance, which did not itself confer any duties upon the respondent or absolute rights on

the petitioner. An inference that the respondent failed to have regard to the guidance ought

not to be drawn readily (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at

paragraph 36). The decision-maker had regards to the needs of the petitioner's son and

proximity to support networks. The fact that the respondent was not able to offer the

petitioner a five apartment property in one of the petitioner's preferred areas was not a

basis for drawing an inference that the respondent had failed to have proper regard to the

guidance.

Analysis and decision

[18]

How a local authority prioritises its finite financial resources is in general a matter

for the council members, who are accountable to the local electorate (R v Barnet London

Borough Council paras [11], [75]). However, as Lord Nicholls explained in that case:

"12.

The ability of a local authority to decide how its limited resources are best

spent in its area is displaced when the authority is discharging a statutory duty as

distinct from exercising a power. A local authority is obliged to comply with a

statutory duty regardless of whether, left to itself, it would prefer to spend its money

on some other purpose. A power need not be exercised, but a duty must be

discharged. That is the nature of a duty. That is the underlying purpose for which

duties are imposed on local authorities. They leave the authority with no choice.

13.

The extent to which a duty precludes a local authority from ordering its

expenditure priorities for itself varies from one duty to another. The governing

consideration is the proper interpretation of the statute in question. But identifying

the precise content of a statutory duty in this respect is not always easy. This is

perhaps especially so in the field of social welfare, where local authorities are

required to provide services for those who need them. As a general proposition, the

more specific and precise the duty the more readily the statute may be interpreted as

imposing an obligation of an absolute character. Conversely, the broader and more

general the terms of the duty, the more readily the statute may be construed as

affording scope for a local authority to take into account matters such as cost when

deciding how best to perform the duty in its own area. In such cases the local

authority may have a wide measure of freedom over what steps to take in pursuance

of its duty."

[19]

That quotation neatly identifies the problem in the current case: is there an absolute

duty on the respondent to provide accommodation that is suitable for the needs of the

petitioner's autistic child, or does the respondent have freedom not to do so?

[20]

At first sight, it might be thought that as the facts are similar the answer is to be

found by coming to the same decision as in R (A) v Lambeth London Borough Council

[2004] 2AC 208 (conjoined with R v Barnet London Borough Council). The claimant in

the Lambeth case was a single mother with autistic children. The local social services

authority assessed the autistic children's needs and concluded that the family needed to

be rehoused in accommodation which was away from the road, had an outside play area

and was larger. The claimant sought an order against the local social services authority

compelling it to provide suitable accommodation in accordance with the children's

assessed needs. The court refused to grant such an order.

[21]

However, matters are not as simple as that as each case must turn on the wording of

the particular statutory provision setting out the duty applicable in the particular case. The

result in R (A) v Lambeth London Borough Council cannot simply be read over and applied in

the present case. The duty sought to be enforced in R (A) v Lambeth London Borough Council

was the general duty on English local authorities under section 17(1) of the Children

Act 1989 which states:

"(1)

It shall be the general duty of every local authority....

(a) to safeguard and promote the welfare of children within their area who

are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such

children by their families, by providing a range and level of services

appropriate to those children's needs."

[22]

That duty is expressed in general and wide-ranging terms. It is very different from

the wording of the specific duty in relation to homelessness which is sought to be enforced

in this judicial review.

[23]

The duty relevant to this particular case can be found in section 29 of the 1987 Act

which states:

"29. -- Interim duty to accommodate.

(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...."

[24]

By virtue of section 29(3) and the 2014 Order, certain unsuitable accommodation is

excluded from the meaning of the word "accommodation" in section 29(1). Article 4 of the

2014 Order makes the following exclusion from the meaning of the word "accommodation"

in section 29(1):

"In all circumstances, accommodation is unsuitable if it is--

(a) not wind and watertight;

(b) not suitable for occupation by a homeless household, taking into account

the needs of the household; or

[25]

The issue in this case is whether section 29 taken together with Article 4(1) (b)

constitute an absolute duty on the respondent, or whether the respondent has the freedom

not to give effect to these provisions.

[26]

Section 29 states the local authority "shall secure that accommodation is made

available." Article 4 of the 2014 Order states that "in all circumstances, accommodation is

unsuitable if [the circumstances in 4 (a) (b) or (c) apply]." In my view the specific and

precise wording of these provisions is a strong indication that they should be interpreted as

imposing an obligation of an absolute character.

[27]

The respondent sought to draw a distinction between on the one hand Article 4(a)

(wind and watertight) and 4(c) (safety standards) and on the other Article 4(b) (suitable for

occupation by household taking into account their needs). Its position was that 4(a) and 4(c)

were of an absolute character and gave rise to an absolute duty and 4(b) was not and the

respondent had the freedom to depart from it. I do not accept that distinction. There is

nothing in the structure of the Act which suggests that 4(b) should be treated differently.

4(a), (b) and (c) all fall under the obligation under section 29 that the respondent "shall"

provide accommodation: section 29 does not say that the respondent shall provide

accommodation which is not excluded under (a) and (c) but may provide accommodation

which is excluded under (b). Nor is there anything in the structure of Article 4 which

suggests that 4(b) should be treated differently from 4(1) (a) or (c): 4(b) comes in the middle

of a list of absolute duties and there is nothing which identifies it as being of a different

character from the rest of the list.

[28]

Article 4(b) refers to accommodation which is "suitable for occupation by a homeless

household, taking into account the needs of the household" (Article 4(1)). In some

circumstances a statutory provision referring to "needs" may be too open-ended to found an

absolute duty. In R v Barnet London Borough Council for example, Lord Nicholls found that

section 17(1) of the Children Act 1989 did not impose an absolute duty on authorities to

meet the specific needs of every child who was in need, whatever these needs may be

(paragraph 30), and Lord Hope stated that it was impossible for the authority to fulfil every

conceivable need (paragraph 74). However these concerns do not arise in the present case

where the needs are not of the wide ranging general nature which could arise under

section 17(1) but are specifically restricted to housing needs. The housing needs of a

homeless family are not open-ended and are capable of being assessed and being met.

Indeed the respondent has itself made such an assessment of the petitioner's family and

concluded that the family need a five apartment property in order to accommodate their

son's additional support needs.

[29]

The respondent submitted that the phrase "taking into account" was not language

apt to confer an absolute right to be provided with accommodation which met the needs of

the household, but conferred a discretion on the local authority to balance the needs of the

household against other demands on the authority's finite resources. I do not agree. Read

in the context of section 29 and Article 4 as a whole, the phrase does not displace the

absolute statutory duty under section 29 and replace it with a discretionary balancing

exercise whereby the authority is required to weigh up the household's needs against other

calls on the authority's resources. The words "taking into account the needs of the

household" in Article 4(b) merely indicate that the needs of the household are a factor to be

considered in deciding whether accommodation is suitable for occupation by the household.

If the household has a need for a five bedroom apartment, then that is the accommodation

which is suitable for that household and which the authority is obliged to provide.

[30]

The respondent also submitted that the effect of section 29(1) (c) was that the

respondent is entitled to provide unsuitable temporary accommodation. Again I do not

agree. Section 29(1) (c) does not stand in isolation and section 29(1) must be read as a whole.

The obligation under section 29(1) is to "secure that accommodation is made available".

Unsuitable accommodation is excluded from the definition of "accommodation" and

therefore does not satisfy the obligation under section 29(1). The structure of section 29(1)

demonstrates that section 29(1) (c) is subsidiary to, and in implementation of, the duty under

section 29(1) to provide suitable temporary accommodation. There is nothing in the

wording of section 29(1) (c) which disapplies the obligation under section 29(1) to provide

suitable temporary accommodation. Accordingly, section 29(1) (c) does not override the

duty under section 29(1) to provide suitable temporary accommodation.

[31]

Accordingly, I find that the respondent is under an absolute duty to provide

temporary accommodation to the petitioner which is suitable for occupation by the

petitioner's household, taking into account the additional support needs of the petitioner's

son. To put it in another way, the respondent is under an absolute duty to provide a five

apartment property.

[32]

As this duty is an absolute one, the respondent is not entitled to avoid compliance

with its duty for reasons such as those set out in its letter of 10 August 2021 i.e. that it is

reliant on third party providers or that there were significant pressures on resources. As

Lord Nicholls made clear in the passage quoted above, a local authority is obliged to comply

with an absolute duty regardless of whether or not it would prefer to spend its money

otherwise: the authority has no choice.

[33]

That is enough to determine this case. It is not necessary for me to consider

separately the parties arguments on irrationality as these stand or fall by the decision on

the section 29 duty. However I shall address briefly the arguments advanced under the

Equality Act 2010.

Equality Act 2010

Submissions

[34]

The petitioner submitted that in exercising its homelessness functions to the

petitioner under section 29 of the 1987 Act the respondent ought to have made a reasonable

adjustment by providing a five apartment or larger property to meet the petitioner's son's

needs as a disabled child. This would have ensured the petitioner's accommodation was

suitable for her disabled child in terms of sections 20 and 29 of the 2010 Act. It would have

prevented her son being placed at a substantial disadvantage due to his disability in

comparison to a person who is not disabled. His autism means that having to share a

bedroom with his sister adversely effects on his health and wellbeing. The respondent is

under a public sector equality duty in exercising its duties under section 29 and has failed to

carry out that statutory duty.

[35]

Counsel for the respondent submitted that the public sector equality duty in

section 149 of the 2010 Act was not a duty to achieve a result, but a duty to have regard to

the need to achieve the goals (Hotak v Southwark LBC [2015] 2 W L R 1341 at 74). Failure to

provide the petitioner with a five apartment property cannot itself amount to breach by the

respondent of its duty under section 149 and on the contrary the respondent's decision

making process was entirely compatible with the goals in section 149.

[36]

Counsel further submitted that a five apartment property would not be "reasonable

adjustment" within the meaning of section 20 of the 2010 Act. A requirement to provide the

petitioner with a five apartment property would not be a requirement to change a provision

criteria or practice. The petitioner did not argue that any reasonable adjustments ought to

be made to any physical feature of the property but sought to be provided with a different

property. The duty to make reasonable adjustments in the provision of a service or the

exercise of a public function did not confer upon the recipient of that service a right to any

particular outcomes.

Analysis and decision

[37]

Section 20 (3) of the Equality Act 2010 imposes a duty:

"where a provision, criterion or practice of A's puts a disabled person at a

substantial disadvantage in relation to a relevant matter in comparison with

persons who are not disabled, to take such steps as it is reasonable to have to

take to avoid the disadvantage."

[38]

A failure to comply with that requirement is a failure to comply with a duty to make

reasonable adjustments (section 21(1)). Person A discriminates against a disabled person "if

A fails to comply with that duty in relation to that disabled person" (section 21(2)).

[39]

The respondent has the practice, as described in Mr Fulton's affidavit, of getting the

houses it uses for interim accommodation from registered social property owners. The

section 20 issue in this case is what the respondent should do if the registered social

landlords are unable to provide accommodation which is suitable for a disabled person. Is

the respondent required to make a reasonable adjustment to that practice so that it provides

suitable accommodation other than from a registered social landlord? Or is the respondent

entitled to apply the practice with the result that it fails to provide suitable accommodation

for a disabled person? In my opinion the former is correct. The respondent has a wide

range of statutory powers under which it can provide accommodation to homeless disabled

persons, whether directly or through landlords in the social rented sector or private rented

sector. It can source temporary homeless accommodation privately or commercially. It is

not restricted as a matter of law to sourcing only through registered social landlords.

Indeed, the Homelessness: code of guidance points out that local authorities across Scotland

utilise a diverse portfolio of temporary accommodation including local authority, housing

association and private rented stock, hostels and bed and breakfast accommodation.

Where suitable accommodation cannot be provided by the respondent by following its

practice of sourcing accommodation from registered social landlords, obtaining suitable

accommodation from other sources would be a reasonable adjustment. Accordingly, had

I not found in favour of the petitioner on section 29 of the Housing (Scotland) Act 1987, I

would have in any event found in her favour on section 10 of the Equality Act.

[40]

A further issue which arises under the Equality Act is in respect of the public sector

equality duty under section 149 which provides:

"(1)

A public authority must, in the exercise of its functions, have due regard to

the need to-

(b) advance equality of opportunity between persons who share a relevant

protected characteristic and persons who do not share it;

...

(3)

Having due regard to the need to advance equality of opportunity between

persons who share a relevant characteristic and persons who do not share it

involves having due regard, in particular, to the need to-....

(b) take steps to meet the needs of persons who share a relevant protected

characteristic that are different from the needs of persons who do not

share it;...

(4)

The steps involved in meeting the needs of disabled persons that are different

from the needs of persons who are not disabled include, in particular, steps to

take account of disabled persons' disabilities."

[41]

The public sector equality duty is not a duty to achieve a result, but a duty to have

regard to the need to achieve the statutory goals (Hotak para [74]). The duty must be

exercised "in substance, with rigour and with an open mind" (para [75]).

[42]

I am satisfied that within the constraints of the practice of only getting temporary

homeless accommodation from registered social landlords, the individual officers of the

respondent were aware of the needs of the disabled child and did their best, unsuccessfully,

to try to provide accommodation suitable for the child's disability. However that does not

necessarily mean that the public sector equality duty has been complied with by the

respondent. It is not enough to look only at steps taken by individual officers in applying

the practice and working within its constraints: consideration has also to be given to the

practice itself. I was not addressed on the wider background to the practice, nor on what

steps (if any) were taken in respect of the practice itself with a view to take account of

disabled persons' disabilities, nor on whether the respondent had exercised the public sector

equality duty "in substance, with rigour and with an open mind" when setting the practice

for its officers to follow. In these circumstances I make no finding as to whether or not the

respondent has complied with its duty under section 149.

Remedies

[43]

The petitioner seeks various declarators and also an order for specific performance of

the respondent's duty to provide suitable temporary accommodation to the petitioner and

her family.

[44]

The order for specific performance was opposed by respondent. It is not unusual for

respondents in judicial reviews to take the position that an order for specific performance

should not be granted. Normally that is because their position is that if the court finds

against them they will comply with the court's decision and so an order for specific

performance will not be necessary. In this case however the respondent adopted the wholly

extraordinary position that an order for specific performance should not be granted because

it proposed not to comply with the court's decision and instead continue to act unlawfully.

[45]

Counsel for the respondent submitted that specific performance was an equitable

remedy and should not be granted in the circumstances of this case. It would be impossible

for the respondent to comply with the order for the reasons set out in Mr Fulton's affidavit:

there were no five apartment properties available from its third party providers. It was

impossible for the respondent to provide a five apartment property that met the needs of the

petitioner and her family. It was not a cost issue: there were simply no five apartment

properties. Counsel even went so far as to suggest that if an order for specific performance

was granted the respondent would have to use its compulsory purchase powers to acquire

properties, then demolish them and re-build them as five apartment properties.

[46]

It is fundamental to the rule of law that public authorities obey the law and obey the

courts. If a court decides that public authority is in breach of a statutory duty, the public

authority must comply with the duty. The authority cannot just say that it chooses not to do

so because, in its view, it is impossible to do so. It must find a way to comply with its duty.

The duty must be discharged: the authority has no choice. It is not up to the court to decide

the precise way in which an authority complies with its statutory duty. The authority must

find a way and must allocate appropriate resources to do so. If the authority's usual

third-party providers cannot provide it with the means to comply with the duty, then the

authority must find other providers who can, or find another way to comply with the

decision of the court.

[47]

Having said all that, I appreciate that there may be practical issues for the respondent

in complying with an order for specific performance immediately upon the issue of this

opinion. I shall put this case out by order for discussion of the appropriate interlocutor in

the light of my decision. At the by order, I will expect to be addressed by the respondent in

detail as to how it proposes to comply with its statutory duty within a reasonably short

timescale. It will not be acceptable for the local authority to say that it does not intend to

comply.

Scottish Court of Session Decisions