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Homeless applicant loses judicial review but leaves with hope

22 October 2018

A man whose application for housing as a homeless person was refused on the ground of intentional homelessness has had his petition for judicial review of the decision refused as directed against the wrong body, but with the court expressing the view that it would have succeeded on the merits and the decision maker should consider its position.

Lord Woolman in the Court of Session said that Glasgow City Council had required Tapiwa Zugunde to pay off rent arrears concerning a previous tenancy at an excessive rate, with the result that he had been evicted when failing to keep up payments. Thre were also exceptional circumstances such as to excuse his failure to exhaust all other remedies.

The applicant had obtained a Scottish secure tenancy in 2014 after previously sleeping rough. After August 2016 he ran into financial difficulties and defaulted on his rent. At that time his sole income was jobseeker's allowance of £69 a week. He received housing benefit to cover his rent. Following repossession proceedings he entered into a repayment plan with payments of £12.75 a week towards the arrears, though he did not think he could afford this. That proved to be correct and he was evicted after failing to keep up the payments.

He applied to be rehoused but was refused by a letter from Glasgow City Health & Social Care Partnership which stated that the city council considered he became homeless intentionally. It stated he had a right of review within 21 days and should seek independent advice from suggested sources. He did nothing for nearly three months, having (as homeless persons commonly do) "put his head in the sand", in his solicitor advocate's description, until he consulted Govanhill Law Centre. A request on his behalf for a review was refused as out of time.

The applicant sought reduction of the decision refusing his application for rehousing, convening as respondent Glasgow City Integration Joint Board. The board maintained that the city council was the correct respondent, but the applicant considered the council to be acting as the board's agent, having regard to ss 25 and 26 of the Public Bodies (Joint Working) (Scotland) Act 2014.

Lord Woolman said he was satisfied that the council was the decision maker. While the position had not been clear, and was further complicated by the apparent origin of the decision letter, "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."

On a further argument that the petition was incompetent due to failure to seek a review within 21 days, the judge considered this bound in with whether there was a flaw in the decision. The applicant had been unrepresented in the eviction proceedings and the repayments he agreed to greatly exceeded the maximum of 5% of benefit entitlement operated by the DWP. It was also not apparent that the council had taken any of the steps in the ministerial Code of Guidance on Homelessness to investigate the cause of the applicant's situation, and its reasons were inadequate.

He concluded: "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."

Click here to view the opinion.

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