A homeless family with an autistic son was provided a four-bedroom interim flat instead of the five-bedroom property their needs assessment recommended. The Supreme Court held that the interim housing duty requires local authorities to ‘take into account’ household needs, not necessarily to meet them all, unlike the stricter permanent accommodation duty.
Background
The appellant and her husband were granted refugee status in February 2020, rendering them homeless when their Home Office accommodation ceased. Their household comprised four children, including a son with an autism diagnosis requiring additional support needs. Glasgow City Council, the respondent local authority, owed them an interim duty to secure temporary accommodation under section 29 of the Housing (Scotland) Act 1987 (‘the 1987 Act’).
In February 2021, the respondent secured a four-apartment property (three bedrooms and a living room) for the family on an interim basis. An occupational therapy assessment dated 21 July 2021 recommended a five-apartment property to accommodate the son’s additional support needs. Despite this, the respondent continued to house the family in the four-apartment property, explaining in evidence that five-apartment properties were extremely scarce, that Glasgow City Council had no housing stock of its own (having transferred it to registered social landlords in 2003), and that the living room could be used on a temporary dual-purpose basis to give the son his own room. The family was eventually offered a five-apartment property in March 2024, which they accepted as permanent accommodation in January 2025.
The Issue(s)
The central question was the scope of the interim duty imposed by section 29(1) of the 1987 Act read with article 4(b) of the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 (‘the 2014 Order’). Specifically, the court had to determine whether the phrase ‘taking into account the needs of the household’ in article 4(b) meant that interim accommodation must meet all the needs of the applicant and household members (as the appellant contended), or whether it merely required the local authority to consider those needs when assessing suitability (as the respondent argued).
The Appellant’s Case
The appellant argued that section 29 and the 2014 Order together imposed a mandatory duty to secure interim accommodation meeting all needs of the homeless applicant and household members, with no distinction between general and special needs. The four-apartment property was therefore unsuitable and the respondent acted unlawfully. The appellant relied on the Policy Note accompanying the 2020 amendments and the Scottish Ministers’ 2021 guidance as supporting this construction.
The Respondent’s Case
The respondent contended that the interim duty simply required the local authority to consider the needs of the household when securing suitable accommodation, but did not extend to requiring that all needs be met. The respondent distinguished the language of the interim duty from the stricter permanent accommodation duty under section 31.
The Court’s Reasoning
The Statutory Scheme: Two Distinct Duties
Lady Simler, delivering the unanimous judgment, identified a fundamental distinction in the statutory scheme between the interim duty (section 29) and the permanent duty (section 31). She observed:
The scheme of the 1987 Act is that it distinguishes between the two duties to secure suitable accommodation which arise at different stages of the local authority’s process of addressing a homelessness application. The first stage involves the interim duty to provide temporary accommodation under section 29 and the second, the duty to provide permanent accommodation under section 31.
The permanent accommodation duty under sections 31 and 32(5) requires accommodation that ‘does not include accommodation … that does not meet any special needs of the applicant’. By contrast, article 4(b) of the 2014 Order requires only that interim accommodation be ‘suitable for occupation by a homeless household, taking into account the needs of the household’.
The Distinction Between ‘Meeting’ and ‘Taking Into Account’ Needs
The court identified this as the determinative point of construction:
There is, accordingly, a fundamental distinction drawn by the legislation between the duty to meet needs imposed in relation to permanent accommodation and the duty to take account of needs imposed in relation to interim accommodation. The first is a results or outcome driven duty and the second is a process duty requiring needs to be considered but not requiring them to be met.
Lady Simler drew an analogy with the public sector equality duty under section 149 of the Equality Act 2010, which requires ‘due regard’ to equality considerations but does not dictate a particular outcome. She explained that where the legislature intended a requirement to be met rather than merely considered, it used different language — as seen in article 4(a) (wind and watertight) and article 4(c) (minimum safety standards).
No Distinction Between General and Special Needs
The court clarified that the Inner House was wrong insofar as its judgment was read as distinguishing between ‘general’ and ‘special’ needs:
There is no warrant for any gloss on the word needs or the phrase the ‘needs of the household’. To the extent that the judgment of the Inner House has been read or understood as drawing a distinction between special, particular or general needs … then that is wrong. Needs in this context means all relevant needs as regards accommodation, whether special or particular, general, medical or otherwise.
However, this did not alter the conclusion that such needs must be taken into account rather than met at the interim stage.
Coherence Within the 2014 Order
Lady Simler demonstrated that the appellant’s construction would produce incoherence within the 2014 Order itself. Article 6 permits disapplication of article 5 requirements in emergencies, yet article 4 cannot be disapplied. On the appellant’s reading, a local authority could provide emergency accommodation lacking exclusive toilet facilities (article 5(c) having been disapplied) but would still be required to meet all household needs under article 4(b) — an absurd result.
Practical Realities
The court emphasised the practical context:
Accommodation provided under section 29 is a staging post along the way to permanent accommodation under section 31. Accordingly, as a matter of practical reality, there are likely to be cases where what is suitable for a homeless person to occupy on an interim basis while the authority completes its inquiries or looks for permanent accommodation, will be different to what is suitable in the longer term.
The Policy Note and Guidance
The court held that the statutory language was clear and unambiguous, requiring no recourse to external aids. In any event, the guidance was not inconsistent with the respondent’s interpretation, as paragraph 3.4 itself stated that a local authority must ‘take account of’ the needs of each member of the household — mirroring the statutory language rather than imposing a duty to meet those needs.
Rationality as the Control
The appropriate safeguard for homeless applicants is judicial review on rationality grounds:
The control is rationality. Provided the local authority reaches a decision that is within the range of reasonable decisions available, it will not be open to challenge because some needs have not been met.
The court also acknowledged that accommodation suitable for a short period may cease to be so over time.
Application to the Facts
The respondent’s evidence demonstrated that it had taken into account the household’s needs, including the son’s need for his own room, the occupational therapist’s recommendation, and the severe scarcity of five-apartment properties. The use of the living room on a temporary dual-purpose basis was a reasonable interim solution. Lady Simler concluded:
The decision had proper regard for articles 4 and 5 of the 2014 Order. It was well within the range of reasonable decisions open to the respondent and was a lawful decision.
Practical Significance
This decision clarifies the scope of interim housing duties owed to homeless persons in Scotland. It establishes that the requirement to ‘take into account’ household needs under article 4(b) of the 2014 Order is a process duty — not an outcome duty — and is materially less stringent than the permanent accommodation duty to ‘meet’ needs under sections 31 and 32(5) of the 1987 Act. Local authorities are not required to secure interim accommodation that meets all needs of every household member; they must, however, genuinely consider those needs when assessing suitability. The safeguard against inadequate consideration is judicial review on rationality grounds. The judgment also confirms that the duration of occupation may be relevant to whether interim accommodation remains suitable over time.
Verdict: The appeal was dismissed. The Supreme Court unanimously held that the respondent local authority had lawfully discharged its interim duty under section 29 of the Housing (Scotland) Act 1987 by securing a four-apartment property for the appellant’s household, having properly taken into account the needs of the household in accordance with article 4(b) of the 2014 Order.
