After section 6A

Homelessness etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:15 pm on 5 March 2003.

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Photo of Linda Fabiani Linda Fabiani Scottish National Party

Amendment 15 would ensure that there is a clear right of appeal against a decision made in a homelessness assessment. The current legal argument is that it is possible to ask for a review of the duty owed, but that that is not enshrined in legislation. The question has to be asked: how many people who present as homeless will be au fait with the finer points of the legal argument? If the right to an appeal were enshrined in law, there would be no legal argument to prevent the appeal from proceeding and sufficient advice would be available to applicants from sources such as citizens advice bureaux.

Amendment 17 would allow the right to take the appeal to the sheriff court. That is in line with the European convention on human rights principle that there must be the right to a fair and independent hearing. The case in England of Adan v Newham London Borough Council resulted in a ruling that not to have recourse to a court was a breach of article 6 of the ECHR. We must be sure that we do all within our power to protect and enhance human rights in Scotland of Scots and people who live here. The amendment would help to do that.

I move amendment 15.

Photo of Robert Brown Robert Brown Liberal Democrat

I advise the chamber that amendment 17 follows a discussion that we had during the debate on the Housing (Scotland) Act 2001, when I put forward a similar proposal. The background is that there is the power to go to the Court of Session on judicial review against some decisions, but not to go to the sheriff court. What we did in the Housing (Scotland) Act 2001—after considerable discussion in the committee and with the then ministers—was to insert the more administrative right of review contained in section 4 of that act.

Although in principle I am sympathetic to amendment 17, it would be wrong, having legislated a year ago, to provide a new procedure, before the measure has had the chance to come into effect and before we have had time to see whether it works. We must find out what level of interest there is in the current process, and try to move it on a degree. I think that we might have to return to the matter, but I do not think that this is the right time to do so.

Photo of Des McNulty Des McNulty Labour

Amendment 15 seeks to clarify the extent of the right to request a review of a homelessness decision. The legislative right to request a review was included in the Housing (Scotland) Act 1987 through changes introduced by the 2001 act.

New section 35A of the 1987 act provides, among other things, that an applicant may request a review of

"any decision as to what duty (if any) is owed to the applicant under section 31 or 32".

The wording is deliberately wide enough to catch all the considerations relating to section 28 of the 1987 act. If someone were found not to be homeless, the local authority would decide that it owed no duty under sections 31 or 32 of the 1987 act and the applicant could request a review. If the applicant were considered neither to be in priority need nor intentionally homeless, the decision would affect the duty owed under sections 31 or 32 and would equally be caught by the right to a review.

In that context, amendment 15 is unnecessary, but I undertake to ensure that the updated code of guidance sets out clearly that the original homelessness decisions under section 28 of the 1987 act are caught by the right-to-review procedures. I hope that that helps Linda Fabiani.

On amendment 17, as Robert Brown said, the right of appeal to the sheriff court was discussed during the passage of the Housing (Scotland) Act 2001. When a similar amendment was lodged at stage 2, Linda Fabiani indicated that it was based on concerns arising from a judgment in the English case of Adan v Newham London Borough Council. The judgment in that case raised concerns that an internal review of a homelessness decision might be incompatible with article 6.1 of the ECHR, but it might be helpful to members if I update them on the latest legal position.

A later House of Lords decision in the case of Begum v Tower Hamlets London Borough Council departed considerably from the Adan decision. The facts in the two cases were almost identical: both involved an internal review of a homelessness decision under the equivalent English housing legislation. The Begum case clearly established that the requirements of article 6 of the ECHR can be satisfied by an internal review, where the subject matter of a decision involves the application of judgment and discretion rather than primarily a question of fact. A decision on homelessness clearly involves an exercise of administrative discretion notwithstanding that it also involves a preliminary finding of fact. On that basis, an appeal to the county court on a point of law was deemed sufficient to satisfy ECHR requirements and no appeal to determine fact and law was necessary. In Scotland, there is no equivalent statutory appeal for homelessness decisions, although it was accepted that a statutory appeal on a point of law to the county court is equivalent to a judicial review, which is the equivalent remedy in Scotland for homelessness cases.

In the light of the decisions in the Begum case and in earlier case law, amendment 17 is unnecessary to satisfy ECHR requirements and should be rejected on that basis alone.

Legal questions aside, I remain firmly of the view that adding a right of appeal to the sheriff court would tack on to the existing review procedures a further procedural layer that would only build costs and delays into the system. The review process must be fair and transparent, but it also needs to be prompt. As Robert Brown said, the new procedure has been in force for less than 12 months and we have no reports or feedback to suggest that it is causing difficulties. If further guidance is needed on any part of the procedure, including building in an independent element of review, we will provide it. In the meantime, and in the light of my reassurance on the ECHR position, I ask Linda Fabiani not to press amendment 17.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I thank the minister for his reassurances in relation to amendment 15, which I accept—I intend to withdraw the amendment.

On amendment 17, the case that the minister mentioned—whatever its name was—obviously came after the one that I mentioned. In the light of the minister's comments, which were extremely interesting, and his assurances about judicial review, I will not move amendment 17.

Amendment 15, by agreement, withdrawn.