Homelessness Policy and Procedure

THE REVIEW PROCEDURE, JUDICIAL REVIEW AND OTHER REMEDIES

Homelessness appeals are only competent if they deal with the application of the Councils' policy. In other words appeals which are concerned with the content of the policy itself, or, the Councils interpretation of the homelessness legislation, could not normally be considered for appeal.

The interviewing officer shall inform the applicant that they have the right to appeal the decision. This information will be given at the beginning of the interview and at the completion of the interview and will also appear on all decision letters.

The decision letter shall be posted as soon as possible once a decision is made. The letter shall advise the applicant of the review process. Where the applicant does not have a forwarding address then the decision letter can be 'uplifted' from the local office. This should normally be done within three working days.

The applicant shouldalso be advised that they can contact the Housing Aid Centre to help them with their appeal against any decision and any appeal must be submitted within 21 days.

Appeals will be dealt with by the Homeless Service Manager or the Appeals Officer, whoever is appropriate. The appeal will be dealt with within 5 working days. If there are problems in obtaining information, 10 working days may be more appropriate.

There are no further internal review mechanisms.

Judicial Review And Other Remedies

A Judicial Review

The main remedy open to homeless applicants who are aggrieved by a decision of a housing authority is by the process known as judicial review. This would involve the applicant petitioning the Court of Session, which is the only court competent to hear such cases.

However, as Watchman points out, the powers of the Court of Session on applications for judicial review are strictly limited:

The function of judicial review is merely to ensure that administrative bodies keep within their statutory powers and do not act in breach of the principles of natural justice or fairness. Therefore the grounds upon which the Courts will intervene are extremely narrow'. In other words, the Court of Session is not carrying out an appellate function. As one judge said. 'I am not sitting as a Court of Appeal . It is not for me to say what I would have found if I were the housing authority.....The question is: can I say, faced with the evidence which was properly before them.....that no sensible authority could properly come to the decision to which they had come?'.

From these basic principles, Watchman has identified six specific grounds upon which the courts may intervene by way of judicial review:

1. The exercise of discretion by the housing authority must be a real exercise, in the sense that the administrative body must consider the merits of each application rather than slavishly follow pre-determined policy;

2. The housing authority must have regard to matters which the statute directs them to consider, and conversely must disregard all irrelevant or collateral matters;

3. The housing authority must not act dishonestly or in bad faith;

4. The decision of the housing authority must not be so unreasonable that no reasonable authority could have come to it;

5. The housing authority in exercising its administrative functions must act fairly;

6. The housing authority must give adequate reasons for its decisions.

It should be noted that these six grounds do notinclude the question of whether or not the decision taken by the council was right or wrong, as long as the correct procedures were followed and the decision was not one, which any reasonable authority could have taken. Nevertheless, cognisance of possible duties and/or powers under the Children (Scotland) Act 1995 should be taken and staff should consult widely prior to making a decision on any applicant where this may occur.

If, however, the Court of Session does find against the housing authority it has considerable discretion in relation to remedies. Among other things, it could grant the applicants request and order the payment of damages.