Challenging allocation decisions
There are a number of ways in which a local authority or registered social landlord can be challenged about the decision it has made when allocating housing.
If an applicant is unhappy with an allocation decision, or considers that a local authority's policies are being unfairly applied, or that there has been undue delay in making a decision, there are a number of steps that can be taken:
Request a review
Where the decision has been made as part of a general waiting list application the applicant should first use any internal review or appeal process.
If the allocation decision has occurred as a result of the local authority's duties under homelessness legislation the applicant can request that their local authority formally review the decision. For more information on using this procedure see the section on challenging local authority decisions.
Action at Sheriff court
Any decision regarding suspension from the waiting list can be appealed by way of summary application at the Sheriff court. [1] The client should be referred to a specialist solicitor. See the section on suspension from waiting list in allocation of tenancies for more information.
Local councillor, MSP or MP
The applicant could write a letter to their local councillor, Member of the Scottish Parliament or Member of Parliament to request that they make an enquiry to the local authority or registered social landlord on their behalf. To find the contact details of an applicant's local representatives use the WriteToThem website.
Scottish Public Services Ombudsman
Where the applicant thinks that there has been maladministration the case can be referred to the Scottish Public Services Ombudsman the ombudsman has the power to investigate the issue and report back to the landlord on their findings. The ombudsman cannot overturn a local authority's decision however, they can request that they overturn it and make a new one. See the page on an Appeal to the Ombudsman for more information.
Judicial review
Applicants could also apply to court for judicial review. This is a complex area of law and the client should be refered to a specialist solicitor.
Where the landlord is a registered social landlord (rather than a local authority) judicial review may only be made if it can be shown that the registered social landlord is exercising a 'public function'.
To apply for judicial review, the applicant must show that the local authority or RSL has acted outwith its statutory powers; has used those powers in an unreasonable manner; has fettered its own discretion, or has taken into account irrelevant considerations.
Even if an application for judicial review is successful, the court can usually only quash the decision and order the local authority or RSL to make a fresh decision. In other words, the court cannot award someone more housing points. Applications for judicial review must be made in the Court of Session. A solicitor and an advocate must therefore be instructed, and as a result, such an action is very expensive. Civil legal aid is available for judicial review applications. However, as with all applications for civil legal aid, the applicant must satisfy financial requirements and convince the Scottish Legal Aid Board that they have 'probable cause'.
See the section on Judicial review for more information.
Action for damages
If the landlord's decision has severely impacted upon the applicant they could pursue an action for damages in court. For example, in cases where local authorities breach the provisions relating to race, religion/belief, sex, sexual orientation or disability discrimination, the applicant can sue for damages in the Sheriff Court. Where this is the case a solicitor who specialises in civil court work should be instructed. The Equality and Human Rights Commission may also be able to provide advice and representation to someone who has been discriminated against.
Last updated: 26 April 2019