Request a review

If a decision relates to one of the local authority's duties under the homelessness provisions of the Housing (Scotland) Act 1987 below, it will be possible to make use of the review procedure. The exact nature of the procedure will vary between each local authority but a formal review must be available if the decision relates to: [1]

• what duty, if any, is owed to the applicant if they are homeless or threatened with homelessness

• determining if the accommodation secured for the applicant fulfils any duty owed to them [2]

Where a decision has been made that no duty is owed, an applicant is entitled to request a review, even if the reason for this this is outwith the scope of the 1987 Act, [3] for example where a local authority believe an applicant has no entitlement to public assistance.

When notifying the applicant of its decision, the local authority must also inform the applicant of their right to a review and of the advice and assistance available to enable them to pursue this. [4]

If a client has requested a review, the local authority must continue to accommodate them until they have been notified of the outcome of the review. [5]

An applicant may wish to apply for a review of a decision about whether or not an offer of accommodation under sections 31, 32 or 34 of the Housing (Scotland) Act 1987 discharges the duty of the local authority.  

The Code of Guidance states that, in normal circumstances, local authorities should hold an offer of accommodation until the review has taken place. [6]

This has not been challenged in Scotland but a judgement in an English casegives some guidance about the approach a Scottish court may take. In the case [7], the Court of Appeal stated that an applicant could accept an offer of accommodation under the equivalent English legislation whilst intending to apply for a review of a decision that an offer of accommodation had discharged them of their duties.

Arguably, a Scottish court presented with similar facts would also adopt this approach. In light of this, advisers should emphasise to their clients the importance of discussing any offer of accommodation with them before accepting or rejecting it. If the client does not want to accept the offer, they should be told that they can apply for a review. It should however be made very clear that, if they reject the offer, and the review concludes that the original decision was correct (in other words, that the offer of accommodation discharges the local authority's duty) it is possible that no other offer of accommodation will be made and the applicant will have nowhere to go once they have to leave their temporary accommodation. Advisers should also make it clear that, if the offer of accommodation is accepted pending the review decision, the applicant will at least have somewhere to go if the decision is upheld, as opposed to no accommodation at all. [8]

The case of Omar v. Westminster Council [9] considers the question of what information can be taken into account when someone has applied for a review of a decision relating to a homeless application.

Some of the issues discussed in the case address English legislation which does not have an equivalent in Scots law. However, it also deals with some issues which also arise under Scottish legislation it is possible that a Scottish court presented with similar, or comparable, facts, would adopt the same approach.

Omar is about a family whose baby son had to attend hospital in a particular area of London as an out-patient. The family refused the original offer of accommodation on the basis that it was too far away from the hospital. They also applied for a review of the decision.

During the review process, the local authority obtained further information from the hospital about the nature of the child's treatment. They took this additional information into account when reviewing the original decision and, on this basis, decided that the accommodation offer had been suitable and, therefore, their duty had been discharged under the English legislation.

The family appealed to the Court of Appeal arguing that only the original information should have been taken into account at the stage of review. The appeal was successful.

In essence, this case seems to state that, where a review is being carried out, the facts that can be taken into account largely depends on:

• what the review decision is about and

• what is deemed to be ‘fair’ in the circumstances.

This would suggest that there is still room for argument in cases such as these, depending on the circumstances.

A request for a review should be made within 21 days from the day a client is notified of a local authority's decision. [10] Local authorities have the power to increase this period but not to reduce it. If the local authority has decided to allow more than 21 days, it must adhere to the longer period. If a local authority refuses to consider any requests for review that are made after 21 days then judicial review may be possible. In an English case, the Court of Appeal has held that a client is entitled to a review only within the 21-day period and that any review outwith this time limit is at the discretion of the local authority. [11]

A request for a review does not have to be made in writing, although this may be the best approach since a copy of the request could be retained in case of disputes. A verbal request for a review is however acceptable.

Although each local authority will establish its own procedures, any review must be carried out by someone senior to the person who made the decision which is under review and who played no part in the making of the original decision. [12]

Advisers should obtain details of the procedures operated by the local authorities in their area. Recent research suggests that, in local authorities that operated internal reviews on a voluntary basis, it was common for the original decision maker to double-check her/his decision with a senior in complex or contentious cases. In effect, the senior would become the decision-maker. In many cases, the senior would then be the person conducting any subsequent review. [13] This practice is not permissible under the statutory review procedure.

The Code of Guidance sets out a number of features that should be included in any review procedure as a matter of good practice: [14]

• It should be speedy and be a full and fair hearing.

• The applicant should be fully informed of the point that the review will consider.

• The applicant must be given reasonable time to prepare her/his case.

• The applicant should be given details of agencies that could assist her/him with the review, including the provision of advocacy.

• The applicant should be able to be accompanied by a friend, adviser or legal representative and to have an interpreter if English is not her/his first language.

• Intermediaries should be available for people with hearing or speech difficulties and for those with mental health problems or learning disabilities.

• Verbal and written representations should be acceptable.

• Suitable training should be available to those reviewing decisions.

• Where a review decides that a decision was correct but that the process was handled insensitively or inadequately, it should be possible for an apology to be issued.

• The written review decision should include full and clear explanations and set out exactly what parts of the original decision are being changed.

The local authority must notify the client in writing of the decision reached on review. [15] Reasons must be given if the review: [16]

• confirms the original decision on any issue which is negative to the client

• confirms a previous decision to make a referral to another local authority under the local connection provisions

• confirms that the conditions are met for such a referral

If reasons are not given, notice of the review decision will be treated as though it has not been given.

Once a decision has been reviewed, there is no right to request a further review of the outcome. [17] A local authority has the discretion to carry out a re-review [18] however, if it refuses to do so, judicial review remains a possibility at this point.

See the section on Judicial review