“Considering, Not Fulfilling” – The Supreme Court Re-defines the Interim Housing Duty in Scotland

1. Introduction

Glasgow City Council v X (Scotland) ([2025] UKSC 13) is a landmark decision on the nature and scope of the interim duty owed by Scottish local authorities under s 29(1) Housing (Scotland) Act 1987 (“the 1987 Act”) and the Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014 (“the 2014 Order”). At its core lies a linguistic yet highly practical dilemma:

The appellant – a refugee mother housed with her husband and four children, one of whom has autism – contended that anything short of accommodation fully meeting all household needs is “unsuitable”. The Council, supported by the Inner House of the Court of Session, argued the duty is essentially procedural: needs must inform the suitability assessment, but need not all be met at the interim stage.

The Supreme Court, affirming the Inner House, sided with the Council and in doing so erected a clear doctrinal distinction in Scottish homelessness law between a “results/outcome duty” (for permanent accommodation) and a “process/consideration duty” (for interim accommodation).

2. Summary of the Judgment

• Appeal dismissed.
• Key holding: Under s 29 of the 1987 Act, read with art 4(b) of the 2014 Order, a local authority must take account of all the needs – general and special – of the household when deciding if temporary accommodation is suitable. However, it is not obliged to provide accommodation that meets each and every need. That higher “meeting” standard is reserved for the separate duty to secure permanent accommodation under s 31 and s 32(5).
• The Court emphasised that “taking into account” is a recognised “due-regard” or process-based formula, contrasting sharply with “must meet”, which connotes an outcome obligation.
• Twin rationales anchored the decision: (1) the statutory text, which uses different verbs for the two stages; and (2) the practical realities of scarce housing stock and the staged nature of the homelessness regime.

3. Analysis

3.1 Precedents Cited

• R (Project for the Registration of Children as British Citizens) v SSHD

Lord Hodge’s restatement of purposive contextual statutory construction (paras 29-31) supplied the template for the Court’s interpretive approach.

• Dafaalla v City of Edinburgh Council [2022] CSIH 30

Illustrated that interim duties arise before a full needs assessment, reinforcing the impracticality of a strict “needs-met” reading at the section 29 stage.

• R (Aweys) v Birmingham City Council [2009] UKHL 36

From the English regime, emphasising that temporary and permanent duties are functionally distinct. Used as an analogical aid.

• Boyle v SCA Packaging Ltd [2009] ICR 1056

Cited on the weight to be given to statutory guidance (must be taken seriously into account).

• R (Imam) v Croydon LBC [2023] UKSC 45

Referred to for the idea that suitability may change over time – a concept indirectly underscoring the flexibility built into an “account-taking” duty.

3.2 Legal Reasoning

1. Textual distinction:
   • s 29 + art 4(b): “taking into account”
   • s 31 / s 32(5)(b): “meet any special needs”
   The Court treated these verbs as deliberately differentiated legislative choices creating two qualitatively different duties.
2. Structure & purpose of Part II 1987 Act:
   • Two-stage mechanism: interim (urgent shelter) → permanent (long-term stability).
   • Imposing a “meet-all-needs” rule at the interim stage would collapse the two stages and produce redundancy.
3. Practical coherence:
   • Art 6 of the 2014 Order allows derogations (e.g., emergency flooding), incompatible with an absolute needs-meeting test.
   • Housing scarcity evidence (Council’s affidavit) highlighted systemic constraints; law presumed to operate realistically.
4. Guidance & Policy Notes:
   • Helpful context but cannot override clear statutory language (per Lord Hodge in Project case).
   • Guidance itself uses “take account” language, aligning with the Court’s reading.
5. Standard of review:
   • Decision-making remains reviewable on Wednesbury rationality grounds; failure to consider a material need can still render a placement unlawful.

3.3 Likely Impact

• For Local Authorities: Clarifies they do not have an absolute duty to secure tailor-made accommodation at the interim stage; reduces litigation risk where only some needs are unmet.
• For Applicants & Advisors: Raises the threshold for challenging temporary accommodation; challenges must focus on irrationality or material error in the authority’s assessment process.
• On Judicial Review Jurisprudence: Re-emphasises the distinction between process duties and substantive outcome duties – a theme likely to reverberate across public-law housing cases.
• Policy Development: Scottish Government may consider whether current resource levels suffice, given the Court’s recognition that scarcity was implicitly accommodated by the statutory language.

4. Complex Concepts Simplified

Interim Duty vs Permanent Duty

Think of the homelessness process as two rungs on a ladder:

1. Interim duty (s 29): “We’ll get you somewhere safe now; we promise we’ve considered what you need.”
2. Permanent duty (s 31): “We’ll find you a long-term home that actually fits all your needs.”

“Taking into account”

Comparable to a doctor noting all allergies before prescribing – the doctor must consider them, but may still decide on a medicine that causes a mild reaction if no better option is immediately available.

“Unsuitable Accommodation Order”

A statutory blacklist of minimum failings (e.g., no heating, unsafe structure) plus additional criteria (location, accessibility) that, if triggered, bars use of the property for interim housing.

Rationality Review

Court asks: “Did the council act so unreasonably that no sensible authority would have taken that view?” If yes, decision is quashed; if not, it stands even if some needs remain unmet.

5. Conclusion

Glasgow City Council v X decisively resolves a persistent ambiguity in Scottish homelessness law. The Supreme Court drew a bright line:

This interpretive clarification balances the rights of homeless households with the operational realities confronting Scottish councils. While it may disappoint advocates seeking stronger interim protections, it enshrines a coherent, practicable framework and preserves judicial oversight through rationality review. Future litigants will therefore need to show not that every need went unmet, but that key needs were ignored or unreasonably discounted. As such, the decision realigns expectations and provides a stable doctrinal platform for both housing authorities and the courts.