Brown v Hamilton DC [1982] UKHL 13

UKHL

Brown v Hamilton DC

[1982] UKHL 13 · 1982-11-25

LORD JUSTICE-CLERK (Wheatley).—The pursuer raised this action in the Sheriff Court at Hamilton. The craves were initially in these terms:(1) to find and declare that he is a homeless person with a priority need and entitled to look to the defenders for accommodation all in terms of the Housing (Homeless Persons) Act 1977: and

(2) upon so finding to ordain the defenders to provide him with suitable accommodation in terms of said Act. The defenders tabled pleas to "competency," "no jurisdiction" and "relevancy." The Sheriff repelled the pleas to "competency" and "no jurisdiction" and continued the case to the procedure roll. He granted leave to appeal and the defenders appealed to this Court. During the first hearing of the appeal it became clear that the pleadings were far from complete. The Sheriff had noted this in his judgment, but since the pleas argued before him related only to competency and jurisdiction he allowed the debate before him to proceed on the understanding that if these pleas were repelled the pleadings would have to be amplified. As that first hearing of the appeal had to be continued for a good and sufficient reason we indicated to counsel that advantage should be taken of the continuation to amplify the pleadings and this has been done. In the result there have been considerable changes effected. The craves now read:

"1. To find and declare that the purported decision of the defenders that they were satisfied that the pursuer had become homeless intentionally in terms of section 17 of the Housing (Homeless Persons) Act 1977 was not a decision which the defenders were entitled to reach. 2. To find and declare that on having completed or purported to complete their inquiries into the pursuer's case, on or about 5th December 1978, the defenders became bound to secure that accommodation became available for the pursuer's occupation in terms of section 4 (5) of the Housing (Homeless Persons) Act 1977; or alternatively, that having failed to make appropriate inquiries in terms of section 3 of that Act, the defenders are bound to secure that accommodation is made available for the pursuer's occupation, in terms of section 3 (4) of that Act. 3. To ordain the defenders to secure that accommodation becomes available for the pursuer's occupation in terms of section 4 (5), or alternatively, of section 3 (4) of the Housing (Homeless Persons) Act 1977. 4. To grant decree for payment by the defenders to the pursuer of the sum of TWO THOUSAND POUNDS with interest thereon at the rate of Eleven per centum per annum from 5th December 1978 until payment."

It will be observed that in addition to a complete recasting of the original craves a crave for damages has now been included. The pleas- in-law have been substantially altered. In the circumstances the appeal had to proceed de novo . The basic question at issue is whether the Sheriff Court is a competent forum in which to challenge a decision of a local authority carrying out its statutory functions in terms of sections 1 to 4 of the Housing (Homeless Persons) Act 1977 (hereinafter referred to as the Act). This was the first broad chapter of the defenders' challenge to the pursuer's case. The second chapter was whether, assuming it was competent, the Sheriff Court could provide the remedy requisite to sustain the pursuer's challenge. The third chapter was whether, if the first two broad issues were answered in favour of the pursuer, his averments were relevant.

It seems to me desirable to consider at the very start the nature and requirements of the function which Parliament has laid on the local authority under the Act. The fundamental purpose is to saddle the local authority with the responsibility of securing housing accommodation for people who are homeless or threatened with homelessness. That responsibility, however, is limited in its fullest requirement to persons who(1) are homeless or threatened with homelessness (section 1);

(2) have priority need for accommodation (sections 2 and 3); and

(3) have not become homeless or threatened with homelessness intentionally (sections 3 and 4). There are, however, what I may describe as intermediate responsibilities on the local authority in relation to applicants who do not fulfil all three conditions. Where an application is made for accommodation or for assistance in obtaining accommodation the local authority have to consider whether they have reason to believe that the applicant is homeless or threatened with homelessness as defined in section 1. If the local authority have reason to believe that the applicant may fall within that category, they have a duty to make appropriate inquiries as defined in section 3 (2) as are necessary to satisfy themselves that the applicant ( a ) is homeless, ( b ) has a priority need and ( c ) did not become homeless or threatened with homelessness intentionally. Pending the inquiries and a decision the local authority has to secure that accommodation is made available to the applicant if they have reason to believe that he may be homeless. Where the local authority are then satisfied that the applicant is homeless or threatened with homelessness but are not satisfied that he has a priority need or are satisfied that he has a priority need but became homeless or threatened with homelessness intentionally they shall furnish him with advice and appropriate assistance. Moreover, in that latter situation if the applicant is in fact homeless, they must secure that accommodation is made available for his occupation for such a period as they consider will give him a reasonable opportunity of himself securing accommodation for his occupation. When the local authority are satisfied that the applicant is homeless, has a priority need but are not satisfied that he became homeless intentionally, then it is their duty to secure that accommodation becomes available for his occupation. Even if they are satisfied that he became homeless intentionally they still have a duty under and in terms of section 4 (3) to secure that he is provided with temporary accommodation for a limited period to give him a reasonable opportunity of himself securing accommodation for his occupation. There are further provisions dealing with cases where other local authorities may be involved but these can be ignored for present purposes. Section 8 deals with the manner in which the local authority has to notify the applicant of their decision.

These are the relevant duties which Parliament has imposed on local authorities in fulfilment of the statutory objective. They have certain procedures to carry out and certain decisions to make on the basis of being satisfied. If they fail in these duties so that an inequitable decision is made an applicant is thereby deprived of the benefit which Parliament intended him to have. The Act provides no procedure for an appeal. Accordingly, if an applicant is aggrieved his only recourse is to the courts of law. But it was submitted by the local authority that in Scotland recourse to the courts for the purpose of challenging a decision of a local authority in such cirumstances is circumscribed both in relation to the court which has jurisdiction and the remedy available. It was maintained that for reasons hereinafter explained the Court of Session was the only court which could entertain such an action and that as it was necessary to reduce the decision complained of before any remedy could be effected by the court, the Sheriff Court could not entertain such an action since it involved a reduction of the decision complained of, and an action of reduction is not competent in the Sheriff Court. The instant action, which was initiated in the Sheriff Court, was accordingly incompetent.

Before considering these matters I turn to examine the nature of the pursuer's claim and the remedies which he seeks. Leaving aside for the moment the question of the relevancy of his pleadings, the pursuer's basic complaint is that the local authority having accepted that he was homeless and had a priority need were in breach of specified duties under sections 3 and 4 of the Act. In particular they failed to make "appropriate inquiries" in terms of section 3 in respect of the question whether he became homeless intentionally and failed to make accommodation available to him in terms of sections 3 (4) and 4 (5) or 4 (3), whichever of the latter two was appropriate in the light of their decision on "intentionally homeless." The remedies he seeks as set out in the craves and reflected in his pleas-in-law are these. First of all he asks for a declarator that the decision of the defenders that they were satisfied that he became homeless intentionally was not a decision which they were entitled to reach. Secondly, he seeks a further declarator that the defenders having completed their inquiries or having purported to have done so became bound to secure that accommodation was made available to him in terms of section 4 (5), on the basis that they ought to have been satisfied that he had not become homeless intentionally, and should have proceeded accordingly. Alternatively, if the defenders have not made inquiries in a way appropriate to satisfy the requirements of section 3 he seeks a declarator that they are bound to secure that accommodation is made available for him in terms of section 3 (4). Thirdly he seeks an order of the Court ordaining the defenders to secure that accommodation is made available to him in terms of section 4 (5) or of section 3 (4). Fourthly he claims damages from the defenders for loss and damage alleged to have been suffered by him as a result of their fault and breach of statutory duties.

At the root of the whole issue is the question of the grounds, if any, on which a decision of a local authority under an Act like this can be reviewed by a court of law. The Act provides no statutory right of appeal from the local authority's decision, and accordingly is silent on the grounds on which recourse can be had to the courts of law. The broad general grounds on which such recourse can be had were stated by Lord Greene (M.R.) in Associated Provincial Picture Houses Limited v. Wednesbury Corporation

[1948] 1 KB 223

at p. 228 et seq . Dealing with discretionary powers given by statute to local authorities (and when something has to be done by a local authority if they are satisfied about certain matters this connotes the conferment of discretionary powers), Lord Greene said:

"The plaintiffs' contention is based, in my opinion, on a misconception as to the effect of this Act in granting this discretionary power to local authorities. The courts must always, I think, remember this: first, we are dealing with not a judicial act, but an executive act; secondly, the conditions which, under the exercise of that executive act, may be imposed are in terms, so far as language goes, put within the discretion of the local authority without limitation. Thirdly, the statute provides no appeal from the decision of the local authority.

"

What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognises certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. There have been in the cases expressions used relating to the sort of thing that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty—those, of course, stand by themselves—unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable.’

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably.’ Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation

[1926] CH. 66

gave the example of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another." What is involved in the use of the word "satisfied" can be gauged from what was said about the phrase "If it appears to the Secretary of State" by Lord Denning (M.R.) in Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen ( No. 2 ) [1972] 2 Q.B. 455 at 493, a statement of the law which was endorsed by Lord Wilberforce in the House of Lords in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council

[1977] AC 1014

at pp. 1024–5 and Lord Widgery C.J. in Regina v. Bristol City Council , ex parte Browne [1979] 1 W.L.R. 1437. Lord Denning said:

"What is the effect of the words ‘If it appears to the Secretary of State’? This, in my opinion, does not mean that the Minister's decision is put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the Minister is dealing. In this case I would think that, if the Minister does not act in good faith, or if he acts on extraneous considerations which ought not to influence him, or if he plainly misdirects himself in fact or in law, it may well be that a court would interfere; but when he honestly takes a view of the facts or the law which could reasonably be entertained, then his decision is not to be set aside simply because thereafter someone thinks that his view was wrong."

In relation to the phrase "if the Secretary of State is satisfied," Lord Wilberforce said:

"Sections in this form may, no doubt, exclude judicial reviews on what is or has become a matter of false judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then although the evaluation of those facts is for the Secretary of State alone, the court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made on a proper self direction as to those facts, whether the judgment has not been made on other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge."

Later on, dealing with a discretion conferred by statute, Lord Wilberforce said:

"In these cases it is said that the courts cannot substitute their opinion for that of the Minister; they can interfere on such grounds as that the Minister has acted right outside his powers or outside the purpose of the Act, or unfairly, or on an incorrect basis of fact. But there is no universal rule as to the principles on which the exercise of a discretion may be reviewed; each statute or type of statute must be individually looked at."

The applicability of this law and the tests therein envisaged to disputes under the Act of the nature involved in the instant case was accepted in Regina v. Bristol City Council supra and De Falco v. Crawley Borough Council [1980] Q.B. 460. In the latter case Bridge L.J. (as he then was) pointed out at p. 479 that the court's power to review any decision of a local authority under this Act is not appellate but supervisory.

This exposition of the law was not challenged in any way. In the normal case the first question to be canvassed would be whether the facts averred brought the case into the category where such law applied. In the instant appeal, and no doubt stemming from what was argued in the Sheriff Court, the first question canvassed, as previously noted, was whether it was competent to have the finding of the local authority reviewed in the Sheriff Court. On that approach, it was only if that question was answered in favour of the pursuer would it be necessary to consider whether the pursuer had relevantly averred his way into court at all. Even if he failed to clear these hurdles or either of them in relation to the first three craves, the pursuer maintained that he still had a relevant claim for damages under crave 4 which could competently be dealt with in the Sheriff Court.

The defenders' basic submission on competency was advanced under two heads:(1) It was not competent to review the decision of the local authority in the Sheriff Court, since such a judicial review could only be carried out in the Court of Session through the exercise of that Court's supereminent jurisdiction; and

(2) the action, however framed, was in effect an action to reduce the decision of the local authority and an action of reduction was not competent in the Sheriff Court, being competent only in the Court of Session.

The argument that the decision of the defenders as a local authority could only be reviewed by the Court of Session and that the power to ordain the defenders as a local authority to carry out their statutory duty under the Act lay solely with that Court by virtue of its supereminent jurisdiction was principally based on the dictum of Lord President Inglis in Forbes v. Underwood (1886) 13 R. 465. That was a case raised in the Sheriff Court where the Court was asked to ordain an arbiter to discharge the legal duty he had undertaken as an arbiter. The Lord President said at pp. 467–8:

"The position of an arbiter is very much like that of a judge in many respects, and there is no doubt whatever that whenever an inferior judge, no matter of what kind, fails to perform his duty, or transgresses his duty, either by going beyond his jurisdiction, or by failing to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this Court, and the inferior judge, if it turns out that he is wrong, may be ordered by this Court to go on and perform his duty, and if he fails to do so he will be liable to imprisonment as upon a decree ad factum praestandum . The same rule applies to a variety of other public officers, such as statutory trustees or commissioners, who are under an obligation to exercise their functions for the benefit of the parties for whose benefit these functions are entrusted to them, and if they capriciously and without just cause refuse to perform their duty, they will be ordained to do so by decree of this Court, and failing their performance will, in like manner, be committed to prison. Now all this belongs to the Court of Session as the Supreme Civil Court of this country in the exercise of what is called, very properly, its supereminent jurisdiction. It is not of very much consequence to determine whether it is in the exercise of its high equitable jurisdiction, or in the performance of what is sometimes called its nobile officium . But of one thing there can be no doubt, that in making such orders against inferior judges, or statutory trustees, or commissioners, or the like, this Court is exercising an exclusive jurisdiction—a jurisdiction which cannot possibly belong to any other Court in this country. It is enough to suggest the idea, that an inferior judge should be called upon to ordain another inferior judge to perform his duty—the very idea carries absurdity with it. It can be only the Supreme Court of the country that can possibly exercise such jurisdiction."

The defenders accept that local authorities carrying out their duties under sections 3 and 4 of the Act are not acting in a judicial capacity, but they maintain that the local authorities are then acting in a quasi-judicial capacity, and can be equiparated to or fall into the same category as the statutory trustees and commissioners referred to in the dictum of Lord President Inglis. I find it unnecessary to consider the cases, the institutional writers or the textbooks cited to us in connection with the supereminence of the Court of Session as spoken to by Lord President Inglis. The question is whether the defenders in carrying out their statutory duties here fell within the categories of bodies to whom that doctrine applies. I refer to the purposes of the Act and the duties and responsibilities imposed on the local authorities to effect these purposes. They are the administrators of the policy. They have to carry out certain inquiries, they have to be satisfied on certain matters and they have to do certain things depending on whether they are satisfied or not satisfied about these matters following upon their inquiries. On the face of it there is nothing judicial or quasi-judicial about this exercise. In certain given circumstances the local authority could be "satisfied" as a result of inquiries made only of their own officials, and, provided they did not transgress in one or more of the ways considered by Lord Greene, Lord Denning and Lord Wilberforce, the point on which they were satisfied could not be impugned in a court of law. I can see nothing judicial or quasi-judicial in all this. It seems to me that this function is purely administrative and nothing more. I do not consider that in the execution of their duties under sections 3 and 4 of the Act a local authority can be said to be acting in a quasi-judicial capacity or to be equiparated to the bodies whose decisions were being considered in such cases as the Heritors of Corstorphine v. Daniel Ramsay 10th March 1812 F.C. at p. 544 or Hunter v. School Board of Lochgilphead (1886) 14 R. 135 or indeed in any of the other cases cited to us. The Act conferred rights on individual citizens who qualified for them and responsibility on the local authority to see whether an individual applicant qualified according to the tests laid down. If the local authority transgressed in the execution of their duty in one or other of the limited grounds hereinbefore set out, so that the complaining applicant has legitimate recourse to the courts of law, then prima facie he can go to any court which has the jurisdictional power to grant him the remedy which he seeks. In De Falco supra Lord Denning said at p. 672:

"… this is a statute which is passed for the protection of private persons—in their capacity as private persons. It is not passed for the benefit of the public at large. In such a case it is well settled that, if a public authority fails to perform its statutory duty, the person or persons concerned can bring a civil action for damages or an injunction."

In the instant case, if the Sheriff Court has the jurisdictional power to grant the pursuer the type of remedy or remedies which he seeks there is no reason why he should not have recourse to that Court for his remedies. The remedies sought, namely(1) decrees of declarator,

(2) decrees ordaining the defenders to carry out their legal duties and

(3) a decree for damages are all ex facie remedies which the Sheriff Court can provide. If the remedy sought can be achieved by a form of action within the jurisdiction of the Sheriff Court as well as that of the Court of Session, then there is no need for any specific mention of a mode of appeal or review in the statute. Reference was made to section 39 (1) of the Licensing (Scotland) Act 1976 to support the defenders' contention that a statutory power of appeal or review is required to make the Sheriff Court a competent forum to nullify a decision of any local authority body carrying out comparable duties and making comparable decisions. Each type of body has to be examined with reference to its individual powers and duties to see whether or not it falls within or outwith the dictum of Lord President Inglis. For present purposes I find it suffices to say that since in my view the local authority here was acting not in a quasi-judicial capacity but in an administrative or executorial capacity, review by the supereminent jurisdiction of the Court of Session alone is not imposed. I am accordingly of the opinion that the defenders' first submission on competency is not well founded.

That, however, does not conclude the argument on competency. The defenders submitted that in any event the action was incompetent because what the pursuer was in effect seeking was a reduction of the decision of the defenders that they were not satisfied that the pursuer was not intentionally homeless, and an action of reduction was not competent in the Sheriff Court. Mr Edward described this as a covert action of reduction. It was not in dispute that an action of reduction is not competent in the Sheriff Court. To determine whether this is in effect an action of reduction it is necessary to consider once again and in more detail what the pursuer is seeking to do and whether there is a competent process (or processes) in the Sheriff Court to enable him to achieve that end without resorting to an action of reduction. The pursuer's basic purpose is to have the Court decide and declare that the defenders' decision on "intentionally homeless" was illegal and of no valid effect. If that is established there is no legal barrier to the defenders being called upon to discharge their legal duties under the Act insofar as they have not been discharged legally. What then, is he asking the Court to do? The first crave is in the form of an action of declarator (which is competent in the Sheriff Court—Sheriff Courts (Scotland) Act 1907, section 5) asking the Court to find and declare that the purported decision of the defenders that the pursuer had become homeless intentionally was not a decision which the defenders were entitled to reach. Properly framed, the crave should have included the words "in the circumstances" at the end. It does not ex facie seek a declaration that the decision was not validly made or was null and void, but when it is coupled with the pursuer's first plea-in-law the full nature of the pursuer's complaint becomes apparent. That plea-in-law is in the following terms:

"The purported decision complained of having been one which no reasonable authority could have made, et separatim , made otherwise than on the basis desiderated by the Act, et separatim made without allowing the pursuer to be heard on the averments regarding his case by the defenders' Housing Department, and consequently being unfair and contrary to natural justice, et separatim made without regard to the guidance issued by the Secretary of State, decree should be pronounced in terms of the first crave."

Assuming for the moment that the pursuer has averments habile to substantiate the complaints therein contained, or at least some of them, and these are sufficient to warrant recourse to the courts for a remedy, it seems to me that the pursuer has competently stated a case for inquiry under crave 1. What would be the result of the pursuer obtaining such a declarator? If it was declared that the decision was one which the defenders were not entitled to reach it would mean that it was one which was not effective in law and could not be legally proceeded upon. This in turn would mean that the defenders would require to resume their inquiries under section 3 (2) ( b ) (ii) of the Act to enable them to make a proper decision on the question of whether or not they were satisfied that the pursuer had not become homeless intentionally so that they could follow the procedure under section 4 appropriate to the result. In my opinion this does not necessitate a reduction of the initial decision. The defenders as an administrative body charged by statute with the responsibility of making decisions on being satisfied on certain matters can themselves always countermand a previous decision without it having to be reduced. One would imagine that any responsible local authority would accept the legal consequences of such a declarator if it went contrary to them, and voluntarily resume their inquiries to enable them to make a proper legal decision to replace the illegal one. This would not necessarily mean that they would have to reach a different decision. If, on the other hand, the local authority here refused to take any further action following upon such a decree of declarator, the pursuer could take appropriate action in court to ordain them to carry out their duties under section 3 (2) ( b ) (ii) aforesaid and thereafter to proceed as accords. An action ad factum praestandum can be raised either in the Court of Session or in the Sheriff Court—cf. Walker on Civil Remedies, p. 269. Such an action in relation to this statute would be competent in the Sheriff Court, since for the reasons I have already given, this is not the type of situation to which the rule of supereminent jurisdiction applies. Section 91 of the Court of Session Act 1868 insofar as it relates to this topic is procedural and not regulatory of that Court's privative jurisdiction. In any event, in such a situation at that stage the pursuer could choose the Court of Session as a forum for his remedy.

Pursuer's counsel submitted that the remedy of reduction related only to a deed or writing and it was thus incompetent to reduce a decision which was not in writing. Accordingly, it was said, since this was a decision which was not in writing, reduction was not available to the pursuer, and so some other remedy such as a declarator and an action ad factum praestandum had to be resorted to. In my opinion this point can be dealt with by the short riposte that there is authority for the proposition that actions of reduction can relate to acts as well as writings—cf. Lord Justice-Clerk Boyle in Aitchison v. Magistrates of Dunbar (1836) 14 S. 421 at 425.

The defenders took the technical point that if the first crave stood alone, with the other craves being taken out of the case for some reason or another, the action would be incompetent, since an action of declarator requires an additional executorial conclusion and cannot stand alone. In the instant action the crave for declarator does not stand alone, since, assuming that it has been relevantly pled, there is at least a crave for damages which to a major extent hinges on crave 1 being granted. In any event, in the case of Unigate Foods Ltd. v. The Scottish Milk Marketing Board 1975 S.C. (H.L.) 75, Lord Fraser said at p. 110 in relation to a conclusion for a declarator which was left standing by itself:

"…I am of opinion that decree of declarator should be pronounced. Such a decree would not be abstract or hypothetical. On the contrary, it would decide a live practical question."

To quote the words of Lord Justice-Clerk Thomson in Macnaughton v. Macnaughton's Trs . 1953 S.C. 387 at p. 392:

"It would, in fact, decide the question at the root of the controversy between the parties."

Applying that test to the circumstances of this case, the answer to the first (declaratory) crave would decide the question at the root of the controversy between the parties and the crave could accordingly stand alone.

I find comfort in finding that the Sheriff Court has jurisdiction for judicial review of controversies of this nature under the Act. Having regard to the administrative nature of the procedure, the type and nature of the decision which falls to be reviewed judicially by the Court in its supervisory capacity and the convenience of all concerned throughout the length and breadth of Scotland, the Sheriff Court is appropriately suited for the purpose. To require the Court of Session to find time to determine the kind of issue likely to be involved is somewhat akin to taking a sledge-hammer to crack a nut, and unless, contrary to my view, the law requires such cases to go to the Court of Session, where they could go in any event, it seems to me desirable that they should go to the Sheriff Court or at least be capable of going there for resolution.

Before turning to consider questions of relevancy as distinct from questions of competency, I pause to consider the effect of the conclusions which I have reached on the craves as they are stated. The first crave is straightforward and in order. The first alternative in the second crave is in my view clearly out of order. It proceeds on the assumption that on the facts elicited by the inquiries which the defenders actually made or purported to have made they were bound to be satisfied that the pursuer did not become homeless intentionally and thus became bound to secure that accommodation became available for the pursuer's occupation in terms of section 4 (5) of the Act. That does not follow from a declarator in terms of crave 1 based on the pursuer's first plea-in-law. That, as already indicated, would only result in the defenders having to go back to the section 3 (2) ( b ) (ii) position with a view to obtaining sufficient relevant information to discharge their appropriate duties under section 4 depending on the decision reached on "intentionally homeless." On that view, that part of the second crave is premature since the duty under section 4 (5) only arises after a valid decision has been reached that the applicant was not homeless intentionally. If, on the other hand, it means that on the facts as stated, albeit challenged, the defenders were bound to find that the pursuer had not become homeless intentionally, what the pursuer is asking the Court to do is in effect to sit in judgment in place of the local authority, and this is something which the Court must not do. If this case is to proceed, that part of the second crave is at least premature and must be deleted. So far as the second part of the crave is concerned, if the case goes back to the section 3 (2) ( b ) (ii) position the terms of section 3 (4) will come into operation only if and when the factual situation requires its invocation. It is not required in hoc situ as accommodation has been provided by the defenders and it has not been relevantly averred that this accommodation is not adequate—cf. infra . In my opinion, therefore, that part of the second crave is also premature and should be deleted. If the case takes the course which in my opinion it should, then the first alternative in the third crave is also premature and should be deleted. It seems to have been included as a follow-up to the first alternative in the second crave with which I have dealt above, and the remedy sought can only be granted if there has already been a finding of "intentionally homeless" and a failure to secure that accommodation has been made available. As the second alternative in this crave seems a follow-up to the second alternative in crave 2, it too is premature and falls to be deleted. The fourth crave must stand if it meets the test of relevancy. If that analysis be correct, what course should the case take in relation to what survives? This depends on the answer to the first crave. If the pursuer fails on that the rest of his case goes except on the limited ground of damages hereinafter referred to. If the pursuer succeeds on the first crave the door is opened to the revival of his application to be housed in terms of the Act and he has his limited ground of damages. On the basis that the pursuer has relevantly pled a case on crave 1 and on crave 4 (in whole or in part) I consider that the appropriate course would be to allow a Proof before Answer on these two craves. All this, however, is conditional on the pursuer satisfying the tests of relevancy quoad these craves.

The test of the relevancy of the pursuer's pleadings in relation to crave 1 turns on his averments in support of his first plea-in-law. Are they sufficient to meet the standards set by Lord Greene and the others to warrant the case being in the courts of law at all? I need not go into the respective averments in full detail. A number of the averments of the defenders are admitted by the pursuer, but his averments on the Closed Record from page 6C to page 8C are contentious. The principal points in the defenders' averments are:(1) that the pursuer's wife and then the pursuer received a rent allowance of five pounds per week from D.H.S.S. as part of their Supplementary Benefit (even though the pursuer's wife and not the pursuer was the tenant) and this rent allowance was not paid to the defenders. If this rent allowance had been paid to the defenders by the pursuer's wife and the pursuer no further payment would have been due by them. This is admitted by the pursuer:

(2) that following the pursuer making his application for accommodation to the defenders' Housing Officer on or about 5th December 1978 the latter made inquiries. He asked the pursuer certain questions having first of all explained to the pursuer the relevant provisions of the Act. The pursuer signed a declaration to this effect and also to the effect that he understood the consequences of supplying false information or of failure to supply relevant information. The answers which the pursuer gave to the questions were entered by the Homeless Officer on two forms, each of which and the declaration were signed by the pursuer. These documents are produced and referred to for their terms:

(3) that the long history of the failure by the pursuer's wife (who was the legal tenant) to pay the rent, despite various indulgences granted by the defenders which are fully set out, warranted the eviction of the pursuer's wife and the pursuer. This long history was summarised to the Homeless Officer by an official of the Housing Department in the presence of the pursuer, who neither disputed nor contradicted any of it:

(4) that in the circumstances the defenders were entitled to be satisfied that the pursuer had become intentionally homeless in terms of section 17 of the Act:

(5) that the Homeless Officer told the pursuer that he considered him to be "intentionally homeless" and advised him to seek accommodation with relatives or friends, there being no other advice or assistance he could offer: and

(6) that as the pursuer had stated that he had temporary accommodation at 36 Caithness Street it was unnecessary to find him accommodation in terms of section 3 (4) of the Act. In March 1980, however, under an order from the Sheriff the defenders were obliged to provide the pursuer with a house, which he and his wife still inhabit.

The pursuer's averments can be summarised thus: The defenders' history of events as recited supra was not substantially contradicted. The only points in dispute related to(1) the justification for the eviction from 16 Welsh Drive;

(2) the consequential finding of "intentionally homeless" in terms of section 17; and

(3) the justification for the defenders regarding the accommodation which the pursuer and his family had obtained at 36 Caithness Street as sufficiently satisfactory to warrant the defenders in considering that it constituted accommodation for the purposes of section 1 of the Act. The pursuer's criticisms and complaints of the defenders' conduct related not so much to what they did as to what they failed to do. These omissions can be tabulated thus: (1) The nature and result of the defenders' inquiries under section 3 of the Act were not put to the pursuer or his wife, and the pursuer was given no opportunity to refute or comment upon the views expressed, as he could have done and would have done if he had been so permitted; (2) although it was a basic point in the defenders' justification for taking the course which they did and in arriving at their decision on "intentionally homeless" that the pursuer, who was not the tenant, had failed to make any attempt to pay the rent and maintain the tenancy of the house, no inquiry was made by the defenders at any time of the pursuer or his wife as to the circumstances surrounding this alleged failure, and in particular no inquiry was made of the pursuer's financial circumstances during the relevant period. In particular it is alleged that no inquiry was made which might have elicited whether the pursuer's failures were "deliberate" in the sense of section 17 of the Act; (3) no assessment or comment from the Social Work Department was requested and no regard was given to the strong recommendation in the Scottish Development Department Circular 13/1978 that such assessment or comment should be requested. I pause to observe that while the contents of that circular were not binding on the local authority, the authority should have had regard to it, although they could depart from it if they thought fit—cf. Lord Denning in De Falco supra at p. 673. In the circumstances, no reasonable housing authority could have been satisfied that all necessary inquiries had been carried out or that the pursuer was "intentionally homeless";

(4) had the defenders carried out further enquiries as they ought to have done, they would have discovered that the pursuer and his wife had at all relevant times been in dire poverty and solely dependent for their income on Supplementary Benefit; that the pursuer's wife had for a period believed herself, mistakenly but in good faith, not to be liable to pay rent to the defenders under her said tenancy; that the defenders' Housing Department had consistently refused to make any reasonable arrangement with the pursuer's wife for the payment of rent arrears; that the defenders did not request the Department of Health and Social Security to have the pursuer placed on the "Rent Direct" scheme made under section 14 (3) of the Supplementary Benefit Act 1976; and that the pursuer, never having been the tenant of the house at 16 Welsh Drive, had been under no legal obligation to maintain a tenancy thereof; and

(5) in these circumstances the defenders could not have been satisfied that the pursuer was intentionally homeless in respect of failure to make any attempt to pay rent or maintain the tenancy of the house. That being the state of the pleadings in broad terms, how do they stand on the question of relevancy in relation to the craves which are still alive? So far as the first crave is concerned, the pursuer's contention is contained in his first plea-in-law read in conjunction with the averments to which I have just referred. As a record has to be read as a unum quid it is competent to have regard to the pleas-in-law as well as the averments when considering matters of relevancy. So read, I have come to the conclusion, not without difficulty, that the pursuer's pleadings, bare as they are in some respects, are sufficient to warrant a Proof before Answer on the question whether the elements or at least one or more of them contained in the dictum of Lord Greene have been sufficiently averred to bring the review of the local authority's decision within the ambit of the Court's jurisdiction. His averments on the basis of which he alleges the procedure carried out was unfair and contrary to natural justice cannot be regarded as so insufficient that, if they were established before a reasonable tribunal of fact, that tribunal would still have to find that the local authority was entitled to be satisfied that the pursuer became intentionally homeless. Apart from all the other considerations, the fact is that, however the pursuer may have contributed to the non-payment of rent which was the reason for the eviction from the house at 16 Welsh Drive and which occasioned him to be homeless, his wife was the tenant and it was against his wife that the eviction order was obtained. That is a consideration which has to be taken into account. What weight should be given to it is another matter. These are all matters which, according to the pursuer, ought to have been taken into account but were not.

The pursuer has taken a plea to the relevancy of the defenders' pleadings and seeks decree de plano thereon, but in my view the defenders' pleadings are clearly habile to justify a proof thereof in relation to crave 1. As I have decided to allow a Proof before Answer thereon on the pursuer's pleadings I consider it appropriate quoad the first crave not to sustain or repel pleas to the relevancy at this stage but to leave them standing.

So far as damages are concerned, the various items of damage which the pursuer claims he has suffered have to be looked at in the light of what I have considered to be the effect if crave 1 is granted. Craves 2 and 3 are out of the case. If the defenders' decision on "intentionally homeless" is invalid, and the application must be deemed to be still at the section 3 stage in relation to inquiries and no decision on "intentionally homeless" has been reached, no duties under section 4 (5) or section 4 (3) have yet arisen and so no loss or damage has so far arisen thereunder. However, on any view, there has been a failure in duty by the defenders if they were wrong in proceeding on the basis that the accommodation which the pursuer and his wife had at 36 Caithness Street rendered it unnecessary for them to find the pursuer accommodation in terms of section 3 (4) of the Act. The pursuer avers that the accommodation at 38 Caithness Street for himself, his wife and their children was overcrowded and did not constitute accommodation for the purpose of the Act. I reject the argument that as long as accommodation was available it did not matter what the nature of the accommodation was. In my view it must be reasonable accommodation in all the circumstances. A pig-sty could be accommodation but not reasonable accommodation. It is all a question of fact. The pursuer and his wife and their children were in that temporary and allegedly overcrowded accommodation from 5th December 1978 to March 1980. The pursuer avers that this inter alia caused him great distress and inconvenience. He would be entitled to proof on that cf. Thornton v. Kirklees Metropolitan Borough Council [1979] Q.B. 626. The period in respect of which he is entitled to claim damages under this head depends on the decision on the first crave. Of course any right to damages under this head depends on him establishing that the accommodation at 36 Caithness Street did not constitute accommodation for the purposes of the Act. If he does so, and if he succeeds in his first crave, then the period would be from 5th December 1978 to March 1980 when he was provided with a house by the defenders under an order of the Court. If he fails in his first crave, then the period would be restricted to from 5th December 1978 to 12th December 1978 when the defenders notified him that they had decided that he had become homeless intentionally. He avers that even after the defenders provided him with a house in March 1980 that accommodation was inadequate and unsafe. That is clearly lacking in specification. He does not say in what respect it was (and is) inadequate and unsafe. On that score I do not consider that this vague claim which gives no proper notice to the defenders can be remitted to probation. He further maintains that his prospects of employment were reduced due to his insecure home situation. He fails to aver how the latter brought about the former and once again this head of claim has to be excluded for lack of specification. He has a further alleged loss due to what he describes as the defenders' refusal to permit him to register an application with them for selection as a tenant in terms of section 151 (2) of the Housing (Scotland) Act 1966 as amended. Having regard to the provisions of that subsection this is clearly an irrelevant claim. The result of all this is this. If the pursuer succeeds on his first crave he has his general claim for damages in respect of the great distress and inconvenience which he alleges he has suffered as a result of the defenders' failure in such of their duties as remain having regard to the craves still standing. This would include the claim in respect of the alleged failure in the section 3 (4) duty over the longer period referred to supra . If the pursuer fails on his first crave, he is still entitled to prosecute a claim under section 3 (4) but only in respect of the shorter period referred to supra . In addition, on the basis that the accommodation at 36 Caithness Street was not accommodation in terms of the Act, he is entitled to a claim in respect that following intimation of the decision on 12th December 1978 proper accommodation for a limited period was not secured for him by the defenders under and for the purposes of section 4 (3) of the Act.

I would accordingly allow the appeal; repel the second, third and fourth pleas-in-law for the pursuer; repel the first three pleas-in-law for the defenders; sustain the fourth pleas-in-law for the defenders quoad(1) craves 2 and 3 and

(2) the averments in support of the fourth crave apart from those in support of the heads of claim indicated supra on which I consider that there should be inquiry: and quoad ultra allow parties a Proof before Answer.

LORD ROBERTSON .—The long and complicated history of this action has been very fully set out by your Lordship, and I do not require to repeat it in detail. The pleadings and the issues are very different from those initially set out. The Sheriff originally repelled the defenders' pleas to the competency, jurisdiction and relevancy of the pursuer's case and continued it to the procedure roll, and against this decision the appeal to this Court was taken. After sundry procedure and extensive amendment to the pleadings the appeal came before this Court for the third time on 30th September 1981 and following days.

The pursuer's case now has four separate craves, including a new crave 4 for damages. The defenders have tabled two pleas to the competency of the action, a plea of "No Jurisdiction," as well as a general plea to the relevancy and specification of the pursuer's case, all of which were pressed in the debate before us.

On behalf of the defenders and appellants it was submitted:—(1) The action as laid is incompetent in the Sheriff Court for two reasons, videlicet —( a ) it seeks to achieve by action of declarator what cannot be achieved by that type of action and can only be achieved by action of reduction, which is competent only in the Court of Session; and ( b ) even if the desired result could be achieved by action of declarator, the declaration of the type sought in this case could only be granted in the Court of Session. (2) The action is irrelevant because the pursuer's averments read together with his admissions would not entitle him to the remedy sought. (3) The pursuer's claim that, even if he cannot proceed with the action under the first three craves, he is still entitled to proceed in the Sheriff Court for damages in the action, is unsound.

The preliminary broad question raised by the pursuer's action is whether it is competent to challenge in a court of law a decision made by a local authority under the Housing (Homeless Persons) Act 1977. That Act broadly placed upon the local authority duties with respect to persons homeless or threatened with homelessness. These have been set out in detail by your Lordship and I do not require to repeat them. These duties are precise and extensive. The local authority has to make inquiries, carry out certain procedures, and make decisions on the basis of being satisfied following upon these inquiries. The Act makes no provision for appeals from the decisions of the local authority upon these matters either on a question of fact or of law. In these circumstances the preliminary question arises as to the principles upon which the Courts may interfere and scrutinise the decision of a local authority in such a matter. The principles in England are summarised by Lord Greene M.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation

[1948] 1 KB 223

at 228 et seq. This passage, quoted by your Lordship, sets out the circumstances in which a Court may interfere with an executive act by a local authority within its discretion. The Court must not substitute itself for the authority. The Court may interfere only when it is alleged that the local authority has contravened the law. The circumstances in which such interference may be justified are set out by Lord Greene (see also Secretary of State for Employment v. ASLEF ( no. 2 ) [1972] 2 Q.B. 455, Lord Denning M.R. at 493; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council

[1977] AC 1014

, Lord Wilberforce at 1024; Regina v. Bristol City Council [1979] 1 W.L.R. 1437). Provided that the local authority's discretion has been exercised properly and without infringing any principles of law, then it cannot be reviewed by the Court, if the power of the local authority is executive and not judicial or quasi-judicial. Accordingly it is incumbent upon a pursuer in such a case relevantly to aver that the local authority has by its decision infringed these principles and contravened the law.

If this is right, it is competent for a person aggrieved by a local authority's decision in the exercise of such a discretionary power to bring the matter before the Courts, if relevant averments can be made. This is not disputed in the present case. It was not suggested that in this matter the law of Scotland did not recognise these principles set out in the English cases referred to supra . But the defenders maintain that, if relevant averments have been made, the action is competent only in the Court of Session, and not in the Sheriff Court.

I have set out as a preliminary the considerations in regard to the circumstances in which a local authority's executive decision in such a matter may be challenged in the Courts, because they have a bearing upon the initial argument strongly maintained on behalf of the defenders. This argument was based upon the decision in Forbes v. Underwood (1886) 13 R. 465 and particularly the opinion of Lord President Inglis at p. 467. There the Lord President sets out the pre-eminence of the Court of Session, and its supereminent jurisdiction, in controlling the exercise of these powers by inferior judges. "There is no doubt whatever," the Lord President says at p. 467, "that whenever an inferior judge, no matter of what kind, fails to perform his duty, or transgresses his duty, either by going beyond his jurisdiction, or by failure to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this Court… The same rule applies to a variety of other public officers, such as statutory trustees or commissioners… But of one thing there can be no doubt, that in making such orders against inferior judges, or statutory trustees or commissioners, or the like, this Court is exercising an exclusive jurisdiction—a jurisdiction which cannot formally belong to any other Court in this country. It is enough to suggest the idea, that an inferior judge should be called upon to ordain another inferior judge to perform his duty—the very idea carries absurdity with it. It can only be the Supreme Court of the country that can possibly exercise such jurisdiction."

But it is in my opinion clear that the Lord President was confining his remarks to subordinate judges who are acting in a judicial or at least quasi-judicial capacity—in Forbes v. Underwood it was an arbiter. Local authorities are not acting in a judicial capacity in carrying out executive functions under the Housing (Homeless Persons) Act, nor in my opinion are they carrying out quasi-judicial functions. They are simply acting as administrators of executive functions placed upon them by the Act (cf. De Falco v. Crawley Borough Council 1980 Q.B. 460, Denning M.R. at 476, Lord Justice Bridge at 479). So the citizen aggrieved by the act of such an authority carrying out these functions is not affected in my opinion by the restrictions set out by Lord President Inglis. If he can competently raise an action in the Sheriff Court he is entitled to do so. I do not think that the Court of Session alone has jurisdiction in such a matter for the reasons given in Forbes v. Underwood .

But it was also argued on behalf of the defenders that the action was incompetent in the Sheriff Court for another reason, videlicet —it was not a true action of declarator but was in reality a disguised or covert action of reduction. Actions of reduction are not competent in the Sheriff Court; this is not disputed. But jurisdiction in actions of declarator was extended to the Sheriff Court in 1907. Section 5 of the Sheriff Courts (Scotland) Act 1907, under the heading " Extension of jurisdiction ," reads as follows, videlicet —"5. Nothing herein contained shall derogate from any jurisdiction, powers, or authority presently possessed, or in use, to be exercised by the Sheriffs of Scotland, and such jurisdiction shall extend to and include—(1) Actions of declarator (except declarators of marriage or nullity of marriage, and actions… to determine the personal status of individuals…)."

Fundamentally this question seems to me to depend upon the terms of the declarator which is sought: in crave 1 the declarator sought is that "the purported decision of the defenders that they were satisfied that the pursuer had become homeless intentionally in terms of section 17 of the Housing (Homeless Persons) Act 1977 was not a decision which the defenders were entitled to reach." Clearly this means "in the circumstances." That does not seem to me to involve a reduction of anything. If the stated proposition were established, it would simply mean that in fact the defenders as housing authority would have to start again and carry out the procedure properly. If the local authority refused to carry out their duty after the decree of declarator had been pronounced, the pursuer would be entitled to call upon them afresh to carry out their legal obligations to him. The defenders as local authority, democratically elected, are at liberty to make another, possibly different, decision at any time. Such a decision is always made in, and depends upon, the circumstances then prevailing, and if a new application were presented for a fresh decision the circumstances might well be different, as might the decision.

The first plea-in-law for the pursuer demonstrates the various grounds which he puts forward in support of his first crave, and if the averments in support of these grounds are relevant, and under reference to what I have said supra , the defenders' second argument on competency is not in my opinion well founded.

As a subsidiary argument on competency, the defenders submitted that the first crave, standing alone, would be an empty declarator and that it was incompetent without some further operative crave. While in the past this point—a technical one—has been frequently advanced successfully, it is now settled that, following Macnaughton v. Macnaughton's Trs . 1953 S.C. 387, a declarator is not empty in this way if it decides a live practical question between the parties. This the declarator in terms of the first crave would undoubtedly do (see also Unigate Foods Ltd. v. The Scottish Milk Marketing Board 1975 S.C. (H.L.) 75, Lord Fraser of Tullybelton at 110). And once this question, lying "at the root of the controversy between the parties" (Lord Justice-Clerk Thomson's words in Macnaughton's Trs. cit. sup .), was decided, further action could be easily taken, if necessary.

I therefore am of the opinion that the defenders' pleas to the competency of the action should be repelled.

So far as the second and third craves are concerned, I am in agreement with your Lordship that the various craves therein are clearly premature and do not arise at present. If the pursuer were successful in his first crave it would not follow that the duties adumbrated in the second and third craves ensue. A valid decision in his favour in terms of section 17 of the Act would still be a necessary preliminary. I therefore agree that the fourth plea-in-law for the defenders should be sustained quoad the pursuer's craves 2 and 3.

So far as the pursuer's first crave is concerned, it was maintained by the defenders that the averments supporting it were irrelevant et separatim lacking in specification, and that the pursuer was not entitled to a proof thereon. Your Lordship has referred to the pursuer's averments in considerable detail and I do not think that I can add anything useful on this branch of the case. The averments have to be measured and considered within the framework, and with the background, of the dicta of Lord Greene M.R. already referred to. So considering them I agree with some hesitation with your Lordship that a proof before answer should be allowed upon crave 1.

There remains the question of damages, raised under the pursuer's crave 4. As the pursuer's craves 2 and 3 fall to be dismissed, most of his case on damages falls also. But there is a question which arises upon the averments relating to the actions of the pursuer after the defenders' criticised decision that he was "intentionally homeless." From the defenders' averments in Answer 2 at p. 16CD of the Closed Record it appears that, at the time when he was informed that he was considered to be "intentionally homeless" on 5th December 1978, he stated that he had temporary accommodation at another address, and that it was therefore unnecessary (so it is averred) to find him accommodation in terms of section 3 (4) of the Act. The pursuer in reply admits that on that date he was residing at that other address, "the home of another member of his family," under explanation that the said house was overcrowded and did not constitute "accommodation" for the purposes of the Act. Apparently the pursuer and his wife and family remained at this address until they were provided with alternative accommodation by the defenders ( per the Sheriff) in March 1980.

I agree with your Lordship that, on the assumption that the pursuer was entitled to decree under his first crave, the defenders had a duty to provide him and his family with reasonable accommodation. He avers that their failure to do so caused him great distress and inconvenience. In these circumstances I agree, with some hesitation, that his averments are sufficient to entitle him to a Proof on damages limited as set out by your Lordship. It also appears that he may also be able to constitute a claim for damages upon these averments under section 3 (4), even if he fails under his first crave. I have no doubt that, apart from the averments I have mentioned, the pursuer's remaining averments relating to damages are wholly lacking in specification and irrelevant.

I accordingly agree that the appeal should be dealt with in the way suggested by your Lordship.

LORD DUNPARK .—The principal issue in this appeal is whether the Sheriff Court has a supervisory jurisdiction to review and declare null the decision of Hamilton District Council (the appellants) made as the housing authority under the Housing (Homeless Persons) Act 1977 (hereinafter referred to as "the Act") that the respondent became homeless intentionally. The respondent, who had applied to the appellants under the Act for accommodation as a homeless person, contested this decision by raising, what is in effect, an action of declarator of nullity in the Sheriff Court. The appellants pleaded that the action was incompetent in the Sheriff Court inter alia for want of jurisdiction. The Sheriff repelled the appellants' pleas to competency and held that the action was competent in the Sheriff Court. Against this decision the District Council has appealed.

The Act gives no right of appeal against decisions made by housing authorities in pursuance of the duties imposed upon them by the Act. The respondent's case is that the decision that he became homeless intentionally is null and void. There is no doubt that the Court of Session, in the exercise of its supereminent jurisdiction to review decisions of inferior courts and administrative bodies, may reduce decisions which it finds to be null for whatever reason. It was conceded by counsel for the respondent that the Sheriff Court has no jurisdiction to review and quash decisions of inferior courts, but they submitted that it does have power to review decisions of administrative bodies and in effect to quash them, but only by declaring them to be null—not by decree of reduction which, it was necessarily conceded, is the prerogative of the Court of Session. If this was an administrative decision and the Sheriff Court has the power to declare it null, then this action is, in my opinion, competent in the Sheriff Court; if it does not have this power, the action must be incompetent.

The first crave for declarator that the decision was not one "which the defenders were entitled to reach" is supported by the respondent's first plea-in-law, which is in the following terms:—

"The purported decision complained of having been one which no reasonable authority could have made, et separatim ,made otherwise than on the basis desiderated by the Act, et separatim made without allowing the pursuer to be heard on the averments regarding his case by the defenders' Housing Department, and consequently being unfair and contrary to natural justice, et separatim made without regard to the guidance issued by the Secretary of State, decree should be pronounced in terms of the first crave."

The first crave is, therefore, in effect for declarator that the decision was null and void for two main reasons, videlicet ,(1) because the appellants, in reaching their decision, failed to perform the duties laid upon them by the Act, et separatim

(2) because the procedure which they adopted in reaching that decision was contrary to the principles of natural justice. What in effect the respondent asks the Sheriff to do is to quash the decision by declaring that the appellants were not entitled to make it.

Prior to the Sheriff Courts (Scotland) Act 1907 there was no Sheriff Court procedure which enabled that Court to quash a decision of other bodies. The only judicial decrees which can achieve that result are reduction and declarator of nullity. An action of reduction was, and still is, incompetent in the Sheriff Court, although section 11 of the Sheriff Courts (Scotland) Act 1877 (now Rule 50 of the First Schedule of the 1907 Act) provided for reduction ope exceptionis ; but this rule does not enable the Sheriff to set aside a document which forms the basis of a party's alleged right of action or the basis of a defence against an attack on title (see Donald v. Donald , 1913 S.C. 274). Section 8 of the 1877 Act expressly extended the jurisdiction of Sheriffs to include(1) actions of declarator relating to questions of heritable right or title, subject to a monetary limit, and

(2) actions of declarator for the purpose of determining any question relating to the property in, or right of succession to, moveables subject again to a monetary limit. This Act was repealed by the Sheriff Courts (Scotland) Act 1907, and the jurisdiction of the Sheriff was extended by section 5 (1) to include "Actions of declarator (except declarators of marriage or nullity of marriage and actions the direct or main object of which is to determine the personal status of individuals)."

The argument for the respondent is that, as the present action of declarator is not expressly excluded by section 5 (1), the effect of that section was to extend the jurisdiction of the Sheriff by implication to include the power to review administrative decisions of statutory bodies by actions of declarator. The Sheriff seems to have taken section 5 (1) at its face value and to have held that this action of declarator was included in the section because it was not expressly excluded. He does not seem to have been favoured with the weighty arguments which we heard anent the extent of the respective jurisdictions of the Court of Session and of the Sheriff Court before 1907 in relation to the power to review and quash decisions of inferior courts and other bodies, nor does he seem to have been referred to any of the large number of authorities which were cited to us as relevant to this point. It seems to me to follow from the Sheriff's decision that it is to be assumed that Parliament decided that it was not necessary to insert in the Housing (Homeless Persons) Act 1977 an express power to review decisions made under the Act because it knew that Sheriffs already had this power. I am not prepared to accept this speculative assumption. One possible alternative is that Parliament deliberately refrained from conferring this power because it intended that there should be no appeal against such decisions and knew that the Court of Session alone had the power to reduce such decisions under the Housing (Homeless Persons) Act 1977 as were demonstrated to be null.

It certainly cannot be inferred from the summary petition procedure, introduced by section 91 of the Court of Session Act 1868, that the Sheriff has now power to review administrative decisions. This procedure has so far been used in several cases under the Housing (Homeless Persons) Act 1977. While expressing no opinion as to the competency of a summary petition which involves review by the Court of Session of the validity of a decision made under this Act, I observe that it is singularly ill-suited for this purpose.

I have thus far been following my own line of thought rather than the arguments of counsel. The first submission for the appellants was that this was a decision "of a judicial nature" and that review of such decisions was only competent in the Court of Session, unless the Sheriff Court had expressly been given the power to review and quash the decision in question. Counsel for the respondent, on the other hand, submitted that there was nothing judicial in the nature of this decision. Standing their concession that an action of declarator of nullity in the Sheriff Court was not a competent process for review of judicial or quasi-judicial decisions, it is an essential prerequisite of their argument that this action was competently brought in the Sheriff Court that the relevant decision of the appellants in this case must properly be classified as an administrative one—alternatively, that it cannot be classified as a decision "of a judicial nature."

It seems to me that counsel's concession was based upon the following passage from the opinion of Lord President Inglis in Forbes v. Underwood (1886) 13 R. 465, at pp. 467–8:—

"The question raised in this action is, whether Mr Winton has wrongfully failed to perform his duty as arbiter, and the remedy sought is a decree against him to compel him to do so. The question whether the Sheriff has jurisdiction in such a case is, I think, one of very great importance. The position of an arbiter is very much like that of a judge in many respects, and there is no doubt whatever that whenever an inferior judge, no matter of what kind, fails to perform his duty, or transgresses his duty, either by going beyond his jurisdiction, or by failing to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this Court, and the inferior judge, if it turns out that he is wrong, may be ordered by this Court to go on and perform his duty, and if he fails to do so he will be liable to imprisonment as upon a decree ad factum praestandum . The same rule applies to a variety of other public officers, such as statutory trustees and commissioners, who are under an obligation to exercise their functions for the benefit of the parties for whose benefit these functions are entrusted to them, and if they capriciously and without just cause refuse to perform their duty they will be ordained to do so by decree of this Court, and failing their performance will, in like manner, be committed to prison. Now, all this belongs to the Court of Session as the Supreme Civil Court of this country in the exercise of what is called, very properly, its supereminent jurisdiction. It is not of very much consequence to determine whether it is in the exercise of its high equitable jurisdiction, or in the performance of what is sometimes called its nobile officium .But of one thing there can be no doubt, that in making such orders against inferior judges, or statutory trustees, or commissioners, or the like, this Court is exercising an exclusive jurisdiction—a jurisdiction which cannot possibly belong to any other Court in the country. It is enough to suggest the idea, that an inferior judge should be called upon to ordain another inferior judge to perform his duty—the very idea carries absurdity with it. It can be only the Supreme Court of the country that can possibly exercise such jurisdiction."

I observe in passing that in 1886 there was no form of process available in the Sheriff Court which enabled that Court to review and quash decisions of any kind upon the ground that they were ultra vires or that the principles of natural justice had been breached. However, I infer from the opinion of the Lord President that he would never have concluded that the Sheriff Court had jurisdiction to review decisions of a judicial or quasi-judicial nature, unless that power had been granted by statute in plain and unequivocal terms.

The proposition proponed by senior counsel for the appellants, as I noted it, was this:—

"If a statute imposes a duty on a local authority to inquire into facts with a view to finding specified facts, its decision is of a quasi-judicial nature."

He maintained that, as the Act had imposed the duty upon housing authorities of making decisions in relation to a class of persons for whose benefit the duty was imposed, the appellants' decision in this case must properly be regarded as one of a quasi-judicial nature. He submitted that an examination of the terms of the Act supported this classification.

My own examination of the Act shows that a housing authority, to whom an application is made under the Act, must make "appropriate inquiries," as defined in section 3 (2), in order to be satisfied whether the applicant ( a ) is homeless or threatened with homelessness; ( b ) has a priority need; and ( c ) became homeless or threatened with homelessness intentionally. Different duties stem in section 4 from different states of satisfaction. Section 17 certainly requires interpretation by the housing authority in order to decide whether or not they are satisfied that an applicant became homeless or threatened with homelessness intentionally; but my examination of the terms of the Act leaves me unconvinced that even this third and last fact, upon which the housing authority have to make a finding, involves anything akin to judicial procedure.

Section 3(1) directs the housing authority to make "appropriate inquiries." The terms of section 3

(2) define "appropriate inquiries" as follows:—

"In subsection (1) above ‘appropriate inquiries’ means—( a ) such inquiries as are necessary to satisfy the authority whether the person who applied to them is homeless or threatened with homelessness, and ( b ) if the authority are satisfied that he is homeless or threatened with homelessness, any further inquiries necessary to satisfy them—(i) whether he has a priority need, and (ii) whether he became homeless or threatened with homelessness intentionally."

In my opinion that subsection confers upon housing authorities some discretion to decide the extent of the inquiries which are necessary to enable them to make the decisions which section 3 (2) requires them to make.

I look at the functions which the Act gives to housing authorities. They all relate to the provision of accommodation for applicants who need it. This is an administrative function, which is to be fulfilled by inquiring into matters relevant to the decisions specified in the Act. The fact that decisions have to be made does not, in my opinion, necessitate the classification of these decisions under the head "quasi-judicial." Indeed, the statutory requirement that housing authorities make their own inquiries and decisions is, in my opinion, inconsistent with the concept of the judicial function.

Senior counsel for the respondent submitted that a lis was an essential requisite of a decision of a judicial or quasi-judicial nature, and that two contestants and a judge were necessary ingredients of a lis . He referred to passages in the speeches of Lord Reid and Lord Salmond in Sutcliffe v. Thackrah [1974] A.C. 727, at pp. 735 and 737, and 759 respectively. The issue in that case was whether or not architects, in issuing interim certificates under a building contract, were acting in a judicial capacity. Although the facts were far removed from those in this case, Lord Salmond did say that the description "‘quasi-judicial functions’ … cannot mean more than in much the same position as an arbitrator or judge."

Reference was made to Bennett Miller on Administrative and Local Government Law, pp. 120–1, where he quotes from a Committee Report which distinguishes the ingredients of judicial decisions from quasi-judicial ones. In some cases this distinction may be helpful, but its application to this case does not assist me to classify this decision as quasi-judicial or administrative. In my opinion, a housing authority when making "such inquiries as are necessary to satisfy them" as to the existence of any of the three facts specified in section 3 (2), is not performing a quasi-judicial function, but an administrative one.

There is one factor common to this case and that of Sutcliffe ,namely, that neither the appellants here nor the architects in Sutcliffe were called upon to adjudicate upon a dispute between two parties. In each case the dispute only arose as a result of the decision made. That, taken together with the nature of the functions of housing authorites imposed by the Act, convinces me that the appellants' decision in this case cannot reasonably be classified as one "of a judicial or quasi-judicial nature."

But, assuming that the decision cannot be so classified, the question remains whether it was a decision which may competently be reviewed and quashed in the Sheriff Court.

The secondary submission on competency made by counsel for the appellants was that, esto , it was a decision of an administrative kind, the review of such a decision was competent only in the Court of Session unless the Sheriff Court had expressly been given the power to review and quash the decision in question. Counsel for the respondent, on the other hand, referred to Mackay's Manual of Practice, p. 94, and submitted that the Court of Session and the Sheriff Court exercise a concurrent jurisdiction except upon the grounds which are exclusive to the Court of Session, as narrated by Mackay in his previous chapter on "Privative Jurisdiction." Counsel submitted that, since no reference was made to the Court of Session having privative jurisdiction to review the decisions of the administrative bodies, there must be concurrent jurisdiction. They further founded on the fact that there was a total absence of authoritative support for the appellants' contention that this jurisdiction was exclusive to the Court of Session. The short answer to this point is that there is no authoritative support for the view that the Sheriff Court has a general supervisory jurisdiction over any decisions of statutory bodies.

In Aitchison v. Magistrates of Dunbar (1836) 14 S. 421. at p. 425, Lord Justice-Clerk Boyle said:—

"The Court of Session is the only tribunal competent to reduce an illegal act, or declare its illegality."

That statement was unchallengeable at that time, and I find nothing in the authorities, either before or after 1907, to contradict it. Counsel for the respondent referred to three cases initiated in the Sheriff Court, and I understood the suggestion to be that these cases were inconsistent with the Lord Justice-Clerk's statement of the law. The three cases were:— Maclean v. Donald (1840) 2 D. 528, Trainer v. Renfrewshire U.D.C . 1907 S.C. 1117 and the Secretary of State for Scotland v. Fife County Council 1953 S.C. 257. In none of these cases, however, was there a crave for reduction or declarator of nullity. The last was a petitory action, and the remedy sought in Trainer was interdict.

It may be argued that, as the Sheriff has jurisdiction to interdict a wrongdoer, he must have jurisdiction to adjudicate on the illegality of acts and, therefore, if a person sought to interdict a statutory body from acting illegally, he might preface the interdict crave with a declaratory one in the Sheriff Court. This generality does not, in my opinion, assist the respondent in this case. The remedy which this respondent seeks is not the prohibition of an illegal act, but a declaration that the decision in question was not one which the defenders were entitled to reach. This declaration cannot be granted unless the Court, after reviewing the facts upon which the decision was based and the procedure by which it was reached, concludes either that the decision was ultra vires in respect that the appellants failed to take into account facts which the Act required them to ascertain, or that they broke the rules of natural justice, or that the decision was one which no reasonable authority could have made. It certainly does not follow from the fact that Sheriffs may competently interdict statutory authorities from performing certain illegal acts, or from the fact that Sheriffs may grant decrees which order the performance of some statutory duties, that they have jurisdiction to review and quash decisions of housing authorities made under this Act in the absence of express statutory power to do so.

Counsel for the respondent founded on two other cases in support of their proposition that this action was competent in the Sheriff Court. The first of these— M'Gowan v. City of Glasgow Friendly Society 1913 S.C. 991—may be read as authority for the proposition that in certain circumstances decree of declarator of nullity by a Sheriff is a competent alternative to a Court of Session decree of reduction, but I am of opinion that it cannot possibly be read as lending support to the proposition that the Sheriff Court has jurisdiction to review and quash ultra vires decisions of any body which is not a court. The election of a member of the Society to its board of management was challenged in the Sheriff Court on the ground of the ineligibility of that member to serve on the board. Although the first crave was for declarator that his election was void, that crave was departed from in the Court of Session by counsel for the appellant (see p. 994), and the only remedy sought was interdict. The point which arises in this case did not arise, and there is not a whisper in the report of the lengthy debate which we have heard in the present case on this point.

The second case is M'Tavish v. Commissioners of Caledonian Canal (1876) 3 R. 412. Again I am of opinion that it does not support counsels' proposition. As I read it, the decision rested primarily upon the construction of section 88 of the Poor Law (Scotland) Act 1845, which enabled parochial boards to recover poor-rates in the Small Debt Court. The Court of Session held that it was competent to recover poor-rates by way of ordinary action in the Sheriff Court and that the Sheriff had jurisdiction to adjudicate upon any relevant defence to a petitory claim. Counsel founded on the statement of Lord Deas at p. 415 in M'Tavish that "no inferior court can review the decisions of another inferior court" as not excluding the shrieval power to review decisions of a non-judicial nature; but at that time there was no form of process in the Sheriff Court which enabled that Court to review decisions of any kind.

Counsel for the respondent necessarily conceded that the power of the Court of Session to quash decisions of inferior courts was an equitable one. It stems, in my opinion, from the foundation of the College of Justice in 1532 to take over the judicial duties of the King's Council. The Lords of Council and Session were given, as Erskine says in his Institute (I, 3, 18), a jurisdiction in civil matters "first, universal as to extent; and secondly, supreme in degree." At I, 3, 20 he states that the Court of Session "can set aside or suspend the sentences of all inferior courts in civil causes, unless where the power is denied them by special statute." As he points out at I, 3, 22, the Court of Session "is a court of equity as well as of law; and as such may and ought to proceed by rules of conscience in abating the rigours of the law, and in giving aid in actions brought before them to those who can have no remedy in a court of law." The jurisdiction of the Sheriff Court has been for centuries wholly statutory. Its jurisdiction is limited to those specific forms of remedies which are competent in the Sheriff Court. But said counsel, there is now such a remedy, namely, an action of declarator. That, in my opinion, begs the real question whether, when Parliament by section 5 (1) of the Sheriff Courts (Scotland) Act 1907 extended the jurisdiction of the Sheriff to include most declaratory actions, it thereby conferred upon the Sheriff Court a new supervisory jurisdiction. If I am right in classifying the power of the Court of Session to quash decisions on the ground of nullity as an equitable power, that power has never been expressly conferred upon Sheriffs.

Counsel for the respondent referred to p. 93 of Mackay's Manual of Practice where it is said that the jurisdiction to compel inferior courts to exercise their jurisdiction is privative to the Court of Session. He pointed out that Erskine (I, 4, 31) dealt with the Commissioners of Supply under the heading "Inferior Judges and Courts in Scotland." Maclaren, Court of Session Practice, at p. 119, used a similar heading. Senior counsel explained the passage in the opinion of Lord President Inglis in Forbes v. Underwood (1886) 13 R. 465, at 468, about the absurdity of one inferior judge exercising a supervisory jurisdiction over the actings of another inferior judge, as being restricted to judicial or quasi-judicial decisions and submitted that no such absurdity arose if the decision in question was made solely in an administrative capacity. Assuming this to be so, the distinction which counsel drew between judicial and quasi-judicial decisions on the one hand and administrative decisions on the other exposes, in my opinion, the inherent weakness of his submission that a Sheriff now has power to review only administrative decisions by way of declarator of nullity.

Prior to 1907 there was no process whereby the Sheriff Court could review and quash any decision of other courts or bodies. If it is a necessary inference from the introduction by the 1907 Act of the action of declarator, in a less qualified form than that conferred by the 1877 Act, that this introduction per se extended the Sheriff's jurisdiction to include the power to review and quash decisions, there is nothing in the 1907 Act which expressly or impliedly excludes the power of the Sheriff to review judicial or quasi-judicial decisions of inferior courts or bodies, where no other remedy is provided by the common law or by statute. Yet the concession by counsel for the respondent that the Sheriff has no power to review judicial or quasi-judicial decisions means that the use of the action of declarator as a review process is subject to an additional limitation which, not being expressed in section 5 (1) of the Act, must be implied. I find no good reason for reading section 5 (1) of the 1907 Act as impliedly conferring upon the Sheriff a new power to review and quash decisions, which power is subject to the limitation, also implied, that it does not extend to the review of judicial or quasi-judicial decisions.

I could have understood a submission that, as section 5 (1) of the 1907 Act gave to the Sheriff Court jurisdiction to try all actions of declarator except those expressly excluded, it thereby conferred jurisdiction upon Sheriffs to review, by way of actions of declarator of nullity, decisions of inferior courts as well as of statutory bodies; but I should have been unable so to construe it. Such a wide extension of the Sheriff's powers could, in my opinion, have only been conferred expressly by clear statutory provision. As Lord Salvesen said in Dunbar v. Scottish County Investment Co . 1920 S.C. 210, at p. 217:—

"A general rule applicable to the construction of statutes is that there is not to be presumed, without express words, an authority to deprive the Supreme Court of a jurisdiction which it had previously exercised, or to extend what was once the privative jurisdiction of the Supreme Court to inferior courts."

In the absence of express words I am of opinion that section 5 (1) of the 1907 Act did not, and does not, empower Sheriffs to review and declare null the decisions of any bodies, whether of a judicial or other nature.

My conclusion is fortified by the fact that an action of reduction is the primary remedy offered by the law when a decision is challenged either as being ultra vires or as having been made in circumstances which have contravened the principles of natural justice. The 1907 Act did not extend the jurisdiction of the Sheriff Court to include actions of reduction. If Parliament had intended Sheriffs to have power to quash decisions on either of the above grounds, it ought to have made express provision for the remedy of reduction, and not left the existence of an alternative remedy of declarator of nullity to be implied from the fact that such an action is not expressly specified as an exception in section 5 (1) of the 1907 Act.

During the nineteenth century many Acts were passed which conferred powers upon local authorities and statutory bodies, and which brought the exercise of these powers under review by expressly conferring jurisdiction upon the Sheriff to determine specific questions arising from the manner of the exercise. I have in mind the Burgh Police Acts, Public Health Acts, Roads and Bridges Acts and Housing Acts, to name but a few. The only statutory provision of which I am aware which gives the Sheriff a general power to review and quash decisions of statutory bodies is section 39 (4) of the Licensing (Scotland) Act 1976. Even there, the general power is created by reference to specific grounds of appeal.

Subsection 4 of section 39 is in the following terms:—

"The Sheriff may uphold an appeal under this section only if he considers that the licensing board in arriving at its decision—( a )erred in law; ( b ) based its decision on any incorrect material fact; ( c ) acted contrary to natural justice; or ( d )exercised its discretion in an unreasonable manner."

I have no doubt that these new licensing boards are administrative authorities. If, therefore, the words "actions of declarator" in section 5 (1) of the Sheriff Courts (Scotland) Act 1907 did extend to declarations that administrative decisions of statutory bodies were null and void, there was no need to insert paragraphs ( b ), ( c ) or ( d ) in subsection 4.

There is no section similar to section 39 (4) in the Housing (Homeless Persons) Act 1977. It imposes new duties on housing authorities but makes no provision for the enforcement thereof. It requires them to make specified decisions after making "appropriate inquiries." The test is whether the housing authority is or is not "satisfied" as to certain specified facts. The housing authority is given the sole right to decide these facts, applying the test of satisfaction. Following the dictum of Lord Shaw of Dunfermline in Moss' Empires v. Assessor for Glasgow 1917 S.C. (H.L.) 1, at p. 17, it is not within the power or function of the courts to do work set by the Legislature to be performed by administrative bodies (see also the opinion of Lord Greene M.R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

at pp. 228–9, and Anisminic v. Foreign Compensation Commission 2 [1969] A.C. 147, per Lord Reid at p. 171). Judicial dicta relevant to decisions of housing authorities under the Housing (Homeless Persons) Act 1977 were collated by Lord Denning M.R. in De Falco v. Crawley Borough Council [1980] Q.B. 460, at p. 476; and see Bridge L.J., at p. 479. It is not in doubt that, in the absence of fundamental nullity, the decision made by housing authorities under this Act may not be reversed by the judiciary unless the Court is satisfied that no housing authority, properly directing themselves as to the provisions of the Act and acting in good faith, could reasonably have reached the decision in question. Accordingly, it is not surprising to find that no right of appeal is given by the Act, and the Act provides no procedure for quashing decisions which are for any reason rendered null and void.

Every wrong must have a remedy. Where an applicant for housing accommodation is deprived of his rights under this Act by a decision of a housing authority which is fundamentally null, or so obviously wrong that no reasonable housing authority could have reached it on the facts before it, he is entitled to apply to the courts for enforcement of his rights. As the Act has failed to provide a remedy for him, his only recourse is to the equitable jurisdiction of the courts. For the reasons which I have given, I find that the Sheriff has no jurisdiction to review and quash decisions of housing authorities, purporting to act in pursuance of this Act, on the ground of fundamental nullity. That is the sole prerogative of the Court of Session in the exercise of its supereminent jurisdiction by providing a remedy where no other exists.

The point was made that in England county courts are reviewing the decisions of housing authorities under this Act, but I do not know what is the source of their jurisdiction. I must apply what I believe to be the law of Scotland. Although convenience, expediency and economy are three factors which may suggest that it would be desirable for Sheriffs to have jurisdiction to review decisions made under the Act, there is no guarantee that a Sheriff's decision would be accepted as final. The Court of Session has had a number of appeals from decisions of Sheriffs made under section 39 (4) of the Licensing (Scotland) Act 1976, resulting in delay and further expense.

Although my decision rests upon the absence of jurisdiction in the Sheriff Court, I shall now deal with the subsidiary arguments.

First, it was argued that this action was truly an attempt to quash the decision of the housing authority, although the only proper process was reduction, and that an action of reduction was incompetent in the Sheriff Court. I agree with this, but I would nevertheless have held that, if the Sheriff Court had power to review this decision, this action would have been competent as the only form of action available for such review in the Sheriff Court.

Secondly, there was considerable debate on the competency of reducing a verbal decision. We were referred to passages in Stair (IV, 20, 1 and 3) and Erskine (IV, 1,18) and to the Rules of Court (III, 171–4), which suggest that only writings may be reduced. However, I see no good reason for limiting actions of reduction to writings. Reduction seems to me to be the appropriate method of setting aside a contract proved to have been induced by misrepresentation, whether or not its terms have been recorded in writing. Aitchison v. Magistrates of Dunbar (1836) 14 S. 421 is authority for the proposition that it is competent for the Court of Session to reduce a resolution of a council carried by votes. There is no reference in the report to the resolution having been minuted. In any event it is the resolution which has to be reduced, as a minute of the resolution or of any decision is no more than a record of it.

Thirdly, I accept the submission of the appellants that the first part of the second crave is incompetent in respect that it does not follow from annulment of the existing decision. Were that decision to be declared null, it would be for the housing authority to try again and make a new decision. The first parts of craves 2 and 3 presuppose that the authority would not be satisfied that the respondent was homeless intentionally, and the duty under section 4 (5) is based upon that supposition. But if the housing authority were forced to try again, they might be properly satisfied that the respondent became homeless intentionally, in which case the first parts of craves 2 and 3 could not be granted. The alternative form of craves 2 and 3 relates to the duty of the appellants to secure that accommodation was made available for the respondent's occupation between the date of the application for accommodation, viz. 5th December 1978, and the date of their decision on the application. We were informed that in March 1980 the appellants allotted one of their houses to the respondent and that he and his family reside there. The allotment was apparently made following an order by the Sheriff. Counsel for the respondent explained that they wished to retain the second part of craves 2 and 3 "in case the respondent was evicted from the house allotted to him." If crave 1 is refused, decree could not be pronounced in terms of the alternative parts of craves 2 and 3 since they would then relate to a duty which has long since expired. If crave 1 were to be granted with the effect of annulling the decision of 12th December 1978, I consider the alternative parts of craves 2 and 3 to be premature since the respondent does not, and could not, aver that in that event there is any reason to believe that the appellants would fail to perform their section 3 (4) duty.

In the fourth place, the claim for damages is based upon four separate and distinct breaches of statutory duty. The first is based upon breach of the duty imposed by section 3 (4) of the Act, which is a duty to secure that accommodation is made available for the occupation of an applicant, whom they have reason to believe may be homeless and has a priority need, pending the inquiries necessary to enable them to decide whether or not that person ( a ) is homeless, ( b ) has a priority need and ( c ) became homeless intentionally. This head of damage is based upon the assumption that the appellants' decision was valid and that crave 1 is accordingly refused. The duty was, therefore, to provide temporary accommodation only during the period between the application and its resolution. According to the respondent's averments the relevant period was from the date of his application, i.e. 5th December 1978, to 12th December 1978, being the date of the letter to the respondent intimating the decision. Since the respondent admits that he had temporary accommodation on 5th December 1978 and does not aver that he left that accommodation before or on 12th December 1978, I am of opinion that the respondent has not relevantly averred a breach of the section 3 (4) duty. Parliament cannot have intended a housing authority at that stage to find temporary accommodation for an applicant who, to their knowledge, already has it and who does not aver that he could not continue to live there pending the housing authority's final decision on his application.

The second claim for damages is based upon an alleged breach of the duty imposed by section 4 (5) to secure that accommodation becomes available for an applicant. This duty only arises if(1) the housing authority are satisfied that he is homeless with a priority need, and

(2) they are not satisfied that he became homeless intentionally. The decision that the respondent became homeless intentionally stands, and the Court cannot substitute its own decision for that of the housing authority. So long as the decision that the respondent became homeless intentionally stands, the Court cannot find that there was a duty under section 4 (5) of the Act. Assuming, however, that the action is competent in the Sheriff Court and that the first crave were to be granted, this claim for damages is, in my opinion, premature in respect that the appellants might again, but this time properly, come to the conclusion that the respondent became homeless intentionally. In that event this claim would fail.

The third basis of the claim for damages is breach of section 4 (3) of the said Act, which admittedly imposed upon the appellants, following their decision that the respondent became homeless intentionally, the duty to "secure that accommodation is made available for his occupation for such period as they consider will give him a reasonable opportunity of himself securing accommodation for his own occupation." The question is whether the respondent has relevantly averred a breach of that duty. The appellants submitted that, standing the respondent's admission towards the end of article 2 of the condescendence that at the date of their decision he "was residing at 36 Caithness Street, the home of other members of his family," he had that temporary accommodation which gave him a reasonable opportunity of seeking other accommodation for his own occupation. Accordingly, counsel submitted that there was no breach of the section 4 (3) duty. Counsel for the respondent replied by pointing to the respondent's averment that the Caithness Street house "was overcrowded" and submitted that it did not constitute accommodation for the purpose of section 1 of the Act. The fallacy in this argument, in my opinion, is that the scope of section 1 is limited to define homeless persons for the purpose of the Act.

There remains the argument that accommodation within the meaning of section 4 (3) must be accommodation suitable for occupation by the respondent and members of his family and that, as the respondent avers that the Caithness Street house was overcrowded, there must be a proof on the suitability of that accommodation for occupation by the respondent and members of his family. While there may be extreme cases in which a proof is necessary to decide whether the section 4 (3) duty arose upon the alleged ground that the temporary accommodation occupied by the respondent was unsuitable for his occupation, I am of opinion that this is not such a case. It appears from the questionnaire which the respondent completed that the Caithness Street house was occupied by his parents. All that the respondent avers is that the Caithness Street house was "overcrowded." The significant omission, in my opinion, is that he does not ayer that he informed the appellants at any time that the house was overcrowded. The purpose of section 4 (3) is to ensure that homeless families have a roof over their heads. At this stage the appropriate inquiries required by section 3 have been completed. I find nothing in the Act which requires a housing authority, who know that the homeless person is living in temporary accommodation with his family, to proceed further, without any prompting from the applicant, to inquire into the question whether the house in which they are living is "suitable" for occupation as temporary accommodation, and perhaps to compare the accommodation which the homeless person has with the kind of temporary accommodation which the housing authority are able to offer. Accordingly, I am of opinion that the section 4 (3) duty does not arise where the housing authority know that the homeless person and his family are living temporarily in the house of his parents and, for all that appears from the respondent's averments in this case, the homeless person does not even suggest to the housing authority that this temporary accommodation is so overcrowded as to make it impossible, or even difficult, for them to continue to live there while he looks for other accommodation. For these reasons I do not consider that the respondent has relevantly averred a breach of the section 4(3) duty.

That leaves the last ground of the claim for damages stated in article 3 of the condescendence, namely, breach of section 151 (2) of the Housing (Scotland) Act 1966, as amended by section 6 (2) of the Housing (Homeless Persons) Act 1977, "to permit the pursuer to apply to them, as housing authority under that Act, for selection as a tenant." Section 151 (2) as amended reads:—

"The local authority shall secure that in the selection of their tenants a reasonable preference is given to persons who are occupying insanitary houses or overcrowded houses, have large families or are living under unsatisfactory housing conditions and to persons towards whom they are subject to a duty under section 4 or 5 of the Housing (Homeless Persons) Act 1977."

Section 5 of the 1977 Act is not applicable. I have already held that the section 4 (5) duty cannot arise until the existing decision of the appellants is quashed and they thereafter decide that the respondent was not homeless intentionally. That leaves the section 4 (3) duty. Assuming, contrary to my opinion, that section 4 (3) imposes upon housing authorities the duty to secure that temporary accommodation is made available for homeless persons who already have such accommodation, section 151 (2) relates to the tenancy of houses owned by housing authorities. The section 4 (3) duty is only to find accommodation for the homeless person "for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation." It cannot reasonably be construed as a positive duty to put the respondent's name on their housing list as a prospective tenant. While a refusal to permit the pursuer to register an application with them for selection as a tenant might in certain circumstances amount to a breach of the section 4 (5) duty, I cannot read it as a breach of the section 4 (3) duty.

If my construction of these four statutory duties is correct, then the respondent has no relevant claim for damages to go to proof.

Finally, we had a long debate on the relevancy of the pleadings of both parties. Again, I consider the matter upon the assumption that, contrary to my opinion, the Sheriff has jurisdiction to pronounce decree in terms of the first crave.

Counsel for the respondent attacked the relevancy of the appellants' defences on the ground that their narrative of facts falls short of constituting "appropriate inquiries" within the meaning of section 3 (2) of the Act. Now the facts which led the appellants to be satisfied that the respondent had become homeless intentionally, insofar as averred or admitted by the respondent, are as follows:—(1) The house at 16 Welsh Drive where the respondent and his family resided was tenanted by the respondent's wife. (2) On 5th December 1978 the respondent and his family were evicted from 16 Welsh Drive. (3) Eo die the respondent applied to the appellants for accommodation. (4) The respondent was interrogated and his answers were recorded in the two forms contained in the Appendix before us, except that the respondent avers that the amount of rent arrears shown in the Questionnaire was entered at a date later than 5th December 1978. (5) The second form shows that the respondent had lived at 16 Welsh Drive since 1976. (6) The respondent avers that he married the tenant of said house in October 1977. (7) The respondent accepted that on 5th December 1978 rent and rate arrears on 16 Welsh Drive amounted to £227. (8) Since his marriage the respondent has regularly been in receipt of rent allowance of £5 per week. (9) Prior to his marriage the same allowance had been paid to his wife as tenant. (10) Rent allowance is a payment made to persons in receipt of Supplementary Benefit for the purpose, and only for the purpose, of enabling them to pay their rent. (11) Had the said allowance been regularly paid to the appellants by the respondent's wife before her marriage and subsequently by the respondent, there would have been no rent arrears on 5th December 1978. I find it strange that the appellants' averments about the 1977 notice to quit and decree of removing, their averments about subsequent arrangements made with the respondent's wife, the alleged failure to make any payments after 23rd May 1978, and the subsequent events which led up to the eviction on 5th December 1978, are all met by " Quoad ultra denied." However, the relevant facts so far as agreed are stated as (1) to (11) supra .

It is plain therefore that the appellants did make inquiries which established these facts, but counsel for the respondent submitted that the inquiries which were made fell short of those required by the Act. Section 3 (2) required the appellants to make such inquiries as were necessary (the emphasis is mine) to satisfy them whether the respondent became homeless intentionally. The submission was that the Act required the housing authority to put every fact which they had ascertained to a person, whom they were satisfied was homeless with a priority need, in order to give him the opportunity of refuting or explaining them. When asked if it would have been sufficient in this case to ask the respondent why the rent allowance had not been applied in payment of rent, counsel's answer was that one additional question might have been sufficient to satisfy the requirements of the Act. Counsel's alternative submission was that, esto the inquiries made by the appellants in this case were sufficient to satisfy the requirements of the Act, it was nevertheless contrary to the principles of natural justice not to ask the respondent why he had not used the rent allowance to pay the rent.

I reject both these submissions. In the first place, all that the Act requires is that the housing authority make "such inquiries as are necessary to satisfy" them whether inter alia he became homeless intentionally. What are "appropriate inquiries" is, therefore, a question of fact and degree, varying with the circumstances of each case. There may well be cases in which a housing authority cannot be satisfied that a homeless person has become homeless intentionally without considering his explanation for his actings, but, on the facts in this case so far as agreed, I do not consider that the appellants were bound in the exercise of their statutory duty to ask the respondent why he had not used the rent allowance to pay the rent. I find nothing in paragraphs 6 or 7 of the Scottish Development Department Circular dated 21st February 1978 to support counsel's submission on this point. The appellants' averment that the facts narrated by them in answer 2 "were summarised to the Homeless Officer in the presence of the pursuer on 5th December 1978 and were not disputed or contradicted by the pursuer" (which is not admitted by the respondent), if proved, would, in my opinion, satisfy both the requirements of the Act and the principles of natural justice. I am therefore of the opinion that the appellants have relevantly averred a defence to this action.

That leaves the question of the relevancy of the respondent's averments. Counsel for the respondent founded upon a particular passage from the speech of Lord Wilberforce in The Secretary of State v. Tameside Metropolitan Borough Council

[1977] AC 1014

, at p. 1047, viz.:—

"If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account …"

Counsel submitted that, as he undertook to prove additional facts which were not within the knowledge of the appellants when their decision was made, the respondent was entitled to prove those facts. Proof, however, is only necessary if the facts averred by the respondent are such as the Act required the appellants to consider; and, in my opinion, they are not. Counsel for the respondent founded upon the averments that, if the appellants had "carried out further inquiries, as they ought to have done," they would have ascertained that the respondent and his wife had at all relevant times been solely dependent upon Supplementary Benefit: that the respondent's wife had mistakenly believed that she was not liable to pay rent under her tenancy: that the appellants' Housing Department had consistently refused to make any reasonable arrangement with the respondent's wife for payment of rent arrears or to request the Department of Health and Social Security to have the respondent placed on the "Rent Direct" scheme: that the respondent had never been the tenant under the obligation of maintaining the tenancy, and that the respondent and his wife had informed the Housing Department of the facts of their marriage and the respondent's occupation of the house. Counsel submitted that, if all these facts had been within the knowledge of the appellants, they might not have been satisfied that the respondent became homeless intentionally.

Leaving aside criticism of the relevancy and lack of specification of these factual averments, the question, in my opinion, is whether the Act required the appellants to make the further inquiries which the respondent avers would have led to ascertainment of those facts. Were they bound to question the respondent and his wife with a view to ascertaining why the rent allowance of £5 per week, which the respondent admits that he and his wife had received as part of their Supplementary Benefit, had not been applied in payment of rent? Was that a line of inquiry which in this case must be classified as "necessary" under section 3 (2) ( b ) (ii) of the Act? I do not think so. The situation might have been different if the respondent had averred that he had endeavoured to give the Homeless Officer some explanation for the failure of his wife and himself to pay the rent with the money which they had received for that purpose and that he had not been allowed to do so. That is not the position in this case.

In my opinion the final question is whether, on the admitted facts (1) to (11) stated supra , no reasonable housing authority, properly directing themselves as to the nature of their duties, could have been "satisfied" that the respondent had become homeless intentionally.

Section 17 (1) of the Act is in the following terms:—

"…for the purposes of this Act a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

It appears to me to be a reasonable inference from facts (1) to (11) that the respondent deliberately failed to apply his rent allowance to the payment of the rent of 16 Welsh Drive. Section 17 does not say that a person may only become homeless intentionally if he does or fails to do anything in order to become homeless, i.e., for that express purpose. The phrase "in consequence of" means "as a result of" or "so that." There is, in my opinion, a marked distinction between "so that" and "in order to." "So that" relates to the consequences of an act, whereas "in order to" indicates its purpose or intent. I do not suggest that every loss of accommodation which is the result of any deliberate act or deliberate omission renders a person homeless intentionally within the meaning of section 17. I think that one may have to imply the qualification here that the deliberate act or omission must have the loss of accommodation as a reasonably foreseeable consequence of the act or omission. But the question in this case. I suggest, is this—was it reasonable for the appellants to infer that the respondent failed to use his rent allowance for the payment of rent in the knowledge that he was likely to be evicted if he allowed the rent arrears to accumulate to the extent to which he admits they did? That does not require to be the only inference that may be drawn from the admitted facts. It is enough if it is a reasonable inference, because the decision of the appellants that he became homeless intentionally is challenged on the ground that no reasonable authority, properly directing themselves, could have been so satisfied. In my opinion, it was open to the appellants to draw this inference from the admitted facts and thus to be satisfied that the respondent became homeless intentionally.

It follows from my opinion that I would allow the appeal, sustain the first and third pleas-in-law for the appellants, repel the respondent's pleas and dismiss the action. I would not sustain the second plea-in-law for the appellants, which I find to be ambiguous. If, contrary to my opinion, the Sheriff has jurisdiction to entertain this action, I would still allow the appeal, sustain the appellants' fourth plea-in-law as to relevancy, repel the respondent's pleas and dismiss the action.

The defenders appealed to the House of Lords and the pursuer cross-appealed. The appeal and cross-appeal were heard on 4th and 5th October 1982.

LORD DIPLOCK .—Their Lordships wish to hear the appellants as to the conflict between M'Tavish v. Commissioners of the Caledonian Canal (1876) 3 R. 412 and Macfarlane v. Mochrum School Board (1875) 3 R 88 and as to the effect of the Sheriff Court's interim order that the appellant should provide the respondent with accommodation pending the outcome of the appeal.

LORD DIPLOCK .—My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it and would dismiss the action.

LORD FRASER OF TULLYBELTON .—My Lords, the question in this appeal is whether the Sheriff Court has jurisdiction to review administrative decisions of local authorities and similar bodies, on the ground that they are unreasonable or that the procedure by which they had been reached was contrary to natural justice, or whether the jurisdiction to review such decisions on those grounds is vested exclusively in the Court of Session.

The case arises out of a decision by Hamilton District Council ("the appellants"), as housing authority, under section 4 of the Housing (Homeless Persons) Act 1977 that Mr Brown ("the respondent") was a homeless person with a priority need, but that he had become homeless "intentionally" in the sense of section 17 of that Act. The practical consequence of the decision was that the appellants were not under a duty to secure that accommodation became available for the respondent's occupation, except on a temporary basis. The respondent seeks to challenge the decision as being unreasonable or contrary to natural justice, and he raised an action in the Sheriff Court at Hamilton, the first crave of which (as amended) is for declarator that the purported decision of the appellants that they were satisfied that he had become homeless intentionally was "not a decision which the [appellants] were entitled to reach." There are other craves which I shall mention later. The appellants maintain that the action is incompetent and that the Sheriff Court has no jurisdiction to entertain it. The appellants' first and third pleas-in-law are directed to the issues of competency and jurisdiction respectively, and they raise substantially the same issue.

The Sheriff repelled these pleas-in-law and held that he had jurisdiction, but he granted leave to appeal against his decision. The Second Division of the Court of Session, by a majority (the Lord Justice-Clerk (Wheatley) and Lord Robertson, with Lord Dunpark dissenting), held that the action, as amended before them, was competent. If the action is competent, further questions arise as to the relevancy of certain averments. I shall consider first the question of jurisdiction and competency.

My Lords,

it has long been recognised in Scotland that the Court of Session has jurisdiction to exercise a supervisory control over inferior courts and tribunals in cases where there is no right of appeal from those courts or tribunals, and even in cases where appeal is expressly excluded by statute. The principle was stated, in terms which, so far as they go, would be perfectly appropriate at the present day, in Magistrates of Perth v. Trustees on the Road from Queensferry to Perth (1756) (Kilkerran's Notes) Brown's Supplement Volume 5 318 at p. 319, where a statute had provided that the justices should "finally determine" questions between the road trustees and other persons. Lord Kilkerran held that the provision did not exclude the supreme jurisdiction of the Court of Session "to determine what it is that falls within their powers; but whatever matter is found to be within their power, this Court [the Court of Session] cannot review their proceedings."

It is not necessary for me to consider the grounds on which judicial review may be open. The decisions in the English cases of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation

[1948] 1 KB 223

, and Anisminic Ltd. v. Foreign Compensation Commission

[1969] 2 AC 147

, so far as they relate to matters of substance and not of procedure, are accepted as being applicable in Scotland, see Watt v. Lord Advocate 1979 S.C. 102. There is no difference of substance between the laws of the two countries on this matter, although, in order to avoid confusion, it has to be remembered that the word "review" is commonly used in Scottish cases to describe a process which in England would be called "appeal" and is not restricted to procedure corresponding to the English procedure of judicial review. Control over inferior courts and tribunals is exercised in Scotland either by declaring a decision to be null or invalid, or by reducing the decision, or by both declarator and reduction. In some cases also interdict may be an appropriate remedy.

The supervisory jurisdiction over inferior courts and tribunals is vested exclusively in the Court of Session, as supreme court. So much is undoubted and is not in dispute in this appeal. But the respondent maintains that the supervisory jurisdiction of the Court of Session over decisions of bodies other than courts and tribunals is only exclusive or privative in respect of decisions which are judicial or quasi-judicial. In the case of administrative decisions of bodies such as local authorities, the respondent contends that there is supervisory jurisdiction in the Sheriff Court as well as in the Court of Session. The issue of competency turns upon whether that distinction between administrative and judicial decisions is well founded. The majority of the Second Division accepted the respondent's contention, and they therefore proceeded to consider whether the decision of the housing authority in the present case fell to be regarded as administrative, or as judicial or quasi-judicial. Having decided that it was administrative, they held that the Sheriff Court has jurisdiction to review it.

I shall assume for the moment that the decision of the housing authority was administrative in character, although, as I shall explain later, I do not regard the distinction between administrative and judicial or quasi-judicial decisions as important for the purpose of this appeal. In considering whether the Sheriff Court had jurisdiction it is convenient to start from the case of Forbes v. Underwood (1886) 13 R. 465, 467 where Lord President Inglis said this:—

"The position of an arbiter is very much like that of a judge in many respects, and there is no doubt whatever that whenever an inferior judge, no matter what kind, fails to perform his duty, or transgresses his duty, either by going beyond his jurisdiction, or by failing to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this Court, and the inferior judge, if it turns out that he is wrong, may be ordered by this Court to go on and perform his duty and if he fails to do so he will be liable to imprisonment as upon a decree ad factum praestandum . The same rule applies to a variety of other public officers, such as statutory trustees or commissioners , who are under an obligation to exercise their functions for the benefit of the parties for whose benefit these functions are entrusted to them, and if they capriciously and without just cause refuse to perform their duty they will be ordained to do so by decree of this Court, and failing their performance will, in like manner, be committed to prison. Now all this belongs to the Court of Session as the supreme civil court of this country in the exercise of what is called, very properly, its supereminent jurisdiction … Of one thing there can be no doubt, that in making such orders against inferior judges, or statutory trustees, or commissioners, or the like, this court is exercising an exclusive jurisdiction —a jurisdiction which cannot possibly belong to any other court in the country. It is enough to suggest the idea, that an inferior judge should be called upon to ordain another inferior judge to perform his duty—the very idea carries absurdity with it. It can be only the Supreme Court of the country that can possibly exercise such jurisdiction."

(Emphasis added.)

Both parties founded on that statement. The appellants point out that it applies in terms to inferior judges and also to "public officers such as statutory trustees or commissioners." They say, further, that it is not expressly limited to judicial or quasi-judicial decisions of such public officers and that there is no reason to imply such a limitation. The respondent says that a limitation to that effect is to be implied. In my opinion the passage was not intended to be limited to judicial or quasi-judicial decisions of public officers. True, the actual decision in Forbes was about the duties of an arbiter and his position was compared with that of an inferior judge. But the functions of public officers, such as statutory trustees and commissioners, were mainly administrative in character, and if the Lord President had not intended his observations to apply to their administrative functions, I think he would certainly have said so in express terms. The class of bodies to which he referred would in 1886 have included for example the Commissioners of Supply, most of whose functions were transferred to county councils by the Local Government (Scotland) Act 1889 and are now vested in regional councils or district councils. They are thus the statutory ancestors of the appellants, Hamilton District Council. The class would also have included the Commissioners of Police, who were the local authority in burghs created under various Police Acts, and also more specialised bodies such as the Commissioners of the Caledonian Canal—see M'Tavish v. Commissioners of the Caledonian Canal (1876) 3 R. 412, referred to infra . I accordingly regard the passage that I have quoted as authority for two propositions relevant to this appeal; first, the Court of Session has a supervisory jurisdiction over decisions of administrative bodies such as local authorities, whether the decisions are administrative, judicial or quasi-judicial; and secondly, that supervisory jurisdiction is privative to the Court of Session and is not shared by the Sheriff Court. The fact that the Court of Session has a statutory power, under section 91 of the Court of Session Act 1868, to order specific performance of any statutory duty, and that the Sheriff Court has no similar statutory power, tends, if anything, to confirm my view that jurisdiction in this field is privative to the Court of Session. But I agree with Lord Dunpark that a summary petition under section 91 would not be a convenient procedure for deciding questions such as those raised in this appeal.

If the construction of Lord President Inglis's observations were in doubt, there is authority, considerably earlier than Forbes , to support these propositions. Thus Aitchison v. Magistrates of Dunbar (1836) 14 S. 421 was an action for reduction of a resolution of the magistrates, the resolution being purely administrative in character, and also for declarator. The action was defended by the magistrates and town council on the ground inter alia that the Court of Session had no jurisdiction in the question, "which is one … relating to the maladministration of the property of the burgh," and that the necessary jurisdiction was vested in the Court of Exchequer. The defence was repelled and the Lord Justice-Clerk at p. 425 said:—

"The Court of Session is the only tribunal competent to reduce an illegal act or resolution, or declare its illegality."

There are few traces in Scottish cases up to and including Forbes v. Underwood , or indeed until long after that case, of a distinction being drawn between administrative and judicial decisions. An instructive case on this matter is Pryde v. Heritors and Kirk Session of Ceres (1843) 5 D. 552, where the majority of the whole court held that the Court of Session had jurisdiction to review a decision of the heritors and kirk session of a parish in regard to the amount of aliment awarded to paupers seeking relief, and further held that the allowance made to a particular pauper was not sufficient for maintaining her and her family. Only one member of the court, Lord Fullerton, found it necessary to consider whether the decision was administrative or judicial. The distinction between administrative and judicial decisions had some place in modern Scottish decisions such as Barrs v. British Wool Marketing Board 1957 S.C. 72, 81–2 owing, I think, mainly to the influence of English decisions where technical rules relating to the prerogative writs formerly made it important. But for the reasons explained by my noble and learned friend Lord Diplock in O'Reilly v. Mackman

[1983] 2 AC 237

with which I respectfully agree, these "subtle distinctions" are no longer relevant in England and it would be strange if they were to linger on in Scotland. In my opinion there is no reason why they should, and I regard the distinction as of no consequence for the present purpose. It does, of course, remain relevant where the issue is whether a duty has been performed negligently, as in Sutcliffe v. Thackrah [1974] A.C. 727.

Some reliance was placed by counsel for the respondent on the case of M'Tavish v. Commissioners of the Caledonian Canal supra , as an example of the Sheriff's exercise of a supervisory jurisdiction over a decision by a statutory authority, in that case a parochial board which was seeking to recover assessments under the Poor Law. But that is to misunderstand the decision. The action, which was raised in the Sheriff Court, did not conclude for reduction or declarator of nullity of a decision by the parochial board; in 1876 the Sheriff Court would have had no jurisdiction to grant decree of reduction or declarator. It was simply an action for payment of a sum alleged to be due by the defenders (the Commissioners) and the Court of Session held that it was within the jurisdiction of the Sheriff to decide whether the sum was due or not. The decision is, therefore, irrelevant to the present appeal.

The jurisdiction of the Sheriff Court was extended by the Sheriff Courts (Scotland) Act 1907, section 5 (1) to include actions of declarator, subject to an exception which is not here material. That extension did not in my opinion carry any implied extension of their jurisdiction to review the decisions of other bodies. The effect of section 5 (1) was to add to the forms of procedure available in the Sheriff Court, but not to confer upon it by implication any new jurisdiction. As Lord Salvesen said in Dunbar & Co. v. Scottish County Investment Co . 1920 S.C. 210, 217:—

"A general rule applicable to the construction of statutes is that there is not to be presumed, without express words, an authority to deprive the Supreme Court of a jurisdiction which it had previously exercised or to extend what was once the privative jurisdiction of the Supreme Court to the inferior courts."

In the Second Division the Lord Justice-Clerk said that the remedies sought in the present case, namely,(1) decree of declarator,

(2) decress ordaining the appellants to carry out their legal duties and

(3) a decree for damages, were all remedies which ex facie the Sheriff Court could provide and the action was therefore competent. I am with respect unable to agree with that view because the reason why the Sheriff Court is not competent to review the decisions of administrative bodies is not merely a matter of procedure, but springs from a fundamental lack of jurisdiction in this field. Moreover, if the effect of including actions of declarator in the procedural armoury of the Sheriff Court was to entitle it to review administrative decisions of local authorities, I do not understand why it did not have the same effect with regard to the review of their judicial decisions and also the decisions of inferior courts, but nobody has suggested that the Act had that effect. I therefore agree with Lord Dunpark's dissenting opinion on this point.

There is also a separate, and narrower, reason why the appellants are in my opinion entitled to succeed on the issue of competency and jurisdiction. It is this. The Sheriff Court has no jurisdiction to grant decree of reduction of the appellants' decision. It has a limited jurisdiction to reduce deeds or decisions ope exceptionis under rule 5 of Schedule 1 of the 1907 Act but it has no general power to grant decrees of reduction. The Second Division recognised that, and no argument to the contrary has been submitted to the House. Yet the majority of the Second Division held that decree of declarator that the decision of the housing authority was one that they were not entitled to reach was enough to dispose of the principal issue in the case, and that it was unnecessary for that decision to be reduced or set aside. I am unable to agree with that view. The decision on whether the respondent was a homeless person, and if so whether he had become homeless intentionally, is one which in terms of the Act of 1977 is entrusted to the housing authority and to them alone. Their decision effectively determines whether the authority has the duty of making accommodation available for the respondent. If the authority is "satisfied" that he became homeless intentionally that is conclusive—section 4 (3). So long as their decision stands, the necessary consequence is that the appellants' duty is only to furnish him with "appropriate assistance" in accordance with subsection (3) of section 4. They have no duty to secure that accommodation becomes available for him, as they would have under subsection 5 of section 4 if they had not been so satisfied. A mere declarator that the decision was one which they were not entitled to reach does not get rid of the decision, nor can it open the way for the housing authority to reach a different decision if, on further consideration of the matter in light of the Court's decision on matters of law, it thinks fit to do so. In a case such as this, where the housing authority is both the decision-making authority and the decision-implementing authority, the proper procedure is for the decision to be reduced so that a different decision, creating different legal rights for the private party in the position of the respondent, can be made. The view which was taken by the majority of the Second Division involves treating a decree of declarator by the sheriff either as being in substance a decree of reduction, in which case it would be granted without jurisdiction, or as a mere brutum fulmen ,having no compulsive force, in which case it would be futile and ought not to be pronounced. I am of opinion on this ground also that this action is not competent in the Sheriff Court.

I come now to relevancy. Several matters under this head were considered by the Second Division and the majority of them were decided in a sense adverse to the respondent. The respondent cross-appealed against the decision on these matters but I am in entire agreement with the learned judges of the Second Division in so far as they decided that portions of the respondent's pleadings were irrelevant and I cannot usefully add anything on that matter. There were, however, two respects in which the respondent's pleadings were alleged by the appellants to be irrelevant but in which the Division has allowed a proof before answer. Both these matters are of some general importance. I consider them, of course, on the assumption that the action is competent.

The first of these questions of relevancy arises from the respondent's claim for damages based on the averment that the appellants had failed to secure that temporary accommodation was made available for him while they were inquiring into the facts and coming to their decision on his application. In order to explain this question I must refer to the procedure required by the Act. By section 3 subsection (1) of the Act it is provided that if a person applies to the housing authority for accommodation the authority shall make "appropriate inquiries" which are defined by subsection (2) as follows:—

"(2) In subsection (1) above ‘appropriate inquiries’ means—( a ) such inquiries as are necessary to satisfy the authority whether the person who applied to them is homeless or threatened with homelessness, and ( b ) if the authority are satisfied that he is homeless or threatened with homelessness, any further inquiries to satisfy them—(i) whether he has a priority need, and (ii) whether he became homeless or threatened with homelessness intentionally."

The appellants admit that the respondent applied to them for accommodation, that they had reason to believe that he might be homeless and have a priority need, and that they made appropriate inquiries. Their inquiries occupied about a week, from 5th to 12th December 1978, on which latter date they intimated their decision that he had become homeless intentionally. During that period, and for some days before 5th December 1978, the respondent and his wife and two children were living in his mother's house at 36 Caithness Street, Hamilton. He completed two forms on 5th December 1978 in which he informed the appellants' housing department that that was his address and that he had been there since 1st December 1978. The respondent now avers that his mother's house was overcrowded and did not constitute accommodation for the purpose of section 1 of the Act, and that the appellants had therefore failed to perform their duty under subsection (4) of section (3), namely to secure that accommodation was available for him pending their decision. He gives no details of how or why the accommodation is overcrowded and on that account alone his averments seem to me to be of doubtful relevancy. But what is more serious is that he does not aver that he told the appellants' housing department on 5th December that the accommodation in his mother's house was overcrowded. Notwithstanding that failure, the majority of the Second Division held that the appellants had failed in their duty. The Lord Justice-Clerk said that the accommodation to be made available for the respondent pending the appellants' decision must be reasonable accommodation. As he trenchantly put it, "A pigsty could be accommodation but not reasonable accommodation." On that view, his Lordship held that the respondent's averments, that the accommodation at 36 Caithness Street did not constitute accommodation in terms of the Act, were relevant. Lord Dunpark dissented from that view and I respectfully agree with Lord Dunpark on this point. If the decision of the majority of the Second Division is correct, its effect would be that in every case where the housing authority makes appropriate inquiries under section 3 (1) of the Act, it would have also to inquire into the adequacy of whatever temporary accommodation the applicant happened to be occupying at the time, even though he had made no complaint about it. That would in my opinion be to impose an unreasonable burden on the housing authority and one which does not appear to me to be contemplated by the Act. I entirely accept, of course, that the accommodation provided must be reasonable, but as it is provided only temporarily pending the decision of the housing authority it might, I think, be adequate although falling below the standard of adequacy for permanent accommodation. Where an applicant informs the housing authority that he is occupying accommodation at the time of his application and makes no complaint that it is inadequate, and where there is nothing in the address or the description of the accommodation so far as known to the housing authority to suggest that it is other than adequate, I am of opinion that the housing auth- ority has discharged its duty under section 3 (4). Its duty does not extend to making further investigation into the adequacy of the accommodation. Accordingly, I regard the respondent's averments on this matter as irrelevant.

The second matter of relevancy which was decided by the Second Division in favour of the respondent arises from his averments that the appellants' decision had been reached by a procedure which was contrary to natural justice. Briefly, his complaint was that the authority had not put to him all the facts ascertained in the course of their investigations in order to hear such explanations as he might have to offer about them. The investigations in question were those made under section 3 (2) ( b ) (ii) of the Act to satisfy the appellants whether he became homeless intentionally. The principal facts which their investigations disclosed were that he had been in receipt of a rent allowance of £5 per week from the Department of Health and Social Security and that he had not applied this allowance to pay the rent of the house where he and his wife and children were living. If it had been paid to the appellants they would not have demanded any further rent from him. His complaint is that if he had been asked for his explanation of the failure to pay the rent allowance he would have said firstly that at all relevant times he and his wife had been in dire poverty solely dependent on supplementary benefit; that his wife had "for a period" of unspecified duration and date believed herself mistakenly but in good faith not to be liable to pay rent to the defenders for the house; that the tenancy was in the name of his wife and not of himself; and that the appellants' housing department had refused to make any reasonable arrangement with his wife for payment of rent arrears. He complains that as the appellants failed to ascertain these matters, as they could have done by asking for his explanations, they either could not have been satisfied that he was intentionally homeless, or if they were so satisfied, that was because they had failed to take into account his explanations as they ought to have done.

In my opinion, with all respect to the majority in the Second Division, this complaint is without substance. None of the explanations suggested by the respondent in his pleadings seem to me to be in any way adequate to prevent or negative a decision that he had become homeless intentionally within the meaning of section 17 of the Act. Subsection (1) of section 17 provides as follows:—

"(1) Subject to subsection (3) below, for the purposes of this Act a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

Subsection (3) provides as follows:—

"(3) An act or omission in good faith on the part of a person who was aware of any relevant fact is not to be treated as deliberate for the purposes of subsection (1)… above."

It is clear that the respondent deliberately failed to pay over the rent allowance to the appellants and that in consequence of that he ceased to occupy the accommodation in question. That may not have been the only reason why he ceased to occupy it, but provided it was one of the causes, as in this case it clearly was, then the requirements of the subsection are satisfied. With regard to subsection (3) the respondent avers that his wife, not himself, was unaware that rent was payable. But even if one treats the respondent and his wife as being for this purpose one person, the matter of which she alleges that she was in good faith unaware was a question of law and not one of fact.

I am far from saying that a housing authority is entitled to proceed to a decision without giving any opportunity to an applicant to explain his side of the case. But that is not this case. Here the applicant was invited to, and did, complete a form setting out certain essential facts, and he had a discussion with the housing department official on 5th December 1978 at which he had an opportunity of making such explanations as he wished to make. In these circumstances, and having regard to the entirely inadequate explanations now suggested in the respondent's pleadings, I am of opinion that his averments are wholly irrelevant.

Accordingly, in addition to holding that the action is incompetent in the Sheriff Court, I am of opinion that it is irrelevant and should be dismissed on that ground also.

I have two final observations. First, the question whether the Sheriff Court has jurisdiction in this case is entirely separate from the question whether the County Court would have jurisdiction in a similar case in England. The historical and statutory bases for the jurisdictions of the two courts are widely different. Secondly, it is for consideration whether there might not be advantages in developing special procedure in Scotland for dealing with questions in the public law area, comparable to the English prerogative orders. Now that the technical restrictions which previously applied to the prerogative orders have been removed by amendment of the rules of court in 1977, and by section 31 of the Supreme Court Act 1981, they have advantages over ordinary procedures such as declaration, particularly by making available remedies which are speedy and cheap and which protect public authorities from unreasonable actions, as explained by Lord Diplock in O'Reilly . Similar advantage might possibly be derived in Scotland from reviving what Lord President Cooper in J. and J. v. C's Tutor 1948 S.C. 636, 643 referred to as "obsolete advocation and obsolescent suspension" as methods of review of decisions in the public law field, which are not subject to appeal in the court. They are of course neither obsolete nor obsolescent in criminal procedure. Advocation was held to be a competent procedure in Pryde v. Heritors and Kirk Session of Ceres ( cit. supra ).

I would sustain the first, third and fourth pleas-in-law for the appellants and dismiss the action.

LORD KEITH OF KINKEL .—My Lords, I have had the benefit of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons he gives I too would allow the appeal to the effect of making an order in the terms which he proposes.

LORD BRIDGE OF HARWICH .—My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. For the reasons he gives I would allow the appeal and I concur in the order he proposes.

LORD BRIGHTMAN .—My Lords, I also would allow this appeal for the reasons given by my noble and learned friend, Lord Fraser of Tullybelton, and I agree with the proposed order.