W v Stirling Council [2015] CSOH162; 2016 SLT 35, was a petition for judicial review brought by a lady identified as LW, and heard (confusingly) by Lady Wolffe. On 4th February 2015 Stirling Council decided that LW was intentionally homeless. LW sought judicial review of that decision. On 1st August 2103 she had become a tenant of private rental property in Stirling under a Short Assured Tenancy. It continued by tacit relocation on 31st January 2014, but on 17th February 2014 the landlord served a Notice to Quit. Following upon that, Decree of Recovery of Possession was granted in September 2014. She thereupon become homeless. The question was whether her homelessness was intentional.

Prior to taking the tenancy, LW had been advised that there would be a shortfall of about £10.80 per week between her housing benefit and the rent due. The Notice to Quit resulted from failure to pay that difference.

LW had a history of mental health issues. She had been known to psychiatric services since 2006, after referral by her GP for depression, anxiety and agoraphobia. She was assessed as also experiencing psychotic symptoms.

In about March or April 2014 (that is to say, very shortly after the events giving rise to the Notice to Quit) she was admitted to hospital and detained under the Mental Health (Care and Treatment)(Scotland) Act 2003. She was discharged, then detained again. In November 2014 she was still subject to a Community Treatment Order. A letter from a community psychiatrist nurse (wrongly identified in the decision as “community practice nurse”) on 19th December 2014 concluded that the nature of her illnesses 

“significantly affected her ability to function and reduced her level of being responsible” and that, at that time, LW “had no apparent insight to how unwell she was and unaware of her day-to-day responsibilities”.

LW’s three grounds for seeking reduction of the decision were all unsuccessful. They were, firstly, “that there was no proper basis in fact to support the determination that the petitioner had made herself intentionally homeless without having secured alternative accommodation”; (secondly) “that the decision letter failed to take into account properly and reasonably the significant psychiatric history and ongoing treatment of the petitioner” and (thirdly) “that the decision was Wednesbury unreasonable”. The first ground was rejected on the basis that “the petitioner’s case was not one of total or complete incapacity”. It is remarkable that such black and white concepts of capacity should still be current, and should influence decisions. It is also notable that the decision makes no reference to the United Nations Convention on the Rights of Persons with Disabilities, and in particular the obligation upon states parties under article 12.3 of the Convention to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. There are references in the decision to LW having been assessed for support, but it is difficult to identify that there was any clear evidence as to any disabling effects of her psychiatric troubles in this specific matter of fulfilling her responsibilities under her tenancy; and although it is narrated that in August 2013 the Council had assessed her as requiring support in “understanding of tenancy and tenancy management”, and also in relation to housing benefit, council tax and rent, the decision does not record whether she received support, and if so what support, in relation to those matters.