[2016] CSOH 135




In Petition of






Pursuer: Stalker;  Drummond Miller LLP

Defender:  Byrne;  Glasgow City Council

15 September 2016

[1]        This petition came before me on the respondent’s fourth plea in law to the effect that the petition is barred by mora, taciturnity and acquiescence.  For the following reasons I shall sustain the plea and dismiss the petition. 

[2]        The petitioner is a Portuguese national who came to this country to find work in 2014.  She has a young child.  She does not speak English.  She had accommodation arranged before she came but was asked to leave it in about February 2015.  She was provided with interim accommodation by the respondents under section 29 of the Housing (Scotland) Act 1987 (“the Act”).  On 26 March 2015 the respondents accepted that they were under a duty to secure the petitioner permanent accommodation under section 31(2) of the Act.  They continued to provide accommodation under section 29(1)(c) of the Act pending the obtaining of permanent accommodation. On 26 April 2015 she was given permanent accommodation. 

[3]        On 16 June 2015 the respondents issued another determination under section 30 of the Act rescinding the decision of 26 March 2015 on the grounds of a material change in the petitioner’s circumstances as a result of the DWP decision (see below).  On 1 December 2015 the respondents issued a further decision again accepting a duty to secure permanent accommodation under section 30 of the Act. 

[4]        For some considerable time after she came to the UK the petitioner was unable to find work.  In January 2015 the petitioner registered with the DWP and applied for and was given Jobseeker’s Allowance (“JSA”).  In April 2015 this was withdrawn.  In August 2015 the petitioner obtained work and has been in work since then. 

[5]        The petitioner occupied an address in Glasgow under an occupancy agreement with the respondents from 27 February 2015.  Under the agreement she was liable to pay rent of £184.10 per week.  This was subsequently increased to £185.71.  When she signed the agreement the terms were read out to her by an interpreter.  She was told that she would have to pay the rent herself and that the respondents would not do so.  She did however believe that she was entitled to housing benefit.  As an EEA national in receipt of JSA she was not entitled to housing benefit.  Between 27 February 2015 and 8 April 2015 the petitioner was in receipt of JSA at the rate of £73.10 per week.  Between 8 April 2015 and 4 September 2015 the petitioner was not in receipt of any income from benefits or employment.  As a result the petitioner accumulated rent arrears of £4,900.92. 

[6]        The petitioner received letters dated 19 March, 27 March, 26 May, 15 October and 21 October 2015 concerning arrears of rent.  On 8 June 2015 a meeting took place at the petitioner’s flat to discuss the rent arrears.  A member of the respondent’s staff and a support worker from Unity was present.  The petitioner was told that she would have to pay her rent.  It was suggested to her that she might return to Portugal given her difficulties in finding a job or paying the rent on the accommodation. 

[7]        On 6 July 2015 Shelter Housing Legal Team wrote to the respondents challenging the decision of 16 June to withdraw the decision to provide her with permanent accommodation.  The legal team wrote a further letter on 9 October in which they relied on the decision to provide accommodation as being “lawful at the time it was made.” 

[8]        On 25 November 2015 the petitioner entered into a rent repayment agreement with the respondents.  An interpreter and support worker were present when she entered into the agreement.  At that stage the amount outstanding had been reduced to £4850.92.  This agreement included the following provision: 

“In addition to my normal rent repayment I undertake to pay £10 towards my rent arrears each week.  This agreement commences on October 2015 and will remain in place until all arrears are paid in full.”


[9]        On 2 December solicitors acting for the petitioner wrote to the respondents challenging the occupancy agreement of 27 February 2015.  The petition was lodged on 18 December 2015. 

[10]      The petitioner seeks reduction of the rental part of the occupancy agreement of 27 February 2015 on the grounds that the respondents failed to consider the petitioner’s inability to pay and thus failed to consider exercising its discretion under section 35(2)(a) of the 1987 Act.  Separately the petitioner says that the respondent failed to consider providing assistance to the petitioner under section 22 of the Children (Scotland) Act 1995 or section 20 of the Local Government in Scotland Act 2003. 


[11]      In Hendrick v Chief Constable of Strathclyde Police 2014 SC 521 an Extra Division held that for the plea of mora, taciturnity and acquiescence to succeed it was sufficient if the first two elements, namely mora and taciturnity were present and either acquiescence or prejudice can be inferred from the facts and circumstances (paragraph 14). 

[12]      Mora simply means delay beyond what is a reasonable time.  What is reasonable will depend on all the circumstances.  In assessing what is reasonable account must be taken of the complexity of the matter and the need to take advice and gather information;  United Co‑operative Limited v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831 per Lord Glennie at paragraph 30.  In King v East Ayrshire Council 1998 SC 182 Lord Rodger of Earlsferry LP, giving the decision of the court, observed that applications for Judicial Review should be made at the earliest possible opportunity and a failure to do so may well lead to an inference of acquiescence which will be fatal to the application.  However he also commented that what amounts to mora will depend on the circumstances of each case (at page 188). 

[13]      In this case there was a delay of over nine months before solicitors acting for the petitioner wrote to the respondents and nearly ten months before the petition was lodged in court.  Mr Stalker urged me to look at the particular circumstances of a woman with a child who did not speak English and was at the time homeless when she entered into the occupancy agreement.  She was reliant on advice from others.  She did not know about the possibility of challenge to the agreement until December 2015 when she was advised by her solicitors.  

[14]      These points are well made.  However there was an interpreter present when the petitioner signed the agreement and from her own affidavit it is apparent that she knew that she would be liable to pay rent.  As time went on she was repeatedly reminded that she was building up arrears of rent.  I accept that the petitioner could not be expected to know the intricacies of housing law and the benefits to which she may be entitled.  However it is also clear that she had access to a Unity support worker and from at least June 2015 advice from a solicitor.  Mr Stalker informed me that the possibility of challenge had not occurred to the solicitors before December.  That may be but the fact was that the solicitors knew about the occupancy agreement, they knew that their client was building up arrears of rent and they were, when first making representations on their client’s behalf content to rely upon the agreement. 

[15]      Mr Byrne for the respondents drew my attention to the time limit now contained in section 27A of the Court of Session Act 1988.  It is true that had the petition been lodged four days later it would have been caught by this provision but I have to apply the law as it stood when the petition was lodged.  

[16]      However on the facts it is more than apparent that there has been delay beyond what might be regarded as a reasonable time even accounting for the personal circumstances of the petitioner.  That becomes particularly clear after June 2015 when the petitioner had access not only to a support worker but also to legal advice. 

[17]      I also consider that there has been taciturnity by the petitioner.  At no time did she challenge her liability to pay rent either herself or through those who were advising her.  There was ample opportunity for her to do so and a failure by her to speak out in assertion of what she considered her rights.  Mora and taciturnity being established the question is whether the third element of acquiescence or prejudice is also present. 

[18]      Mr Byrne initially argued that there was prejudice to the respondents since they had altered their position in the light of the rental arrears agreement.  It is no doubt true that the respondents may have made administrative arrangements in light of the agreement, in particular to collect the extra £10 per week and put that towards the accumulated arrears of rent.  But I am not persuaded that this amounts to prejudice.  Assuming the decision they took to charge rent is lawful then they are still owed rent.  However, as the court in Hendrick made clear, it is possible for an inference of acquiescence to be drawn without there being any prejudice on the part of the person tendering the plea. 

[19]      The essence of the petitioner’s case against the respondents is that they acted unlawfully in charging her rent on the property.  It is not clear whether the contention is that she should have been accommodated rent free or whether what is sought is an amelioration of the rates charged under the occupancy agreement of 27 February 2015.  However the rent repayment agreement proceeds on the basis that rent is due under the occupancy agreement and that, as at the date of the rent repayment agreement, was £185.71 per week.  The petitioner had already started making repayment of the arrears at the rate of £10 per week and continues to do so.  

[20]      In my opinion it is a clear inference that the petitioner has acquiesced in the respondents’ decision of 27 February 2015 to charge rent.  For these reasons I have reached the view that the respondents’ plea of mora, taciturnity and acquiescence should be sustained.