Priority Need Case Law

The Department for Communities and Local Government: London published the Homelessness Code of Guidance for Local Authorities in July 2006 (“The Guidance”) has from time to time been modified so as to reflect decisions of this Court upon the interpretation of s.189 of the Housing Act 1996 and the correct approach to the assessment of vulnerability.

The guidance as to assessment given in chapter 10.13 and 14, for example, largely follows the decisions of the Court of Appeal in R v Waveney District Council, ex parte Bowers [1983] 1 QB 238, 4 HLR 118 and R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317, confirmed and applied by the Court in Osmani v Camden London Borough Council [2004] EWCA Civ 1706, [2005] HLR 22.

In Pereira the court explained and applied the test identified by the Court in R v Waveney District Council, ex parte Bowers, namely that a “vulnerable” person is someone who is “less able to fend for [him]self so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects” (per Waller LJ at page 244H). First instance decisions which followed Bowers had suggested that the test had developed and mutated. The Court in Pereira held that the correct test was as the Court of Appeal had defined it in Bowers, subject only to a recognition that a comparison was to be made between the applicant and the average or ordinary homeless person identified by Lord Prosser sitting in the Outer House of the Court of Session in Wilson v Nithsdale District Council [1992] SLT 1131. In his conclusion, Hobhouse LJ with whom Waller LJ and Walker LJ agreed, said at page 330 of Pereira:

“The Council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reasons. Thus the Council must ask itself whether Mr Pereira is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable person would be able to cope without harmful effects. The application of this test must not be confused with the question whether or not the applicant is at the material time homeless. If he is not homeless, the question whether he is in priority need becomes academic. The question under paragraph (c) can only arise if (or on the assumption that) he is at the material time homeless. A particular inability of a person suffering from some handicap coming within paragraph (c) to obtain housing for himself can be an aspect of his inability as a homeless person to fend for himself. Such an individual may suffer from some mental or physical handicap which makes him unable to obtain housing unaided and thus makes him unable to cope with homelessness in a way which does not apply to the ordinary homeless person. But it is still necessary, as is illustrated by the decided cases, to take into account and assess whether in all the circumstances the applicant’s inability to cope comes within paragraph (c). It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who is able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable.” [italics added]

In Osmani the court was considering a case with some factual parallels with the present appeal. Mr Osmani, who was a native of Kosovo, was granted indefinite leave to remain. In October 2001 he and his wife moved into rented accommodation. When in January 2003 they were served with a notice to quit they sought housing assistance. The claim that Mr Osmani was in priority need was rejected and the rejection was maintained after two statutory reviews. Mr Osmani’s appeal to the County Court was also dismissed. The application for assistance as a vulnerable person in priority need was made under s.189(1)(c) of the 1996 Act. Among the factual assessments made by the Council’s reviewing officer were the following (paragraph 18 Osmani):

“I noted…that you were fully mobile, you can use public and private transport, you can manage shopping and you can manage stairs…With respect to your personal activities of daily living, Dr McNicol noted that you could wash, cook and dress independently and administer your own medication…Further to the above, I noted that since your arrival you have managed [to] find and maintain private and rented accommodation, you have applied to this authority for housing assistance, you have sought medical treatment from your GP, as well as from the trauma clinic. You have applied [for] and obtained benefits and you have sought independent legal advice when an adverse decision was made against you. In considering your case I also took into account that you are being treated at present for your medical problems and that your condition is being carefully monitored by your GP and Ms Dionisio at the trauma clinic and that you are engaging with this treatment and have good attendance. I considered also that alongside the above support you continue to receive support from your wife, your GP [Dr McNicol] have (sic) also acknowledged this and there is no evidence that this will cease.” [italics added by Auld LJ in his judgment]

Auld LJ, with whom Judge LJ, as he then was, and May LJ agreed, returned to the reasoning of Hobhouse LJ in Pereira. He noted that at page 319 of Pereira Hobhouse LJ identified a distinction between section 59(1)(c) and the other paragraphs of sub-section (1). Hobhouse LJ had said:

“In practice paragraphs (a), (b) and (d) have not proved difficult to apply; each of these paragraphs can be applied by asking and answering a simple factual question. Paragraph (c) is different. It involves a question of judgment and causation. It is necessary to assess whether a person is “vulnerable”. It is also necessary to consider whether such vulnerability is as a result of one of the four identified causes or some other “special reason”. Whether one approaches the question of construction by looking at the language of the paragraph as a composite whole (see the discussion in Ex-parte Kihara 29 HLR 147) or by considering the question of vulnerability in cause separately, the problems of interpretation remain. These problems are not made easier by the statutory context. Within section 59(1) there is a potential contrast. Paragraphs (a), (b) and (d) do not touch upon the ability of a person to find accommodation without assistance. A pregnant woman has a priority need for accommodation simply by reason of her being pregnant. It is irrelevant to her qualifying as a person with priority need that she has an unimpaired ability to find and obtain accommodation suitable for her needs. By contrast the word “vulnerable” used in paragraph (c) at least potentially may raise the question whether there is some special reason which peculiarly handicaps the relevant person in obtaining suitable accommodation; indeed this may be the primary source of his vulnerability.”

As to the challenge in Osmani based on perversity Auld LJ concluded at paragraph 40:

“40. As to perversity, it has to be kept in mind that vulnerability under section 189(1)(c), depending upon the nature and extent of the reason for it, is not exclusively or even necessarily a medical question. There was no doubt here that Mr Osmani suffered from a depressive illness, but it was not such at the time of the decision letter, when he was still being housed by the Council, as to prevent him from fending for himself and his wife in maintaining all their normal support systems and in his daily activities. The question for the reviewing officer, which he addressed, was one of assessing the further risks to those capabilities if and when he were to become homeless. Would his condition deteriorate such that he would not be able to do anything about his homelessness unaided and/or to harm him more than it would “an ordinary homeless person”? In my view the reviewing officer’s conclusion that the risk was not such as to make him vulnerable for either of those purposes was for the reason she gave, one which was reasonably open to her.” [italics added]

As to the complaint that the reasons for the decision were insufficiently explained Auld LJ continued at paragraph 41:

“41. On the barely separate issue in the circumstances of the sufficiency of the reviewing officers reasons, it is plain, as I have said from the passages in the decision letter that I have set out and which I have emphasised, that she had regard to all relevant factors on a proper understanding of the Pereira test. That is, on the basis of the evidence before her, she took account of what Mr Osmani could do at the time when housed and made a risk assessment as to what he would be able to do if he were to become homeless. Necessarily his past history and current pattern of ability to fend for himself contributed to, but did not determine, her decision as to the future. As to the future she expressly justified her decision by reference to (1) that he was undergoing and co-operating with treatment for his depressive condition; (2) that Dr McNicol and Ms Dionisio were carefully monitoring his condition; (3) that he continued to receive support from his wife in all this; and (4) that, thus aided, he was therefore likely to be able to fend for himself as well as others without such mental conditions.” [italics added]