![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hotak v London Borough of Southwark [2013] EWCA Civ 515 (15 May 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/515.html Cite as: [2013] PTSR 1338, [2013] EWCA Civ 515, [2013] WLR(D) 180 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2013] WLR(D) 180]
[Buy ICLR report: [2013] PTSR 1338]
[Help]
ON APPEAL FROM LAMBETH COUNTY COURT
HIS HONOUR JUDGE BLUNSDON DATED 27 APRIL 2012
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE RICHARDS
and
LORD JUSTICE PITCHFORD
____________________
SIFATULLAH ![]() ![]() |
Appellant |
|
- and - |
||
LONDON BOROUGH OF SOUTHWARK |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Kelvin Rutledge QC (instructed by London Borough of Southwark) for the Respondent
Hearing date: 2 May 2013
____________________
Crown Copyright ©
Lord Justice Pitchford :
The issue
The factual background
The Council's decisions
"In deciding whether a person is vulnerable in accordance with section 189(1)(c) of the above Act the Council must ask itself whether the applicant, when street homeless, is less able to fend for himself/herself so that injury or detriment will result where a less vulnerable street homeless person would be able to cope without harmful effect. The test employed to assess whether or not clients are deemed to be vulnerable is laid down by the Court of Appeal in the case of R v Camden LBC ex parte Pereira [1998] 31 HLR 317.
Applying that test and taking into account the information on file this authority is satisfied that MrHotak
's medical conditions are sufficiently serious...for us to conclude that he may be vulnerable under the provisions of the Act. However, we are also satisfied that Mr
Hotak
may only be vulnerable if he was a single applicant. Even though we have considered the test as it applies to the individual, we have also considered the totality of factors involved in this case under the provisions of the above Act …
We acknowledge that he has learning difficulties and disabilities and it would be reasonable to conclude that he may find difficulty in finding and maintaining accommodation. If on his own and street homeless MrHotak
may also be at risk of harm insofar as it may have an impact on his health. However we are satisfied that his brother is capable of providing him with continued housing and support if they were street homeless together.
Ezatullah's circumstances would not confer priority under the provisions of the Act and we are satisfied that he would not allow circumstances to arise whereby his brother is placed at risk. We are therefore not satisfied that MrHotak
would be a greater risk than the norm if street homeless as he has a stable support network that will stay with him if he is faced with street homelessness.
The Council is satisfied as a result of the above that when street homeless he would not be less able to fend for himself than an ordinary street homeless person so that injury or detriment to him would result when a less vulnerable street homeless person would be able to cope without harmful effects. As previously stated his brother is capable of continuing to care for the client and we are satisfied that he would be able to continue to do so if faced with street homelessness.
Ezatullah has consistently shown an ability to engage with external agencies such as MrHotak
's GP, his psychologist, social services, the Home Office, your [the solicitor's] services and our services. In addition Mr S
Hotak
is in receipt of benefits which means that he will also be eligible for housing benefit if he found private sector accommodation.
This authority is satisfied that their personal circumstances do not prevent them from engaging with services in order to find accommodation. Ezatullah is able to effectively manage his daily affairs and we are also satisfied that he can continue to provide support to MrHotak
. In addition Ezatullah independently manages finances of the household and he is capable to managing his own affairs and the affairs of Mr
Hotak
. We are satisfied that all of the above would still be possible were they to become street homeless …
We have looked at MrHotak's vulnerability as a composite assessment of his circumstances and have also borne in mind the ability of his brother to find and keep accommodation like others who have similar housing and other circumstances to them. Even though we acknowledge that he has learning disabilities and difficulties we are satisfied that Ezatullah would assist him if street homeless and his circumstances do not confer priority need under the provisions under the above Act."
Appeal to the County Court
"37...Am I therefore to blinker myself, ignore the dynamics of their relationship, and assume, although wholly unrealistically, that the support and assistance that the brother has provided will not continue if they become street homeless? Is it realistic to assume that on becoming street homeless, the brother will cease to provide for the appellant, or rather am I prevented even from considering that matter by the statute? I think not. There is nothing in my reading of section 189(1)(c) or the code which, in my judgment, excludes a consideration of family support when assessing whether a person is vulnerable when street homeless. It is a matter of fact and degree to be evaluated by the reviewing officer. The weight to be attached will vary in each case, but clearly the less likely comprehensive support, the less weight will be attached to the input of the third party. The fact that I may have reached a different conclusion is not relevant if I am satisfied that the authority reached a decision within the range of decisions I described earlier."
The statutory scheme
"193 Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority referred the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
"189 Priority need for accommodation
(1) The following have a priority need for accommodation-
(a) a pregnant woman or a person with whom she resides or might reasonably expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
(2) The Secretary of State may by order-
(a) specify further descriptions of persons as having a priority need for accommodation, and
(b) amend or repeal any part of sub-section (1)."
The Homelessness Code of Guidance 2006
"VULNERABILITY
10.12 A person has a priority need for accommodation if he or she is vulnerable as a result of:
(i) old age [section 189(1)(c)];
(ii) mental illness or learning disability (mental handicap or physical disability [section 189(1)(c)];
(iii) having been looked after, accommodated or fostered and is aged 21 or more [2002 Order, paragraph 5(1)];
(iv) having been a member of Her Majesty's regular naval, military or air forces [2002 Order, paragraph 5(2)];
(v) having been in custody or detention [2002 Order, paragraph 5(3)];
(vi) ceasing to occupy accommodation because of violence from another person or threats of violence from another person which are likely to be carried out [2002 Order, paragraph 6]; or
(vii) any other special reason [section 189(1)(c)]. [attributions added]
In the case of (i) (ii) (vii) only, a person with whom a vulnerable person lives or might reasonably be expected to live also has a priority need for accommodation and can therefore make an application on behalf of themselves and that vulnerable person.
10.13 It is a matter of judgment whether the applicant's circumstances make him or her vulnerable. When determining whether an applicant in any of the categories set out in paragraph 10.12 is vulnerable, the local authority should consider whether, when homeless, the applicant would be less able to fend for him/herself than an ordinary homeless person so that he or she would suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects.
10.14 Some of the factors which may be relevant in determining whether a particular category of applicant is vulnerable are set out below. The assessment of an applicant's ability to cope is a composite one taking into account all of the circumstances. The applicant's vulnerability must be assessed on the basis that he or she is or will become homeless and not on his ability to fend for him or herself while still housed." [original emphasis]
The reference in chapter 10.14 to the need, when assessing the applicant's ability to cope, to take into account "all of the circumstances" was of particular relevance to the appellant's application.
"10.16 … In considering whether such applicants are vulnerable, authorities will need to take account of all relevant factors including:
(i) the nature and extent of the illness and/or disability which may render the applicant vulnerable;
(ii) the relationship between the illness and/or disability and the individual's housing difficulties; and
(iii) the relationship between the illness and/or disability and other factors such as drug/alcohol misuse, offending behaviour, challenging behaviours, age and personality disorder."
The guidance makes no specific reference to the relevance, if any, of personal support which the applicant may receive and continue to receive from a source other than the housing authority.
"10.30 Section 189(1)(c) provides that a person has priority for accommodation if he or she is vulnerable for any "other special reason". A person with whom such a vulnerable person normally lives or might reasonably be expected to live also has a priority need. The legislation envisages that vulnerability can arise because of factors that are not expressly provided for in statute. Each application must be considered in the light of the facts and circumstances of the case. Moreover, other special reasons giving rise to vulnerability are not restricted to physical or mental characteristics of a person. Where applicants have a need for support but have no family or friends on whom they can depend they may be vulnerable as a result of another special reason." [italics added]
The cases
"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]
"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."
"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]
Appellant's submissions
Respondent's submissions
"… temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine."
In a joint circular from the Departments of the Environment, and Health and Social Security issued on 7 February 1974, the Government declared its objective of shifting the responsibility for providing temporary accommodation to the homeless from social services to housing authorities, where the burden properly lay under powers bestowed in Part V of the Housing Act 1957, save in the case of sudden large scale emergencies beyond the resources of the housing authority.
"PRIORITY GROUPS
8. Homelessness is almost always the extreme form of housing need. The Government believes that all those who have no roof, or who appear likely to lose their shelter within a month, should be helped to secure accommodation by advice, preventative action or, if these are not enough, the provision permanently or temporarily, of local authority accommodation.
9. It should be possible to extend some form of help to all who are homeless, whether families with children, adult families or people living alone. In areas where the housing situation is particularly difficult, however, it will not be possible to help all to the same extent and first claim on the resources available must be given to the most vulnerable, referred to in this circular as "Priority Groups".
10. The Priority Groups comprise families with dependent children living with them, or in care; and adult families or people living alone who either become homeless in an emergency such as fire or flooding or are vulnerable because of old age, disability, pregnancy or other special reasons.
11. For these Priority Groups the issue is not whether, but by what means, local authorities should provide accommodation themselves or help those concerned to obtain accommodation in the private sector. Authorities will not wish to add the stress of uncertainty to the other stresses of those facing homelessness; and where a family or someone else in a priority group seems certain – despite their own efforts and those of the council – to lose their roof, the authorities should accept an obligation at least 7 days before the event and should tell the applicants that they will, in fact, secure accommodation for them.
12. Where a family has children there is no acceptable alternative to accommodation in which the family can be together as a family. The social cost, personal hardship, and long term damage to children, as well as the expense involved in receiving a child in care rules this out as an acceptable course, other than in the exceptional case where professional social worker advice is that there are compelling reasons apart from homelessness for separating children from their family; the provision of shelter from which the husband is excluded is also not acceptable unless there are sound social reasons as, for example, where a wife is seeking temporary refuge following a matrimonial dispute and it is undesirable that she should be under pressure to return home."
"(1) For the purposes of this Act a homeless person or a person threatened with homelessness has a priority need for accommodation when the housing authority are satisfied that he is within one of the following categories:
(a) he has dependent children who are residing with him or who might reasonably be expected to reside with him;
(b) he is homeless or threatened with homelessness as a result of any emergency such as flood, fire, or any other disaster;
(c) he or any person who resides or might reasonably be expected to reside with him is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reasons.
(2) For the purposes of this Act a homeless person or a person threatened with homelessness who is a pregnant woman or resides or might reasonably be expected to reside with a pregnant woman has a priority need for accommodation."
These provisions of the 1977 Act were subsequently consolidated into Part III of the Housing Act 1985. Section 59(1) of the 1985 Act was, as I have observed, in identical terms to the present section 189(1) of the 1996 Act.
"(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purpose of this part whether another person … (b) has a priority need for accommodation."
Discussion
"19...[T]he reviewing officer...broadly applied the Pereira test as she described it at the beginning of her letter, namely in the general sense as to Mr Osmani's ability to fend for himself in his daily activities, as well as to his ability to seek and obtain housing unaided. In addition, in passages that I have emphasised, she clearly had in mind his ability to fend for himself if and when he became homeless." [original emphasis]
It is plain to me that Auld LJ regarded as material to the question whether the applicant could fend for himself when homeless the fact that he received and would continue to receive the support of his wife, as acknowledged by Dr McNicol.
Conclusion
Lord Justice Richards
Lord Justice Moore-Bick