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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Osmani v London Borough of Camden  EWCA Civ 1706 (16 December 2004)
Cite as:  HLR 22,  EWCA Civ 1706
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CRAWFORD LINDSAY QC
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE JUDGE
THE RIGHT HONOURABLE LORD JUSTICE MAY
| NASER OSMANI
|- and -
|LONDON BOROUGH OF CAMDEN
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bryan McGuire (instructed by The Borough Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Auld :
"less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects."
Potter LJ, who gave permission to appeal, did so because he considered that "[t]he impact of the Pereira test in practice is important".
" His continued homeless situation is persisting in exacerbating all of the above in my opinion. It is increasing his level of stress which risks making him more unwell and leading to a deterioration in his depressive symptoms and post-traumatic stress. Furthermore the above is making it difficult if not impossible for him being able to secure or find permanent accommodation. To leave this man without a secure place to live puts this man's mental health at serious risk."
And, under the heading "Prognosis", he wrote:
"Poor if does not find or is not found suitable accommodation in the very near future"
"2. Mr Osmani remains acutely symptomatic. He continues to present with a large number of symptoms of PTSD and Major Depressive Disorder (MDD) In my opinion, he is a vulnerable person on the grounds of his impaired mental health.
3. Suicidal ideation is present but it has been difficult lately to establish whether or not he has a plan to act it out. His answer pertaining to these questions is that 'everything is possible to happen in a given moment'. From my understanding of his cultural background it is not appropriate to discuss in such an overt way such profoundly personal feelings.
4. Mr Osmani's unstable condition clearly makes him unfit to fully function in his everyday life and to fend for himself. He is now suffering from recognised psychiatric disorders; as such he is a vulnerable person and his social and his occupational functioning is impaired.
5 Whilst there is good empirical evidence demonstrating that both PTSD and MDD can be successfully treated, there is a requirement that such treatment can proceed safely only when a stable 'recovery' environment including housing needs has been secured for the patient. With Mr Osmani it has not been possible to go ahead with a core part of the treatment, a 'trauma focused phase'. "
"5. Based on his Dr's report I would not consider Mr N Osmani to be 'vulnerable' on medical grounds. No doubt the difficulty of fending for himself would be more difficult due to the fact that English is his second language; in all probability he has a lack of financial resources and employment, which would compound his difficulty generally. HPU [Homeless Persons Unit], based on these reports, I would not advise Mr N Osmani as being less able to fend for himself etc. Prognosis says 'poor if he does not find a flat or a flat is not found for him'. So whether detriment and injury would definitely result to him is somewhat dubious, as I feel that he is not less capable of fending for himself on medical grounds; but no doubt the difficulty with language/financial resources/unemployment may impede his search for his own housing."
" whether the applicant is, when homeless, less able to fend for himself than his/her peers so that injury or detriment to him will result when a less vulnerable person would be able to cope without harmful effect." [my emphasis]
It should be noted that, in so describing the nature of the vulnerability, the reviewing officer did not confine it to an effect on the ability of a homeless person to seek and obtain housing unaided, but also put it in more general terms, consistent with its effect on such a person's ability to fend for himself without harm in the everyday activities of life.
"When Ms Dionisio was asked about your ability to function in everyday life and fend for yourself, she responded that you are vulnerable and your condition impairs your social and occupational functioning.
Having considered Ms Dionisio's information , in particular her diagnosis of posttraumatic stress disorder and a major depressive episode I can confirm that I accept the above diagnosis. But notwithstanding the medical label attached to your condition, I remind myself that I am to consider your condition and the characteristics of your condition in light of the Pereira test detailed earlier.
In view of the above, I went on to consider how your depression and posttraumatic stress disorder, back pain and limited English, has affected you in performing tasks associated with daily living.
I noted that although Ms Dionisio states that your social and occupational functioning is impaired, she provides no further explanation of this. I went on to consider the details provided by your GP with respect to this aspect of your case.
I noted that Dr McNicol noted that you were fully mobile, you can use private and public transport, you can manage shopping and you can manage stairs. Also, Dr McNicol viewed your exercise tolerance on flat surfaces and inclines, as independent.
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.
I considered that you arrived in the UK in 2001 as an Asylum Seeker. Whilst I am sympathetic to the difficulties in arriving in a new country as an Asylum Seeker, particularly given that you had to flee your home because of fear of persecution. I am of the opinion that you have been resident in the UK for a few years and I do not think that this factor impedes your ability to fend for yourself if homeless.
Further to the above, I noted that since your arrival you have managed [to] find and maintain private 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 have [sic] also acknowledged this and there is no evidence that this will cease.
Although, I acknowledge that Ms Dionisio stated that you have may have some suicidal ideation, I noted that you do not have any history [of] suicide attempts and you do not appear to have any active plans. I noted that no psychotic feature were [sic] identified.
Whilst I acknowledge that you are in receipt of incapacity benefit, I am of the view that incapacity benefit relates to whether a person is able to work or not and does not have a significant bearing on whether a person is vulnerable if homeless.
It is apparent that there must be some infirmity or characteristic of the applicant, which marks out their vulnerability from that of other applicants. I am of the view that there were no such circumstances in your [case.] I am confident that you are no less able to fend for yourself when homeless than your peers so that injury or detriment to you will not result when a more vulnerable person would not be able to cope without harmful effect. " (my emphases)
" whatever my view is about the merits, whatever my sympathy with the Appellant, I cannot and do not seek to substitute my own decision, and I, of course, have to approach the case on the basis of the authorities."
" the Review Officer did not misunderstand the test. He knew that there would always be an element of uncertainty, but had to consider the facts and reach his own assessment as to what would happen. Would the claimant, when homeless, because of his reactive depression, be less well able to fend for himself than an ordinary homeless person so that he would suffer injury or detriment? Detriment in that context might include, in a particular case, a significantly increased risk of suicide or of developing some serious ailment. "
"I am confident that you are no less able to fend for yourself than your peers when homeless so that injury or detriment to you will not result when a more vulnerable person would not be able to cope without harmful effect."
" the court may not only quash the authority's decision under section 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there was no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact. In the present context I would expect the county court judge to be alert to any indication that an applicant's case might not have been resolved by the authority in a fair, objective and even-handed way, conscious of the authority's role as decision maker and of the immense importance of its decision to an applicant. But I can see no warrant for applying in this context notions of 'anxious scrutiny' or more rigorous tha[n] would ordinarily and properly be conducted by a careful and competent judge determining an application for judicial review."
" It is apparent that the process [by which a homeless person becomes entitled to the performance of the full housing duty] involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment.
Establishing priority need may call for the exercise, and sometimes for a very difficult exercise of evaluative judgment. the identification of a 'vulnerable' person may present real problems "
"(a) a pregnant woman or a person with whom she resides or might reasonably be 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."
"The critical test of vulnerability for applicants in all these categories is whether, when homeless, the applicant would be less able to fend for himself than the ordinary homeless person so that he would be likely to suffer injury or detriment, in circumstances where a less vulnerable would be able to cope without harmful effects
In considering whether such applicants are vulnerable, factors that a housing authority may well wish to take into account are:
(i) the nature and extent of the illness or disability which may render the applicant vulnerable; and
(ii) the relationship between the illness or disability and the individual's housing difficulties."
" The Ortiz test should not be used: the dictum of Simon Brown LJ in that case should no longer be considered good law (The same applies to what Mann J. said in Di Dominico). 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 reason. 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 man 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 was 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. In so far as the judgments of Hodgson J. in Sangeramano and Webster J. in Carroll might be thought to suggest something different, those dicta should not be followed."
1) It is section 189(1)(c) in its broad and immediate statutory context that a local housing authority has to apply, not the Pereira test as if it were a statutory formulation. The Pereira test is simply a judicial guide - albeit and to the extent that it is sufficiently precise, an important one - to interpretation and application of the statutory provision.
2) The broad statutory context involves, as Hobhouse LJ noted at page 320 of his judgment in Pereira, by reference to observations of Lord Brightman in ex p Pulhofer  AC 484, 517 and Lord Hoffmann in O'Rourke v Camden LBC  3WLR 86, at 90: first, a matter of "priority" as between homeless persons; and second, a scheme of social welfare conferring benefits at public expense on grounds of public policy on those whom it identifies as entitled to such priority.
3) The scheme of the section is not to establish whether an applicant is homeless, but to establish whether he is a person whom the local housing authority believes to be homeless and eligible for assistance has a priority need entitling him to assistance. It does that by defining a number of circumstances, one of which is vulnerability, by which he may qualify as a person having a priority need.
4) Periera establishes that a person is vulnerable for the purpose if he has such a lesser ability than that of a hypothetically "ordinary homeless person" to fend for himself that he would suffer greater harm from homelessness than would such a person. One has only to attempt to apply the Pereira test to any particular case by asking the question whether the applicant would, by reason of whatever condition or circumstances assail him, suffer greater harm from homelessness than an "ordinary homeless person", to see what a necessarily imprecise exercise of comparison it imposes on a local housing authority. Given that each authority is charged with local application of a national scheme of priorities put against its own burden of homeless persons and finite resources, such decisions are often likely to be highly judgmental. In the context of balancing the priorities of such persons a local housing authority is likely to be better placed in most instances for making such a judgment.
5) In its immediate context, Pereira established that a homeless applicant's lesser ability than that of "an ordinary homeless person" to fend for himself in finding suitable accommodation may, on its own or in combination with other circumstances, amount to vulnerability for this purpose. However, the test does not impose as the sole, or even an integral, requirement of the notion of fending for oneself that an applicant should also be less able than normal to fend for himself in finding accommodation. I derive that proposition, not only from the context of the other categories of those qualifying for priority for which section 189(1) provide and which could not logically be so confined, but also from the following consideration of Hobhouse LJ's judgment against the backcloth of authorities to which he referred.
a) Hobhouse LJ began his judgment by mooting the possibility that "vulnerability" as defined in paragraph (c) is not general vulnerability but is confined to the effect of any of its manifestations described in that paragraph on a homeless person's ability to find a home without statutory assistance. Thus, he said, at pages 319 and 320:
" 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 to 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." (my emphases)
b) It is apparent from his judgment at pages 320 and 321 that he was influenced in considering that tentative distinction by the reasoning of the Court, given by Waller LJ in R v Waveney Council, ex p Bowers  1 QB 238, which was adopted by the Secretary of State as part of his guidance to which, by section 71 of the 1985 Act (see now section 182 of the 1996 Act and the current guidance), local housing authorities are required to have regard in the exercise of their functions. It is from such reasoning, its treatment by subsequent authorities and the guidance that he drew the test that he formulated on page 330 of his judgment (see paragraph 38 above).
c) However, the treatment of the guidance in a number of first instance authorities to which he went on to refer was variously: to regard it: 1) as expanding or going beyond the meaning of an ability to "fend for oneself when homeless so as to include a consideration of an ability to find and keep accommodation ex p Sangeramano (1984) 17 HLR 94, per Hodgson J; and ex p Carroll (1987) 20 HLR 142, per Webster J; or 2) as confining it to such consideration, that is, vulnerability in the housing market ex p Di Dominico (1987) 20 HLR 153, per Mann J (as he then was). The latter meaning was approved, though extended by Simon Brown LJ in Ortiz v City of Westminster (1993) 27 HLR 364, in refusing leave to appeal so as to make it one of two essential requirements, the other being greater suffering than most if the applicant fails to obtain suitable accommodation.
d) The uncertainty left by these authorities was considered but not clearly resolved by this Court in R v Kensington & Chelsea LBC, ex p Kihara (1996) 29 HLR 147, in which Simon Brown LJ, whilst expressing doubts as to the cumulative nature of the two requirements he had suggested in Ortiz, expressed the view that either might do, though less ability than an ordinary homeless person to find accommodation might "on occasion have more to do with whether or not the applicant is truly homeless". However, the judgment of Neill LJ, with which Simon Brown and Waite LJJ agreed, was that the words "other special reason" in what was then section 59(1)(c) of the 1985 Act were capable of including a number of circumstances that went beyond difficulty in finding accommodation.
e) A careful reading of Hobhouse LJ's reasoning in expressing the meaning of vulnerability in this statutory context, at page 330 of his judgment indicates a similar approach, namely that the word is capable of being met by one or more of a number of circumstances, one of which may, but need not, be greater difficulty than "an ordinary homeless person" in obtaining accommodation. Thus, he prefaced his articulation of the test (see paragraph 38 above) by stating that Simon Brown LJ's and Mann J's treatment of such a difficulty as an essential requirement of the test in Ortiz and Di Domenico should not be followed. And he concludes his treatment of it by saying the same about two other, first instance, authorities to like effect. And, in his elaboration of the test he made that plain by saying that whilst a homeless person's handicap in obtaining housing for himself "[could] be an aspect of his inability to fend for himself", it was "still necessary to take account and assess whether in all the circumstances the applicant's ability to cope comes within paragraph (c)".
f) Thus, Hobhouse LJ ends his judgment by rejecting the "potential" for contrast between paragraph (c) and the other paragraphs of section 189(1) with which he opened his consideration of the provision at page 319 of his judgment.
6) Despite some dicta suggesting the contrary, the test is a single one of a homeless person's less than normal ability to fend for himself such that he will suffer more harm than would an ordinary homeless person a "composite" assessment, as Hobhouse LJ put it.
7) For the purpose of applying the vulnerability test a local housing authority should take care to assess and apply it on the assumption that an applicant has become or will become street homeless, not on his ability to fend for himself while still housed. In this respect, it should have regard to the particular debilitating effects of depressive disorders and the fragility of those suffering from them if suddenly deprived of the prop of their own home; see the observations of Brooke LJ in R v Newham LBC, ex p Lumley (2003) 33 HLR 111, at para 63.
8) Nevertheless, although authorities should look for and pay close regard to medical evidence submitted in support of applicants' claims of vulnerability on account of mental illness or handicap, it is for it, not medical experts, to determine this statutory issue of vulnerability.
9) Sections 184(3) and 202(3) of the 1996 Act require an authority when notifying an applicant of its decisions under these and other of its provisions, to give him reasons for any decision adverse to his interests. The reasons should be sufficient to enable him to form a view as to whether to challenge it on a point of law in the sense indicated by Lord Bingham in Runa Begum (see paragraph 34 above); see R v LB of Croydon (1993) 26 HLR 286, per Sir Thomas Bingham MR, at 291-292 and Steyn LJ at 292. However, decision letters under this provision should not be treated as if they were statutes or judgments and subjected to "pedantic exegesis" as Sir Thomas Bingham put it in the passage in the LB of Croydon case which I have identified. It is also important, when looking for the reasoning in such a letter, to read it as a whole to get its full sense.
Lord Justice Judge:
Lord Justice May:
1. Appeal Dismissed
2. The Costs of the Respondent of and occasioned by the appeal shall be paid by the Appellant. Determination of the amount of costs to be paid be deferred pending assessment by the costs judge of what sum it would be reasonable for the Appellant to pay pursuant to section 11 of the Access to Justice Act 1999.
3. There shall be detailed assessment of the Appellant's costs pursuant to paragraph 4 on the Community Legal Services (Funding) Order 2000.
Homelessness Code of Guidance for Local Authorities (Office of Deputy Prime Minister July 2002). [Back]
Note 1 Homelessness Code of Guidance for Local Authorities (Office of Deputy Prime Minister July 2002). [Back]