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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Osmani v London Borough of Camden [2004] EWCA Civ 1706 (16 December 2004)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1706.html
Cite as: [2004] EWCA Civ 1706, [2005] HLR 22

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Neutral Citation Number: [2004] EWCA Civ 1706
Case No: B2 2004/1954

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE CRAWFORD LINDSAY QC
ACL52662

Royal Courts of Justice
Strand, London, WC2A 2LL
16th December 2004

B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE AULD
THE RIGHT HONOURABLE LORD JUSTICE JUDGE
and
THE RIGHT HONOURABLE LORD JUSTICE MAY

____________________

Between:
NASER OSMANI
Appellant
- and -

LONDON BOROUGH OF CAMDEN
Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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____________________

Mr Edward Fitzpatrick (instructed by Edwards Duthie) for the Appellant
Mr Bryan McGuire (instructed by The Borough Solicitors) for the Respondent

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

    Lord Justice Auld :

  1. This is a second appeal on a point of law by Mr Naser Osmani, who comes from Kosovo, against a determination of the London Borough of Camden on 18th May 2004 that it had no interim duty to accommodate him as a homeless person under section 188(1) of the Housing Act 1996 because he was not in apparent priority need for accommodation as a "vulnerable" person as defined in 189(1)(c) of the Act. The species of vulnerability in question included in the latter provision is "mental illness or handicap … or other special reason".
  2. Introduction

  3. The issue raised by the appeal is the application of what is called the Pereira test, namely that stated by this Court in R v Camden LBC, ex p Pereira (1999) 31 HLR 317, namely whether a homeless applicant, eligible for assistance would be, when homeless:
  4. "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".

  5. Following the Council's initial determination on 18th February 2003 that Mr Osmani was not vulnerable in that sense and, in consequence, its refusal to secure him and his wife interim accommodation, he requested it to review its decision under section 202 of the Act. For that purpose, he placed before it additional material, including reports as to his vulnerable psychiatric state from Dr Roderick McNicol, his general practitioner, and Ms Kristina Dionisio, a "bi-cultural therapist from the Bosnian Resource Information Centre – Kosovar Support". Whilst the Council was undertaking the requested review, Mr Osmani and his wife were evicted from their privately rented accommodation, and the Council subsequently provided them with temporary accommodation pending completion of its review. On 25th July 2003 the Council, having considered the further information, confirmed its earlier determination.
  6. Mr Osmani then appealed to the County Court on a point of law under section 204 of the Act. The matter came before Ms Recorder Eady, sitting in the Central London County Court, who, on 3rd March 2004, quashed the Council's decision. As a result, the Council was required to conduct a further review under section 202. For the purpose, it requested further assessments from Dr McNicol and Ms Dioniso, which they provided. The Council, having considered the further material, again determined that Mr Osmani was not a vulnerable person as defined by section 189(1)(c) and, therefore, again refused his application for assistance.
  7. Mr Osmani then appealed for the second time to the County Court under section 204, raising as points of law that the Council, in making its determination, had not properly applied the Pereira test in that it had not considered, or considered adequately, the likely effect on his frail psychiatric condition of his becoming homeless as distinct from his current state when not homeless and/or that it had not adequately explained its reasons. The Judge, His Hon. Judge Crawford Lindsay QC, in accordance with the ruling of this Court in Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 and of the House of Lords in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, considered the matter as if it were an application for judicial review of the Council's determination. On that basis, whilst expressing some unease on the merits of the determination, he dismissed the appeal because he did not consider it to be Wednesbury unreasonable or otherwise unlawful.
  8. The matter now comes before this Court essentially by way of challenge of the Council's determination, Mr Osmani, maintaining, as he did before the Judge, that it had not properly applied the Pereira test in that it had not considered, or considered adequately, the effect on his frail psychiatric condition of his becoming homeless as distinct from his current state when not homeless and in temporary accommodation provided by the Council.
  9. The facts

  10. The facts of the case in a little more detail are as follows.
  11. Mr Osmani was born in Pristina, in Kosovo. In 1996 he was arrested by the Yugoslav authorities and taken to prison. He remained in prison for 18 months, during which time he was subjected to severe beatings by the police and was refused visits from family or friends. He was deeply disturbed by his experiences, and, following his release, spent several weeks as an in-patient at a psychiatric hospital in Kosovo.
  12. Mr Osmani was quickly re-arrested by the Serbian Authorities and was due to serve a second prison sentence. Because of this, and fearful that he would not survive another period of imprisonment, his family managed to secure a passage for him out of Kosovo. He arrived in the United Kingdom in August 1998 and went to live with family members in North London. In late 1999 he was granted indefinite leave to remain, and, in May 2001 his wife came from Kosovo to join him here. In October 2001, they moved into private rented accommodation in London where they remained until early 2003. In January 2003 their landlord served them with notice to quit.
  13. On receipt of the notice to quit, Mr Osmani applied to the Council under Part VII of the 1996 Act for assistance to himself and his wife as vulnerable persons threatened with homelessness. As I have indicated, on 18th February 2003 the Council notified him of the outcome of its inquiry under section 184 of the Act into his eligibility for assistance and as to what, if any, duty it owed him, and of its conclusion that, although he was threatened with homelessness and eligible for assistance, he did not qualify as "vulnerable" under section 189(1)(c) and, therefore, did not have "a priority need for accommodation" under section 188(1).
  14. Mr Osmani requested a review of the decision and sought legal advice. In April 2003 solicitors whom he instructed wrote to the Council informing it, among other things, that Mr Osmani suffered from mental health problems and that such problems had been recognised by the Social Security Appeals Tribunal. The solicitors requested immediate provision of housing for him and his wife.
  15. On 8th April 2003, whilst the Council was reviewing its decision, Mr and Mrs Osmani were evicted from their privately rented accommodation. As I have said, the Council subsequently provided them with temporary accommodation whilst it continued with the review, obtaining, as I have also said, information from Dr McNicol and Ms Dionisio. Dr McNicol reported that Mr Osmani suffered from back pain, was depressed and that his mental state was deteriorating. He indicated that stability and an area of quiet/secure accommodation were required. Ms Dionisio diagnosed him as suffering from post-traumatic stress disorder and a major depressive disorder. She expressed the view that he was a vulnerable person on the grounds of mental illness and that, as such, he needed help with his accommodation in order that his mental health did not deteriorate further. Also, on 25th July 2003 the Council wrote to Mr Osmani confirming its earlier decision that he was not considered to have a priority need by virtue of vulnerability. On 5th August Mr Osmani requested a further review under section 202 of the Act. On 15th September the Council notified him that that it adhered to its earlier determination.
  16. Following Mr Osmani's successful appeal in early March 2004 to Ms Recorder Eady under section 204 of the Act, the Council then conducted, as I have said, a further review under section 202 requesting for the purpose, further medical and psychiatric assessments from Dr McNicol and Ms Dionisio, both of whom confirmed their earlier reports.
  17. Dr McNicol wrote about Mr Osmani's continued treatment for, among other things, depression and post-traumatic stress disorder, but stated that he was fully functional save for language problems. He also stated, under the heading of "Current diagnosis and relevant past medical history that is affected by current housing":
  18. "… 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"
  19. Ms Dionisio included the following in a lengthy report:
  20. "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'. …"
  21. Following receipt of these further reports, the Council's medical assessment officer, a Mr Divwala, a psychologist, who did not himself see Mr Osmani, produced a medical assessment report. In it, he stated "I would not consider Mr N Osmani to be 'vulnerable' on medical grounds". He noted a number of contradictions that he perceived in Mr McNicol and Ms Dionisio's reports, including the former's report showing Mr Osmani to be fully functional, save for language problems, with the latter's opinion that he was not, and concluded:
  22. "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."
  23. On 18th May 2004 the Council's reviewing officer, having considered the further information provided on behalf of Mr Osmani and by its own medical assessment officer, wrote to Mr Osmani confirming, in a five and a half page letter, its original decision of his lack of vulnerability within the meaning of section 189(1)(c). The officer prefaced her consideration of the issues by referring to the Pereira test correctly in the following terms:
  24. "…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.

  25. Having so described the test, the reviewing officer set out the history of the matter and the medical and other assessments either way, and gave the Council's reasons for her determination in the following terms:
  26. "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)
  27. Despite the somewhat convoluted form of the final paragraph, the reviewing officer, in that lengthy explanation of her conclusion, broadly applied the Pereira test as she had 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 the passages that I have emphasised, she clearly had in mind his ability to fend for himself if and when he became homeless.
  28. On Mr Osmani's further appeal to the County Court, His Honour Judge Crawford Lindasy QC, in a short - but none the worse for that - judgment, upheld the Council's decision.
  29. In doing so, he expressed some sympathy for Mr Osmani's difficulties and some criticism of the Council's reviewing officer's expression of her reasons. However, in the light of Nipa Begum and Runa Begum, he took the view that he should approach the matter on a Wednesbury basis, not substitute his own views for those of the officer. He said:
  30. "… 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."
  31. On that basis and after considering the submissions on both sides, he concluded that it had been open to the reviewing officer to reach the decision that she had. The Council had made proper enquiries, obtained reports from the relevant medical advisers and had then properly obtained advice from its medical assessment officer. He did not consider that the Council had had any obligation to seek further advice given the financial constraints on local housing authorities and the calls on their resources. Whilst he considered that the reviewing officer could have expressed her final conclusion better than she had done, she had applied the correct test of vulnerability and he was satisfied that her decision that Mr Osmani was not vulnerable in accordance with that test was not perverse.
  32. The submissions

  33. Mr Edward Fitzpatrick, on behalf of Mr Osmani, submitted that the Pereira test of vulnerability was not confined to the effect on an applicant's ability, when street homeless, to fend for himself in obtaining housing, but also extended to more general aspects of fending for himself if he did not succeed in obtaining accommodation, namely the test as applied by the reviewing officer.
  34. In his skeleton argument he made a number of overlapping and largely semantic or textual criticisms of the reviewing officer's reasoning and others that are not supported by the reasoning when it is read as a whole. In his oral submissions he focused on what he described as two main points, but which, on a proper analysis, were one, namely perversity.
  35. The first was that there is nothing in the reviewing officer's decision letter that addresses the Pereira question whether Mr Osmani, as a result of his depressive condition would be less able to fend for himself if he were to become homeless. He criticised the officer for not having specifically asked, when seeking further medical evidence, how Mr Osmani would cope should he lose the temporary accommodation that the Council had secured for him. And he suggested that neither the Council's medical assessment officer nor the reviewing officer in the decision letter had grappled with that question – the effect of street homelessness on Mr Osmani as a person whose psychiatric state was already fragile - as distinct from his current functional abilities whilst in temporary accommodation. In this connection, he referred the Court to the following passage from paragraph 16 of the judgment of Kennedy LJ, with whom Clarke and Jacob LJJ agreed, in Griffin v Westminster City Council [2004] HLR 32:
  36. "… 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. …"
  37. Secondly, Mr Fitzpatrick suggested that the Judge had wrongly held that the reviewing officer had properly applied the Pereira test and that it was Wednesbury reasonable, whereas it was apparent from the lack or paucity of reasoning on assessment of future risk of vulnerability in the event of homelessness that she had paid no more than lip service to the Pereira test. He suggested that her references to and apparent conclusions on this question in the passages from her letter that I have set out and emphasised in paragraph 19 above were insufficiently reasoned.
  38. He underlined both of those submissions by reference to Brooke LJ's observations in R v Newham LBC, ex p Lumley (2003) 33 HLR 111, at para 63, that a local housing authority considering its duty under this provision should give proper weight to the debilitating effects of depressive disorders when facing or coping with street homelessness.
  39. Mr Bryan McGuire, on behalf of the Council, drew attention to the difficult evaluative exercise for local housing authorities in determining questions of vulnerability and to the guidance given to them by the Pereira test. He submitted that that test was concerned with a lowering of ability of a street homeless applicant to fend for himself in obtaining housing, not with any more general effects on him if he failed to find accommodation unaided. He submitted that the reviewing officer, in her decision letter, correctly identified the test and fully set out her consideration of the medical evidence as to Mr Osmani's mental condition, on which there was no dispute. The only issue for the officer, he noted, was whether in the light of that evidence, he was vulnerable within the meaning of the Act. As to her treatment of that issue in the long passages of the letter giving her reasons for confirming the earlier decision, he challenged Mr Fitzpatrick's assertion that she had confined herself to a consideration of his, Mr Osmani's current condition. He pointed out the various passage to which I have drawn attention in paragraph 19 above, in which she referred to the likely effect on him if he were to became homeless. He acknowledged that she had begun her reasoning exercise by referring to the matter in the present tense, "In view of the above, I went on to consider how your depression and post-traumatic stress disorder, back pain and limited English has affected you". (my emphasis) However, he said, her subsequent treatment of the matter clearly indicates that she had very much in mind the question of future risk of vulnerability in the section 189(1)(c) sense if Mr Osmani were to become homeless, as distinct from the effect of his various difficulties on him while temporarily accommodated by the Council.
  40. Mr McGuire maintained that the reviewing officer's approach met the Pereira test whether construed narrowly in the sense of ability to seek and obtain housing unaided or broadly as to ability to cope with normal daily activities. But - perhaps wrongly prompted by the Court in the course of his submissions – he argued for the narrower construction of the test.
  41. Mr McGuire maintained that, although the reviewing officer, applying the same and correct test, might have reached a different decision as to vulnerability on the medical and psychological evidence, her decision was not outside the range of reasonable responses to the question which, in the end, was not exclusively a medical one. He pointed out that to the extent that the vulnerability concerned Mr Osmani's ability to look for a home unaided, the threshold was in practice not very high, namely of looking for privately rented accommodation, through, for example, newspaper advertisements and enquiries of estate agents and of making application for housing benefit in respect of the selected property.
  42. On the issue of the sufficiency of the reviewing officer's reasons, he submitted that the analysis in the lengthy passage from the decision letter, concluding with the words, which, for convenience I repeat, were sufficient reasons for the purpose:
  43. "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."
  44. He said that, although this was somewhat clumsily expressed, the meaning and reasoning are plain and that to ask any more of the reviewing officer, especially taking into account her balancing and expression of views on the competing evidence, would be to ask for reasons for reasons.
  45. The law

  46. In Runa Begum Lord Bingham of Cornhill, at paragraph 7 of his speech, identified the ambit of a "judicial review" challenge in the context of a homelessness appeal to the County Court under section 204 of the 1996 Act:
  47. " … 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."
  48. As Mr McGuire observed, the main focus of attention on a second appeal such as this should be on the decision of the Council rather than that of the County Court Judge on appeal from it. As I have said, the appeal lies only on a point of law, and, within the Wednesbury type formulation given by Lord Bingham, matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread warily before interfering. Lord Walker of Gestingthorpe acknowledged the complexity of the task for housing authority administrators in the following passage from his speech in Runa Begum, at paragraph 114 of his speech:
  49. "… 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 … "
  50. Before considering the precise nature of the legal question for application by the Council, I should set out the material terms of section 189, which specifies who has a priority need for accommodation, namely –
  51. "(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."
  52. In the exercise of its functions relating to homelessness and its prevention a local housing authority or social services authority is required by section 182 of the 1996 Act to "have regard to such guidance as may from time to time be given by the Secretary of State. The current guidance in relation to vulnerability under section 189(1)(c) is to be found in the Secretary of State's Homelessness Code of Guidance for Local Authorities, at paragraph 8.13, which provides so far as material:
  53. "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."
  54. Earlier guidance was in substantially similar terms and eventually found its expression in the classic test of Hobhouse LJ (as he then was) in Pereira on the meaning of the word "vulnerable" in section 59(1)(c) of the Housing Act 1985, the predecessor of section 189(1)(c). In order properly to analyse the rival submissions in this case, I should set out, with some emphases of my own, the bulk of the passage in Hobhouse LJ's judgment, at 330, with which Waller LJ and Robert Walker LJ (as he then was) agreed, in which his expression of the test appears:
  55. "… 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."
  56. I draw the following conclusions about section 189(1)(c) and that formulation of its meaning:
  57. 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 [1986] AC 484, 517 and Lord Hoffmann in O'Rourke v Camden LBC [1990] 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 [1983] 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[1]), 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.

    Conclusions

  58. In my view, the decision letter in this case, meets all those requirements when subjected to a judicial review challenge under section 204 of the 1996 Act. The reviewing officer sought and obtained evidence going to the risk assessment as to the future vulnerability of Mr Osmani that was required of her by section 189(1)(c) as interpreted in Pereira. It is true that, after summarising the evidence either way, she began (see the third paragraph of the passage set out in paragraph 19 above) by referring to the matter in the present tense, "In view of the above, I went on to consider how your depression and post-traumatic stress disorder, back pain and limited English has affected you". [my emphasis] However, as I have said (in paragraph 19 above) and as Mr McGuire submitted, she went on in a number of passages clearly to indicate that she had very much in mind the question of future risk of vulnerability in the section 189(1)(c) sense if Mr Osmani were to become homeless, as distinct from the effect of his various difficulties on him while temporarily accommodated by the Council. It is not enough on this section 204 challenge to dismiss these references to the future, albeit somewhat cryptic, as merely paying "lip service" to the appropriate test.
  59. As to perversity, it has to be kept in mind that vulnerability under section 189(1)(c), depending on 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 she addressed, was one of assessing the future risk 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 that was reasonably open to her. I do not regard it as perverse, even though another reviewing officer might have decided differently. On such an evaluative decision in this field, involving, as it does, a balancing of individual priorities in the provision of a local social service, courts should indeed tread warily before they intervene.
  60. On the barely separate issue in the circumstances of the sufficiency of the reviewing officer's 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 both 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 cooperating 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.
  61. For all those reasons, I would dismiss the appeal.
  62. Lord Justice Judge:

  63. I agree.
  64. Lord Justice May:

  65. I also agree.
  66. ______________

    ORDER:

    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.

    (Order does not form part of approved Judgment)

Note 1   …Homelessness Code of Guidance for Local Authorities (Office of Deputy Prime Minister July 2002).    [Back]


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