BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morgan v. Stirling Council [2006] ScotCS CSOH_154 (10 October 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_154.html
Cite as: [2006] Hous LR 95, [2006] ScotCS CSOH_154, [2006] CSOH 154, 2006 Hous LR 95, 2006 SLT 962

[New search] [Printable version] [Help]


 

OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 154

 

P1138/06

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD GLENNIE

 

in the Petition of

 

CHARLENE CLAIRE MORGAN

 

Petitioner;

 

against

 

STIRLING COUNCL

 

Respondents:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Petitioner: Govier; Balfour & Manson

Responents: Upton; Dundas & Wilson

 

10 October 2006

 

[1] In this petition for judicial review, the petitioner seeks reduction of certain decisions made by the respondents in May 2006 in so far as they determine (i) that she does not have a priority need for accommodation and (ii) that the respondents are not required to secure that permanent accommodation is made available to her. She also seeks certain ancillary relief.

[2] In terms of section 31(2) of the Housing (Scotland) Act 1987 ("the Act") as amended, the respondents are, in certain circumstances, required to secure that permanent accommodation becomes available for occupation by a homeless person for whom they are responsible. Those circumstances are (a) that they are satisfied that the homeless person has a "priority need" and (b) that they are not satisfied that he or she became homeless intentionally. The respondents accept that the petitioner is homeless but they have intimated that they are not satisfied that she has a priority need. This is the decision which is the subject of challenge in this petition. In light of their assessment that the petitioner is not shown to have a priority need, the respondents say that the question whether the petitioner became homeless intentionally does not presently arise for decision; but they reserve their right to consider that question if I should decide the present action against them.

[3] Section 25(1) of the Act (as amended) identifies categories of persons who have a priority need for accommodation. Amongst those identified in sub-paras.(a)-(i) of that section are pregnant women, men or women with dependent children, persons who are "vulnerable" for a number of specified and other reasons, certain categories of young people, people threatened with religious or racial violence or harassment and those running the risk of domestic abuse. The petitioner falls to be considered under sub-paragraph(c), which identifies the "vulnerable" category in the following terms:

"(c) a person who is vulnerable as a result of -

(i) old age;

(ii) mental illness

(iii) personality disorder;

(iv) learning disability;

(v) physical disability;

(vi) chronic ill health;

(vii) having suffered a miscarriage or undergone an abortion;

(viii) having been discharged from a hospital, a prison or any part of the regular armed forces of the Crown;

(ix) other special reason;"

The word "vulnerable" is not defined in the Act, but it is, I think, clear that it means vulnerable to being left homeless, i.e. unable to cope with homelessness.

[4] It can plausibly be said that everyone is to some extent vulnerable when made homeless. But it was clearly not the intention of parliament that every homeless person should be considered "vulnerable" within this sub-paragraph, since that would mean that every homeless person would be regarded as having a priority need and would render otiose the detailed categorisation of persons having such needs to which I have referred. Accordingly, in assessing vulnerability for the purposes of section 25(1)(c), a comparative assessment requires to be carried out: see Wilson v Nithsdale District Council 1992 SLT 1131. The comparison is between the applicant and the "assumed average or normal or run-of-the-mill homeless person", to use Lord Prosser's not altogether felicitous phrase in that case (at p.1134A). The task for the respondents, in dealing with the petitioner's application, is to ask themselves whether the petitioner, when homeless, will be less able to fend for herself than an ordinary homeless person; so that, in consequence, she is more likely to suffer injury or detriment than the ordinary homeless person. It is implicit in this formulation that the ordinary homeless person, being ex hypothesi less vulnerable and better able to fend for him or herself, will be better able to cope without suffering in that way. The inability to cope, and the injury or detriment likely to be suffered, may take different forms and manifest themselves in different ways. All the circumstances must be taken into account. But before the petitioner can be said to fall within the definition of "vulnerable" for the purpose of section 25(1)(c), it must appear that her ability to fend for herself whilst homeless is more likely to result in injury or detriment to her than would be the case with an ordinary homeless person.

[5] In putting the test in this way I have had regard not only to the Opinion of Lord Prosser in Wilson v Nithsdale District Council but also to the judgments of the Court of Appeal in R v London Borough of Camden ex parte Pereira (1998) 31 HLR 317 (in particular the last paragraph of Hobhouse LJ's judgement), and Griffin v Westminster Council [2004] HLR 32 536. Despite what is said in the English cases, I prefer to use the expression "is more likely to suffer injury" and "is more likely to result in injury" rather than "will suffer" or "will result in injury". Such a test seems to me to be more consonant with the nature of the assessment which the local authority requires to make in terms of the Act. To insist on a finding that suffering or detriment will result, before the applicant can be considered to have a priority need, seems to me to place the bar too high. Nor do I think that certainty is required by the wording of the section. All that the particular sub-paragraph requires is that the applicant is vulnerable. "Vulnerability", as an abstract concept, involves not a certainty of injury but simply a possibility that it may occur. As a comparative concept it simply requires there to be a greater chance (by comparison with the case of the ordinary homeless person) that it will occur. In the Statutory Guidance given by the Scottish Ministers, to which (by reason of section 37 of the Act) the respondents are required to have regard, the test is put in this way: "A person is considered vulnerable when they (sic) are less able to fend for themselves so that they may suffer in a situation where another homeless person would be able to cope without suffering." [emphasis added]. I do not disagree with that test, since in context the word "may" equiparates, in my somewhat different formulation, to "is more likely to". Mr. Upton, for the respondents, accepted that his clients' decision should be judged by reference to this test.

[6] The relevant facts are relatively straightforward. The petitioner lived from at least 2004 in rented accommodation in Alloa. Since November 2005 she had lived there with her boyfriend. Between 27 February and 6 April 2006 she was in custody. Upon her release, she found that her tenancy had been terminated. She went to live with her boyfriend at his parents' home. When her boyfriend's brother returned home, there was no longer any room there for the petitioner and her boyfriend. They became homeless. The petitioner applied to the respondent's Housing Services Department for permanent accommodation in terms of section 31(2) of the Act. In her application form she identified a special need as being her "depression and nervous disability". Her application was assessed and refused. That refusal was communicated by the respondents by letter of 11 May 2006. So far as is material, the letter stated that the respondents considered that the petitioner did not have a priority need in terms of section 25 of the Act. The petitioner sought a review of that decision in terms of section 35A of the Act. I have some doubt as to whether that section applies to the decision taken by the respondents which, to my mind, was a decision under section 30 and not under one of the sections referred to in section 35A(2). Be that as it may, a review took place. The petitioner provided further information and argument. Of particular relevance, so far as this petition is concerned, was the information given to the respondents by the petitioner concerning the success of her treatment for drug abuse. She said in her letter that she had successfully stopped using drugs two years ago. She emphasised the need for stability, and how the uncertainty about housing had caused her key worker from CADS (Community Alcohol and Drugs Service) to put a stop to the gradual reduction of her methadone prescription "as she is concerned the pressure of all of this could make me relapse". She also raised the question of her potential application for custody of her children and how her lack of somewhere to live might affect that, but I do not take this issue further since it formed no part of the petitioner's case on Record or at the hearing before me. That review submission was supported by a letter from her CADS Community Charge Nurse, Janet Hamill, in which Ms. Hamill said that the petitioner had made "outstanding progress" in her Methadone Assisted Treatment and enclosed a letter sent to the petitioner's general practitioner about this. Ms. Hamill also expressed the view that the petitioner "has maintained stability and I would certainly have serious concerns regarding her stability if she were to become intentionally homeless". This material was considered by the respondents in reviewing the earlier decision. They nonetheless came to the view that the earlier decision should be upheld. Their decision letter dated 22 May 2006 identified the possible grounds upon which the petitioner might be regarded as vulnerable as being "chronic ill health" or "other special reason". It recited the letter from Ms. Hamill, noting the petitioner's "outstanding progress in your methadone-assisted treatment" and noting also Ms. Hamill's serious concerns to which I have referred. It referred to the petitioner's concerns that her homelessness might affect her application in respect of her children, though concluded that since the children were not in her care this was not a ground for establishing a priority need - as I have said, this aspect of the decision is not challenged. It then went on to say this:

"Having considered your circumstances, the Council is satisfied that there is no information to suggest that you are less able to fend for yourself so that you may suffer in a situation where others will be able to cope without suffering.

 

Therefore, based on the information given in your application and from the enquiries made by the Council, you cannot be said to be vulnerable in terms of the description in the legislation. In reaching this decision I have had regard to the 2005 Code of Guidance on Homelessness"

The Code of Guidance on Homelessness is the Guidance to which I have already referred.

[7] For the petitioner, Mr. Govier challenged this decision on two grounds. First, he submitted that the respondents had applied the wrong test in assessing vulnerability. They had used the wrong comparator. Instead of comparing the petitioner's vulnerability with that of the ordinary or average homeless person, they had compared it with that of others (whether homeless or not) who were in a comparable position as regards drugs and drug treatment. Secondly, he submitted that, even if they had purported to apply the correct test, the respondents had reached a decision which was unreasonable in the Wednesbury sense (or "irrational" to use the terminology in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374): As it was put in the petition:

"No reasonable decision maker applying its mind to the relevant questions and information before it could ... have concluded that the petitioner did not have a priority need for accommodation being a person who is vulnerable as a result of chronic ill-health or other special reason , by way of the possible effect of a period of homelessness on her recovery from her drugs addiction".

In the petition there was an additional point made, namely that the respondents had failed to take account of the opinion expressed by the CADS Community Charge Nurse, but this point was rightly not pressed at the hearing before me.

 

[8] In my judgement these arguments are unsound and must be rejected. I consider each in turn.

[9] The first argument is that the respondents have applied the wrong test by identifying the wrong comparator. The relevant passage in the letter of 22 May is to this effect:

"... there is no information to suggest that you are less able to fend for yourself so that you may suffer in a situation where others will be able to cope without suffering." [emphasis added].

It is suggested that the respondents are not comparing the petitioner with another (and ordinary) homeless person. I do not accept this. The words which I have italicised show that the comparison is between the petitioner and others "in a situation" where they will be able to cope and she not. That situation is obviously homelessness. It follows that the comparator must be a homeless person. Further, it was accepted in argument that the reference to being able to cope, as used in the cases, was a reference to coping with homelessness. I was not given any reason to think that when the respondents used that same expression they meant something different. If it means, as it must mean, coping with homelessness, it again shows that the comparison is being made with a homeless person. No other person has to cope with homelessness. It was faintly suggested that the respondents had not applied the test of the ordinary or normal homeless person. I reject that suggestion. It is plain, to my mind, that the respondents have sought to apply the test identified in the cases and the Guidance. That test makes it clear that the comparison is to be drawn with the assumed normal or ordinary homeless person. That is the correct test. There is nothing to indicate that the respondents have not applied themselves to that test.

[10] The second argument is that the decision is unreasonable in the Wednesbury sense. In considering such an argument, it must be borne in mind that parliament has entrusted the decision making task to the local authority. There is good reason for this. The local authority will have experience of housing and applicants for housing. It will be in a better position than any judge to assess the comparative vulnerability of any particular applicant. It is clear that the process involves interviewing the applicant, and I was told by Mr. Upton that the applicant was in fact known to the relevant individuals in connection with earlier applications for housing. It will also be in a better position to make an assessment of the vulnerability of the normal or ordinary homeless person in its area. Ultimately the local authority has to make a value judgement. The court is quite unable to do this in the ordinary course. I was shown cases where judges had intervened and held a decision to be unreasonable in the relevant sense, and other cases where they had not. I do not find such an exercise to be particularly useful. The process of assessment as carried out by the local authority in this type of case is infinitely more complex than the kind of comparison I was invited to make by reference to other decisions on other facts. There may be cases where the facts are so extreme that the court can say that the decision made by the local authority defies reason. But the facts of the present case are far removed from such a case. The respondents took account of the expression of concern. They may also have taken account of the fact that, although the petitioner's boyfriend's parents could no longer provide accommodation, they might still be relied on for stability and support. There may have been other factors in their assessment. Some are set out in the Answers to the petition. But I prefer to deal with the matter on the basis that the petitioner has not crossed the threshold of showing an arguable case that the decision of the respondents was unreasonable in a Wednesbury sense. The argument for the petitioner really came down to the proposition that the concern expressed by Ms. Hamill amounted to a statement by her that the petitioner satisfied the test of vulnerability and that the respondents had no alternative but to accept such a statement as conclusive. I cannot accept that. Ms. Hamill's concern is a factor to which the respondents must have due regard, but it is not the only factor in the comparative assessment which they require to make, and the decision is for them, rather than any other professional person, to make. Whilst the position of any homeless person inevitably invites the sympathy of the court, it would do a disservice to the proper administration of the housing service in inevitably difficult circumstances if the court were too readily to second-guess decisions made by local authorities on such matters.

[11] In the circumstances I shall refuse the prayer of the petition.

 

 

 

 

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_154.html