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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] CSOH 154, 2006 SLT 962, [2006] ScotCS CSOH_154, [2006] Hous LR 95 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 154 |
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P1138/06 |
OPINION OF LORD GLENNIE in the Petition of CHARLENE CLAIRE MORGAN Petitioner; against Respondents: ญญญญญญญญญญญญญญญญญ________________ |
Petitioner: Govier; Balfour &
Manson
Responents:
[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.
"(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.
[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
"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.
"... 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.