Homelessness - vulnerability

One of the most contentious areas of homelessness is whether a person is in priority need under section 189(1)(c) of the Housing Act 1996 by virtue of being 'vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason'. Many county court appeals concern single persons with mental health problems, often former asylum-seekers suffering from post-traumatic stress disorder and depression.


For some time, it has been established that the test for the authority to apply is that set out by the Court of Appeal in R v Camden LBC, ex parte Pereira [1998] 31 HLR 317, namely whether, when homeless, the applicant will be 'less able to fend for himself than an ordinary homeless person so that injury or detriment to him would have resulted when a less vulnerable man would be able to cope without harmful effect'. In a series of recent decisions, the Court of Appeal has considered both the Pereira test itself and local authorities' procedures in deciding vulnerability.


In Griffin v Westminster CC [2004] EWCA Civ 108; [2004] HLR 32, the authority's decision letter applied the Pereira test but the applicant contended that it should have applied the slightly lower threshold for vulnerability contained in paragraph 8.13 of the Code of Guidance, which advised that a person is vulnerable if he would be likely to suffer injury or detriment rather than if he would suffer injury or detriment. The Court of Appeal rejected this argument and recommended that the code should be amended to reflect the wording of the Pereira test.


In Osmani v Camden LBC [2004] EWCA Civ 1706, the Court of Appeal revisited the Pereira test and emphasised that the decision is for the authority and that courts should rarely intervene. As the test involves comparison between the applicant and an 'ordinary homeless person', it necessarily involves an imprecise exercise. Given that authorities are charged with applying a scheme of priorities in the context of their own local housing circumstances, decisions on vulnerability are likely to be highly judgemental and authorities are best placed to make them.


Although authorities should pay close regard to medical evidence, it is not for medical experts to determine the issue of vulnerability. However, the court emphasised that an authority must assess an applicant's vulnerability on the assumption that he is, or will become, homeless. This may be a difficult task when the available evidence of a person's ability to fend for himself will usually relate to the time when the applicant has accommodation.


The principle that it is for the authority to decide the issue was reiterated in Kruja v Enfield LBC [2004] EWCA Civ 1775, in which the county court judge had taken an erroneous view of the medical evidence and substituted his view for that of the authority.


Given that the issue of vulnerability is solely for the authority, it is unsurprising that successful appeals have focused on defects in the authority's decision-making process. In the joined appeals of Hall v Wandsworth LBC and Carter v Wandsworth LBC [2004] EWCA Civ 1740, the most important issue was the application of regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999/71). This provides that where the reviewing officer considers that there is a 'deficiency' in the authority's original decision, he is obliged to write to the applicant informing him of his proposed decision and inviting representations.


The court held that 'deficiency' in this context merely means 'something lacking'. It is not limited to failings that provide grounds for judicial review. However, the failing must be of sufficient importance to the fairness of the procedure to justify the additional procedural safeguard contained in regulation 8(2). The issue is one for the reviewing officer's judgement.


Accordingly, a decision not to apply regulation 8(2) can only be challenged on Wednesbury grounds. In Hall, the court held that the reviewing officer should have applied regulation 8(2) because the original decision letter was unclear as to the test for vulnerability that was applied. In contrast, the criticism of the (albeit brief) reasons in the original decision in Carter were not sufficient to trigger regulation 8(2).


The decision is also significant for the court's consideration of other issues that commonly arise in vulnerability appeals. In Hall, the appellant had a strong report from his GP, stating that he was vulnerable by reason of his depression. The authority referred the report to their independent medical adviser (IMA), who stated that he was not vulnerable. That opinion was not referred to the appellant or her advisers to allow them to comment.


It was argued that merely referring the GP's report to the IMA did not amount to making proper inquiries into the appellant's medical condition. The court rejected this argument. The IMA could have advised that further inquiries or specialist advice was required. As he had not done so, there was no reason for the reviewing officer to go behind his advice and make any further inquiries into the appellant's mental health.


It was also argued that the authority should have allowed the appellant to comment on the IMA's opinion before making its decision. The court drew a distinction between advice that raises new issues or contentious points, on which the appellant should be allowed to comment in the interests of fairness, and advice that is merely directed to assisting the authority to assess the weight to be given to evidence on matters that are already fully in play. In the latter case, there is no automatic obligation to disclose it to the applicant before making a decision.


A similar approach was taken in Tetteh v Kingstonupon Thames RBC [2004] EWCA Civ 1775. In that case, the appellant was a recovering drug addict who applied for assistance on his release from prison. The authority's decision that the appellant was not vulnerable was challenged on the grounds that it had failed to interview him and had not put to him doubts about the validity of his claim before making a decision.


Dismissing the appeal, the court held that it was for the authority to decide whether it was necessary to interview an applicant. The appellant's case had been set out fully in correspondence and there was nothing that required an interview. Likewise, where, as here, the facts are not contested but the authority takes a different view as to whether someone is vulnerable, it is not required to invite representations.


By Andrew Dymond, Barrister, Arden Chambers, London