Johnson v Solihull
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Jackson,Lord Justice McCombe |
| Judgment Date | 06 June 2013 |
| Neutral Citation | [2013] EWCA Civ 752 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case no: B5/2012/2520 |
| Date | 06 June 2013 |
[2013] EWCA Civ 752
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE OLIVER JONES QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Lord Justice Mccombe
Case no: B5/2012/2520
Mr Lindsay Johnson (instructed by Evans Derry Solicitors) appeared on behalf of the Applicant.
Ms Catherine Rowlands (instructed by Cornerstone Barristers) appeared on behalf of the Respondent
This is a second appeal from the order of HHJ Oliver Jones QC, sitting in the Birmingham County Court, whereby he dismissed the appeal of the appellant, Mr Craig Johnson, under section 204 of the Housing Act 1996 against the decision of the respondent, which I will call Solihull, following a review of the decision dated 8 May 2012 that Mr Johnson was not in priority need for the purposes of section 189(1)(c) of the 1996 Act. This provides:
"(1) The following have a priority need for accommodation —
[… ]
(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…"
The category of persons who are specifically described as "homeless" for the purposes of priority need has been extended pursuant to powers conferred by section 189(2) of the Homelessness (Priority Need for Accommodation) (England) Order 2002.
The meaning of "vulnerability" for the purpose of section 189 was authoritatively considered by this court in R (on the application of Pereira) v Camden LBC [1998] 31 HLR 317. The principal speech is given by Hobhouse LJ, and at the end of his judgment, he summarises the meaning of vulnerability as follows:
"The Council should consider such application afresh applying the statutory criterion: 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 Domenico.) 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."
The question for the housing authority is, therefore, whether the applicant "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." I refer to this below as "the Pereira test." Mr Lindsay Johnson of counsel, who appears for the appellant, emphasises that in Pereira this court considered a number of the earlier authorities such as Ortiz, which had treated vulnerability as composed of two separate elements which had to be considered separately. Mr Johnson submits, and I agree, Pereira established that the test for vulnerability is a single comprehensive test.
I also accept Mr Johnson's further submission that the application of the Pereira test requires a careful evaluation and weighing up of numerous factors affecting the particular applicant in question. This is made clear by another authority to which Mr Lindsay Johnson referred us, namely the decision of this court in Osmani v Camden LBC [2005] HLR 22. Mr Johnson took us to paragraph 38, which sets out a number of conclusions of Auld LJ, with whom Judge LJ and May LJ both agreed, about the Pereira test. The particular sub-paragraph relied on in this appeal was sub-paragraph (4), which reads as follows:
"(4) Pereira 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."
That passage makes it clear that, in determining whether a person is vulnerable, the authority must pay close attention to the particular circumstances of the individual. It is also bound to discharge its obligations by taking into account its own burden of homeless persons and finite resources. As Auld LJ says, its decision is likely to be highly judgmental.
Going back to the passage I have cited from Pereira, Hobhouse LJ uses the word "unaided" (seventh sentence), but it is now clearly established that the local authority can take into account assistance on which the applicant is able to call. This can be seen, for instance, from paragraph 41 of Osmani on which Mr Johnson also relied. The final sentence of paragraph 41 reads:
"As to the future, she [the review officer] 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."
As I read that sentence, the expression "thus aided" in item (4) refers to each of the elements of support being offered to the applicant in that case as described in sub-paragraphs (1), (2) and (3), not simply that in item (4) alone. But nothing turns on that point. I shall have to return to this sentence later in this judgment.
That then is the statutory and case law framework against which this appeal is brought. The judge gave a careful and comprehensive judgment. However, it is accepted that on this appeal this court is concerned with whether or not there were any errors of law in the decision of the review officer, and therefore, not intending any disrespect, it is not necessary for me to go into any detail into the reasoning of the judge. He came to the conclusion that the decision of the review officer was not flawed in law.
As to the background it is sufficient that I adopt with the judge's summary of the facts, which is contained in paragraph 2 of his judgment:
"The Appellant is 37 years of age. In his witness statement dated 26 th June 2012 which I have read, he describes himself as being 'a persistent criminal offender since I was 13/14 years old'. He has about 50 convictions altogether for what I am told are about 80 separate offences … He was last released from what had been repeated custodial sentences on 19 th April of this year having served a three month sentence for theft of a cashbox from a garden centre. He said that he stole this money to give to his brothers and friends who required some form of payment for providing him with temporary accommodation. He last had his own accommodation in 2005. He was evicted whilst he was on remand in custody for some offence. Since then, that is 2005, when not in prison and not able to avail himself of sofas of friends, brothers or his mother, he sleeps rough. So he has been, and is from time to time, street homeless. He describes himself as being 'a recovering heroin addict' and that it is this addiction which has been responsible for his criminal lifestyle. He is prescribed methadone for his drug addiction and his medical records, through which I have been taken very carefully but which I do not propose to recite in this judgment,...
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