R v London Borough of Camden ex parte Pereira
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,LORD JUSTICE WALLER,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 20 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0520-13 |
| Docket Number | No QBCOF 98/0032/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 1998 |
[1998] EWCA Civ J0520-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE TUCKER
Royal Courts of Justice
Strand
London WC2
Lord Justice Hobhouse
Lord Justice Waller
Lord Justice Robert Walker
No QBCOF 98/0032/4
MR G ZELIN (Instructed by Rosenbergs of London) appeared on behalf of the Appellant
MR K RUTLEDGE (Instructed by Camden Legal Services, London Borough of Camden) appeared on behalf of the Respondent
This appeal raises a question of the correct interpretation of the definition of a person having a priority need for accommodation under s.59(1) paragraph (c) of the Housing Act 1985. The equivalent provision appeared in earlier Housing Acts and is now to be found in s.189(1) of the Housing Act 1996. Section 59 provides:
"(1) The following have a priority need for accommodation-
(a) a pregnant woman or a person with whom a pregnant woman 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.
(2) The Secretary of State may by order made by statutory instrument-
(a) specify further descriptions of persons as having a priority need for accommodation, and
(b) amend or repeal any part of subsection (1).
(3) Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.
(4) No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament."
In practice paragraphs (a) (b) and (d) have not proved difficult to apply: each of those paragraphs can be applied by asking and answering a simple factual question. Paragraph (c) is different. It involves a question of judgment and causation. It is necessary to assess whether a person is "vulnerable". It is also necessary to consider whether such vulnerability is as a result of one of the four identified causes or some other "special reason". Whether one approaches the question of construction by looking at the language of the paragraph as a composite whole (see the discussion in ex parte Kihara 29 HLR 147) or by considering the question of vulnerability and cause separately, the problems of interpretation remain.
These problems are not made easier by the statutory context. Within s.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.
In the broader statutory scheme of Part III of the 1985 Act (and Part VII of the 1996 Act), the question of priority need arises at the initial stage of the categorisation of an applicant for housing. It arises separately from the question whether a person is homeless: it assumes that the fact that he is homeless has already been established. Also, it arises before, and potentially independently of, deciding how his need for housing is to be met and how the obligation of the housing authority is to be discharged: see ss.65 and 69 and the associated sections. Thus there are a number of alternative ways in which the housing authority may discharge its obligations and it is in this context in particular that the concept of "suitable" accommodation is used. So, here again, one of the elements which might be thought important to the vulnerability of a person is the subject of specific statutory provision which only becomes applicable after the person has been assessed as a qualifying person in priority need.
A further consideration is the general purpose of the legislative scheme. In O'Rourke v Camden LBC [1990] 3 WLR 86 at p.90, Lord Hoffmann said:
"…. the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest; because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services."
In Ex parte Puhlhofer [1986] AC 484 at p.517, Lord Brightman said:
"It is an Act to assist persons who are homeless, not an Act to provide them with homes. … It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there probably are bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand."
(See also ex parte Awua [1996] 1 AC 55 at 72 and ex parte Kihara 29 HLR at 155.) It, thus, has to be borne in mind that any priority system involves striking a balance between the needs of one group of homeless persons and another. To grant priority to one person involves the deferment of another.
S.71 of the 1985 Act requires the housing authority to have regard, in the exercise of their functions, to the guidance given by the Secretary of State. Over the years various editions of the Guide have been issued. For the period with which we are concerned in the present case the relevant edition is the revised third. In paragraph 6.8, under the heading "Is The Applicant Vulnerable?", it says:
"The assessment a homelessness officer must make when deciding whether an applicant is vulnerable may be a complex one. The critical test when assessing vulnerability must be whether the applicant is able to fend for him/herself so that s/he will suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects."
In the context of old age, the guidance directs the authority to consider the extent to which the age of the applicant makes it hard for him to fend for himself (paragraph 6.9). In relation to mental illness or handicap or physical disability, the guidance states that the authority should consider the "relationship between the illness or handicap and the individual's housing difficulties" (paragraph 6.10). In relation to "victims of violence or abuse or sexual and/or racial harassment, the guidance demonstrates the breadth of the factors to be taken into account—"authorities should secure wherever possible that accommodation is available for men and women without children who have suffered violence at home or are at risk of further violence if they return home".
Paragraph (c) was used in s.2(1) of the Housing (Homeless Persons) Act 1977 as part of the definition of priority need. In 1982 the Court of Appeal had to consider an application for judicial review by a person who was an alcoholic and had in 1980 been hit by a motor vehicle and suffered a severe head injury. R v Waveney Council, ex parte Bowers [1983] 1 QB 238. Mr Bowers had claimed that he had a priority need. It was not considered that he was entitled to rely upon his own alcoholism but this was not an answer in his case because he had also suffered the brain injury. The Court of Appeal reserved its judgment and the judgment of the Court was delivered by Waller LJ. It was clearly intended to be definitive and has since been used in the Guide. Waller LJ said (at pp. 244-5):
"The question we have to consider is whether or not the applicant is vulnerable and secondly whether the vulnerability is as a result of old age, mental illness or handicap or physical or other special reason. Dealing first with the meaning of "vulnerable", vulnerable literally means "may be wounded" or "susceptible of injury". (See the Concise Oxford Dictionary, 6th edition (1976), p.1305.) In our opinion, however, vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects."
He referred to the then current edition of the Guide and the request that authorities should "take a wide and flexible view of what constitutes substantial disability, recognising that this will depend on individual circumstances". In commenting upon the position of Mr Bowers, he said:
"There can be no question here but that the applicant is vulnerable. The Judge accepted that there was a degree of vulnerability. Furthermore it is reasonably clear that the degree of vulnerability increased as a result of serious accident with severe brain injury in the early summer of 1980. Before that, although he had a drink problem, the applicant was able to cope, living in lodgings. Since the accident nobody will give him lodgings and all those who have considered his case take the view that he needs either "support" or "help" or "a degree of shelter" or...
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