ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HHJ Zucker
4WT12663
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE TUCKEY
LORD JUSTICE JONATHAN PARKER
and
LADY JUSTICE ARDEN
Between:
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KAMEL BELLOUTI |
Appellant |
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- and - |
|
|
LONDON BOROUGH OF LAMBETH |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Iain Colville (instructed by Messrs Flack & Co) for the Appellant
Rory Clarke (instructed by DHM Stallard Solicitors) for the Respondent
Judgment
Lord Justice Jonathan Parker :
INTRODUCTION
This is an appeal by Mr Kamel Bellouti, the claimant in the proceedings, from an order made by HHJ Zucker in the Central London County Court on 22 November 2004 dismissing his appeal from the decision of London Borough of Wandsworth (“the Council”) that he was not a person having a priority need for accommodation within the meaning of section 189(1) of the Housing Act 1996 (as amended) (“the 1996 Act”).
Section 189(1) lists four categories of persons as having a priority need for accommodation. Mr Bellouti contends that he falls within category (c), which is in the following terms (so far as material):
“a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason ….”
Mr Bellouti’s contention was rejected by the Council by letter dated 11 March 2004. He sought a review, but by letter dated 14 July 2004 the Council confirmed its original decision.
Permission for a second appeal was granted by Mummery LJ on the papers on 13 December 2004.
THE BACKGROUND FACTS
Mr Bellouti is an Algerian national. Prior to his arrival in the United Kingdom in May 1995 he had been a police inspector in Algeria. On arrival in the United Kingdom, he sought political asylum. Initially, he was accommodated by the Asylum Service, but in November 1995 he moved to a room at 213 Mitcham Lane, London SW16. He remained there until 10 September 2003, when he was evicted pursuant to a possession order made on 5 August 2003. While at Mitcham Lane, he underwent treatment for a back complaint at The Royal National Orthopaedic Hospital Trust (“the Royal National”).
On 13 August 2003 (that is to say shortly after the making of the possession order) Mr Bellouti applied to The London Borough of Wandsworth (“the Council”) to be treated as having a priority need for accommodation. In support of his application he completed a standard Medical Assessment Form provided by the Council’s Housing Department (“the Department”). At the head of the form, notice is given to the applicant that the Council’s Independent Medical Adviser will assess the information which is provided.
In completing the form, Mr Bellouti identified Dr Sultan, of 226 Mitcham Road, as his doctor and the Royal National as his hospital consultant. Against “Details of medical condition or disability” he wrote:
“- Chronic backache – Disc
- Cramps from neck to lower back
- Rheumatism in my lower parts of my legs
- Left hand injured
- Right eye reduced eyesight
- Depression”
In answer to the question why he had attended hospital and whether as an in-patient or as an out-patient, he wrote that the reason for his attendance at hospital was lower back pain, and that he had attended hospital as an out-patient. Asked whether any further treatment was planned, he responded that he did not know.
By letter dated 18 August 2003, Dr Sultan wrote to the Department as follows:
“This gentleman has chronic backache and arthritis. He is unable to lift anything and has been referred to the [Royal National].
His ankles are swollen and painful. He cannot walk more than less than 100 meters.
He also suffers from anxiety with depression. He cannot sleep at night and nightmares makes him awake.
He is on the following medication:
[Details of his medication are then set out]
He is finding it difficult to cope with all these things at the present time.
I shall be grateful if you would urgently re-house him in good accommodation, suitable for his current and long term medical needs. Otherwise his problems will only become worse.”
The Department referred Mr Bellouti’s completed assessment form, together with Dr Sultan’s letter, to the Council’s Independent Medical Adviser, Dr John Keen, for his comments. On 22 August 2002 Dr Keen responded by completing a standard form of questionnaire. In answer to the question “Does the applicant’s medical condition restrict/impede him/her from seeking or maintaining his/her own accommodation?”, Dr Keen circled: “No”. Asked to state his reasons, he wrote:
“His back problem is not considered significant or severe, nor such as to impede reasonable mobility. There are no other relevant medical issues.”
In answer to the question “Is the applicant able to live in independent accommodation?”, Dr Keen circled “Yes”, adding: “No housing recommendation”.
On 18 September 2003 Dr Sultan wrote again to the Department. Under the heading “Diagnosis” Dr Sultan repeated what he had said in his first letter, but added a further paragraph, as follows:
“Ms Rose Riley a psychic [sic] consultant has made a regular consultations sessions for him in the surgery every week since August 2003.”
The letter went on to repeat the details of Mr Bellouti’s medication.
The Department referred Dr Sultan’s further letter to Dr Keen, inviting him to reconsider his views “in the light of additional information”. On 7 October 2003 Dr Keen completed another questionnaire in the same form as the first. Commenting on Dr Sultan’s letter, he wrote:
“Dr Sultan’s latest letter is essentially a cut and paste of his letter a month before. It adds no materially new information, but confirms mobility on the flat is reasonable. He is on no treatment for arthritis. My previous advice remains applicable.”
On 9 October 2003 Dr Sultan wrote again to the Department. After referring once again to Mr Bellouti’s “chronic backache and arthritis”, to his swollen ankles, and to his “anxiety and depression”, the letter continued:
Mr Kamel is in bad shape and cannot cope with the current accommodation. His health situation is deteriorating day after day.
I shall be grateful if you would urgently re-house him in good accommodation, suitable for his current and long term medical needs. Otherwise his problems will only become worse and has to be admitted to hospital”
The Department duly referred Dr Sultan’s third letter to Dr Keen. By his response dated 14 October 2003 Dr Keen commented:
“Dr Sultan’s third letter affirms [sic] my advice of 7 October 2003 and I continue to make no housing recommendations.”
On 4 November 2003 the Department wrote to the Royal National asking for a report on Mr Bellouti’s back condition. Despite an assurance by the Royal National that a report would in due course be provided, in the event none was forthcoming.
On 15 January 2004 Dr Rose Riley, a chartered psychologist practising at the same address as Dr Sultan, provided a written report relating to Mr Bellouti, which was forwarded to the Department by Flack & Co, Mr Bellouti’s solicitors. Ms Riley’s report records that on 21 August 2003 Mr Bellouti was referred to her for psychological counselling regarding symptoms of depression which he was experiencing; and that while in Algeria Mr Bellouti had suffered injuries to his neck, lower back and left hand as a result of a car accident. The report includes the following:
“Mr Bellouti also advised that he is required to do exercises for his back and because of the limited space in his room he is unable to complete the exercises without lifting the bed and propping it against the wall which is entirely unsatisfactory given his back injuries.
He has recently been diagnosed with diabetes and as a consequence he has been put on a special diet and if he is late in from college he is unable to prepare his supper due to the kitchen being locked between the hours of 9.00 pm and 7.00 am.
Mr Bellouti scored 30 in the Beck Depression Inventory and falls into the range of severe depression (range 29-63). He also reports that he has suicidal thoughts but he denied any plans to carry out such an action and the risk of harm to others seems remote.
It appears that his housing problems have added to his depression, he is unable to sleep and finds concentrating difficult and if more suitable accommodation was available his mental health and his physical health would improve considerably.
In the light of the above information I would be grateful if you could reassess Bellouti’s housing needs.”
The Department duly referred Ms Riley’s report to Dr Keen for his comments. On 10 February 2004 Dr Keen responded as follows:
“His depression is being treated at low level and is not such as to materially impede reasonable function. No housing recommendations.”
As noted earlier, the Council’s decision letter is dated 11 March 2004. It is signed by Ms Maureen Vallely, of the Council’s Homeless Person’s Unit. The material parts of the decision letter are in the following terms:
“In reaching my decision I have noted the following facts. You are 43 years old. You have described yourself as unhealthy, suffering from chronic back pain and Arthritis. You also suffer from Anxiety and depression. Although you have been prescribed medication by your GP the Council’s Medical Advisor is of the opinion that your Mental illness is being treated at low level and is therefore not considered significant or severe. You are not receiving treatment for Arthritis. As such, no housing recommendations have been made.
….
You are presently aged 43 years and in view of this, I am satisfied that you cannot reasonably be described as being vulnerable. Neither do I think, taking into account your reasonable health, that you can be described as suffering from any physical disability.
Taking into account the medical information available to me, and this having been assessed by the Council’s Independent Medical Advisor, I am not persuaded that you, when homeless, are any less able to fend for yourself than the ordinary homeless person. I am satisfied that it cannot be so serious as to expose you to any greater risk of injury or detriment than the ordinary homeless person.”
On 7 April 2004 Flack & Co wrote to the Council requesting a review of its decision, pursuant to section 202 of the 1996 Act.
On 14 April 2004 Dr Sultan wrote to Flack & Co, who duly forwarded the letter to the Council. The material part of the letter reads as follows:
“1. I write to confirm that Mr Bellouti suffers from severe mental depression with suicidal thoughts. He is currently on Amitriptyline, Proporanolol and Temazepam. He is also having weekly therapy sessions with a clinical psychiatrist to keep him sane. If he is evicted and made homeless he is bound to commit suicide, for which the council will be squarely responsible.
2. Mr Bellouti has severe problems with his spine and this has made him less mobile and less active. He has been given Diclofenac, Co-Dyramol and Brufen but with minimal relief. If he is forced to live rough on the streets he will probably need to be hospitalized.
3. Mr Bellouti suffers from diabetes. His anxiety and depression have made his blood glucose level fluctuate. His diabetes and anxiety are the cause of his chest pain. His diabetes will become complicated and he may need to be hospitalized if he is not provided with a secure and comfortable environment.
It is a requirement by law that a person suffering from diabetes, depression and a spinal problem needs to be carefully considered both by the social services and the council before they could even think of disturbing his housing needs.
I finally write to conclude that if this man is evicted, potentially the council will become liable, not only for his suicide, but also for the deterioration of his physical health as he is hardly able to walk 100 metres because of his arthritis and spinal problems.”
On 15 April 2004 Flack & Co wrote to Mr Anthony Adelaja, the Council’s Reviews Manager, asking for a complete copy of Mr Bellouti’s file, “including all medical evidence”. On the following day, Flack & Co wrote a long letter to Mr Adelaja setting out Mr Bellouti’s case for a review, and enclosing a copy of Dr Sultan’s letter dated 14 April 2004. Flack & Co expressly reserved the right to submit further representations on receipt of a copy of Mr Beloutti’s file.
In essence, Mr Bellouti’s case, as set out in Flack & Co’s letter, was that the Council had failed to make adequate and reasonable enquiries before reaching its decision, and in particular that the Council had not adequately questioned Mr Bellouti about his physical and mental condition, and that Mr Bellouti had not been given an opportunity to respond to “adverse findings” made by Dr Keen in his capacity as the Council’s Independent Medical Adviser. It was also contended that the decision letter did not contain an adequate statement of the Council’s reasons for its decision. Finally, it was contended that in reaching its decision the Council had misdirected itself as to the correct test to be applied in considering whether an applicant has a priority need for accommodation, as formulated by the Court of Appeal in R v. Camden LBC (ex p. Pereira) (1998) HLR 317 (“Pereira”).
On 18 April 2004 Mr Adelaja wrote to Dr Sultan referring to Dr Sultan’s letter to Flack & Co dated 14 April 2004 and asking him whether he was able to substantiate his claims as to the probability of suicidal ideation by identifying any specific incidents. Mr Adelaja also asked Dr Sultan what treatment Mr Bellouti was receiving for his diabetes, and where he was receiving therapy sessions.
On 29 April 2004, having received no response from Dr Sultan, Mr Adelaja sent him a reminder. That letter too met with no response from Dr Sultan, so on 18 June 2004 Mr Adelaja sent Dr Sultan a further reminder. This elicited a response from Dr Sultan dated 26 June 2004. The material part of Dr Sultan’s letter reads as follows:
“With regards to queries that you raised:
1. When a doctor says someone is depressed and suicidal he is expressing his diagnosis based on examination. When I say he is depressed and has suicidal ideas I mean he is liable to commit suicide and is highly vulnerable. He is taking Amitriptyline, Propranolol and Temazepam for treatment.
Do you want him to commit suicide before you believe that statement? Even in a court of law the judge accepts my expert witness opinion without adulteration or hesitation, and you are not beyond the courts.
As regards Mr Bellouti’s therapy sessions he is seen by me and our clinical psychologist Rose Riley.
He was diagnosed with type 2 diabetes mellitus in October 2003, which at present is diet controlled.”
In the meantime, on 2 June 2004 Flack & Co wrote to Mr Adelaja repeating their request for a copy of Mr Bellouti’s file. Mr Adelaja responded the following day apologising for the delay in providing it, and confirming that it would be provided within the next 7 days. He also informed Flack & Co that in view of the delay which had occurred the Council had agreed to extend the time for the carrying out of the review to 30 June 2004. The fact that a copy of Mr Bellouti’s file was duly provided is clear from Flack & Co’s next letter, in which they made additional representations based on the contents of the file.
In their letter, Flack & Co contended that the Council failed to raise with Dr Keen “the issue of Mr Bellouti’s diabetic condition”. The letter continued:
“Even though Wandsworth sought advice from Dr Keen regarding Mr Bellouti’s spinal problems and depressive illness, we do not consider that it is reasonable for Wandsworth to rely upon the adverse recommendations of Dr Keen regarding these two conditions. This is because due to Wandsworth’s lack of inquires with Mr Bellouti’s GP it would appear that the information Wandsworth provided to Dr Keen was not a full and up to date account of the nature, symptoms and extent of these conditions in order to consider the issue of vulnerability. Had such inquires been carried out then we consider that Dr Keen would not have considered that Mr Bellouti’s “back problems is not considered significant or severe nor such as to impede reasonable mobility” (Medical Assessment Sheet dated 27.08.03) and that “his depression is being treated at a low level and is not such as to materially impede reasonable function” (Medical Assessment Sheet dated 10.02.04). This is because Mr Bellouti’s GP has stated in his report dated 14 April 2004 that Mr Bellouti suffers from severe mental depression with suicidal thoughts and that he is having weekly therapy sessions with a clinical psychiatrist. We consider that given the adverse symptoms of Mr Bellouti’s illness and treatment and medication that he is receiving, it would not be reasonable for Wandsworth to rely upon the adverse recommendation of Dr Keen when Mr Bellouti’s GP considers that it is highly likely that he would commit suicide if he was to be made homeless. Furthermore, due to the deterioration in Mr Bellouti’s physical health Mr Bellouti’s GP concludes that Mr Bellouti cannot walk more than 100 meters because of his arthritis and spinal problems. Therefore, we consider that Wandsworth cannot rely upon the findings of Dr Keen as he considers that Mr Bellouti’s back problem does not impede reasonable mobility.”
Finally, complaint was made that Mr Bellouti had never been assessed by Dr Keen; and that he had not been provided with an opportunity to respond to Dr Keen’s “adverse findings”. It was contended that had Mr Bellouti been afforded such an opportunity the Council would have realised “the full extent of Mr Bellouti’s medical conditions and the adverse [effect] that physical homelessness would have upon him”.
On 6 July 2004 the Council once again asked the Royal National for a report on Mr Bellouti’s back condition, but, as noted earlier, with no result.
In an undated report to the Council (which he must have written between 26 June 2004 and 14 July 2004), Dr Keen referred to Dr Sultan’s letters and to Ms Riley’s report and to the advice which he (Dr Keen) had given previously. The report continues:
“The medical issues are as follows:
DEPRESSION/SUICDAL THOUGHTS
The applicant suffers from depression according to his GP, but this has been treated at low level with amitriptyline alone, a minor and outdated antidepressant drug which has largely been superseded in modern clinical practice. He is also being treated with counselling from a psychologist (described wholly erroneously by Dr Sultan as a “psychiatrist” on 14 Apr 04 and as a “psychic consultant” on 18 Sep 03).
His condition has not been such as to necessitate referral to a psychiatric hospital or specialist psychiatrist, nor to be admitted to a psychiatric unit, and his condition is clearly not psychotic or severe in nature, as this would have necessitated greater or multiple drug treatment or psychiatric referral.
I note Dr Sultan’s assertion that he is at risk of suicide particularly if made homeless, but this is not borne out by the reports from the psychologist who is in regular therapeutic contact with the applicant, who says:
He also reports that he has suicidal thoughts but he denies any plans to carry out such an action.
I also consider the risk of self-harm low given Dr Sultan’s decision to prescribe him with Temazepam, a well known sleeping drug which is toxic in overdose and responsible for a significant proportion of all pharmacological self harm throughout the UK.
DIABETES
The applicant’s diabetes has not necessitated hospital referral nor drug treatment at any time and there is nothing to suggest it is unstable or severe in nature. It is not considered significant nor related to housing.
BACK PAIN
The applicant has suffered from back pain; although this is described by Dr Sultan as “arthritis”, this is not borne out by the reports from the Royal National Orthopaedic Hospital at Stanmore which make no such assertion, and there is no confirmed substantive underlying diagnosis.
The applicant has completed both short and medium term rehabilitation programmes and was recommended by his consultant Mr Sullivan to continue with an exercise regime at a local gym. His mobility on the flat is reasonable, and his overall condition is clearly not such as to significantly impede his reasonable mobility. Arguably it is in his interests to mobilise as much as possible.
OTHER MEDICAL ISSUES
The applicant has in the past been prescribed other medications which are minor in nature – Loratadine, Nasonex and Sodium Cromoglycate used for hay fever/allergies; Trimotheprim used for urinary infection; and Hyoscine and Propanolol, both minor drugs with multiple uses. None of these indicate any condition of any severity or relevance to housing.
In summary, none of the above medical issues, either singly or as a whole, are considered such as to significantly impede reasonable function and I continue to make no housing recommendations.”
By his review decision letter to Mr Bellouti dated 14 July 2004, Mr Adelaja upheld the Council’s earlier decision that Mr Bellouti was not in priority need for accommodation within the meaning of the legislation. He gave his reasons as follows:
“There are four separate circumstances in which a person may be in priority need but I am satisfied that three of these (pregnant women, persons with whom dependant children reside or who might reasonably be expected to reside with and persons whose homelessness resulted as an emergency, such as fire or flood) do not apply to your circumstances.
As you are aware, your current homelessness arose as a result of your eviction from your home. Hence you did not cease to occupy accommodation as a result of violence.
You have not notified us of the existence of a dependant child for the purposes of this application. I note that your application to the Council was made without dependants. This was confirmed in an interview at this office on 20th August 2003 and 26th August 2003.
Further, I have considered whether you are vulnerable as a result of an institutionalised background or remand. You have not specified any involvement with the Criminal Justice System in relation to previous arrests or a custodial sentence. Hence this category is not relevant to you.
Additionally you have not served in the armed forces or being in foster care.
The one remaining category of priory need relates to whether you can be considered to be a vulnerable person as a result of old age, mental illness, handicap, physical disability or other special reason. The circumstances of your case are such that this category is relevant and I have therefore carefully considered whether it applies to your circumstances.
I note from Rv. LB Camden ex p Pereira (May 1998) that the test case which should be applied when assessing vulnerability under Section 192(2) of the above Act is whether the applicant is, when homeless, less able to fend for himself than his/her peers so that injury detriment to him/her will result when a less vulnerable person would be able to cope without harmful effects.
In my review of your case, I have firstly noted that you are now aged 43 years old.
You have made your own housing arrangements to date, prior to this application.
You are also capable of seeking and understanding any advice given by and Advice agency or Legal services organisation.
You have specified that you have medical problems for consideration in your application.
Your medical problems as contained in your hospital reports, information from your GP, Dr Sultan, and your Psychologist have been referred to this council’s Medical Adviser for a recommendation. These letters and reports confirm that you have been diagnosed as suffering from a depressive illness, a back problem, and type 2 mellitus diabetes. The recommendation from the Medical Adviser confirms that such treatment is at a low level. You have been referred to a Psychologist and to the Royal Orthopaedic Hospital for a physiotherapy assessment and treatment.
I note your GP’s comments in his letter dated 14th April 2004 to your solicitors that you suffer from severe mental depression with suicidal thoughts. However, this has been treated at low level with ‘amitriptyline’ alone, which is a minor and outdated antidepressant drug and has been largely superseded in modern clinical practice. He also states that you are being treated by a “psychiatrist”. I have confirmed that you are receiving counselling from a psychologist, but that you have neither been referred to a psychiatric hospital, nor specialist psychiatrist, nor admitted to a psychiatric unit. Therefore, your condition is not considered to be psychotic or severe in nature, as this would have necessitated greater or multiple drug treatment or psychiatric referral.
Additionally, I note Dr Sultan’s assertion in his letter dated 14th April 2004, that you would be “bound to commit suicide, for which the Council will be squarely responsible”, should you become homeless. I have asked Dr Sultan to give the basis for making such assertions. In his response dated 26th June 2004 he reports merely “When I say he is depressed and suicidal ideas I mean he is liable to commit suicide and is highly vulnerable”, without giving reasons for his assessment. Dr Sultan has not been able to provide any medical evidence to back his highly speculative suggestion of suicide or that such attempts have been made in the past to suggest any pattern of behaviour.
His suggestion of suicidal ideation is not borne out by the reports from the psychologist who is in regular therapeutic contact with you. In fact the psychologist reports that you have claimed to have suicidal thoughts, but that you deny any plans to carry out such action.
Furthermore, I note Dr Sultan’s decision to prescribe you with ‘temazepam’, which is a well known sleeping drug, which is toxic in overdose and responsible for a significant proportion of all pharmacological self-harm throughout the UK. Hence, the risk of self-harm is considered to be relatively low. It is reasonable to argue that your GP should not prescribe such a potent medication (if taken in overdose) if he really believes that you are likely to carry out your suicidal thoughts. Whilst there is no reason to doubt that your GP is capable and has your best interest at heart, I can find no reason to support his speculation of imminent gloom and suicide if you were to be made homeless.
With regards to your physical health problems, I note that your diabetes has not necessitated hospital referral, or any drug treatment at any time, and there is nothing to suggest it is unstable or severe in nature. Therefore, it is not considered significant, or related to housing. I must stress that that there is no suggestion that you are insulin dependent.
With regards to your back problem, I note that Dr Sultan describes this as arthritis. However, this is not borne out by the reports from the Royal National Orthopaedic Hospital at Stanmore, which makes no such assertion, and there is no confirmed substantive underlying diagnosis. Further, you have completed both short and medium term rehabilitation programmes and was recommended, by your consultant, to continue with an exercise regime at a local gym. I note that you are now attending the integrated Back Unit at the Royal National Orthopaedic Hospital in Bolsover Street.
Your mobility on a flat surface is reasonable, as noted by officers of this Council during interview sessions and your overall condition is not such as to significantly impede your reasonable mobility. There is no reason to believe that you are incapable of travelling on public or private transport in any efforts to secure accommodation for yourself. Arguably, it is your interest to mobilise as much as possible.
I also note that in the past you have been prescribed other medications, which are minor in nature. This includes ‘Loratadine’, Nasonex’, and ‘Sodium Cromoglycate’, and are used for hay fever/allergies. You have also been prescribed ‘Trimotheprim’, used for urinary infection; and ‘Hyoscine’ and ‘Propanolol’, both minor drugs with multiple uses. None of these indicate any condition of any severity or relevance to housing.
There is no information to confirm that you have any speech, sight or thought related problems. I note that you are an ex-asylum seeker, who was granted refugee status on 19th January 2000. All communication with you in processing your application for housing assistance was conducted in English without the services of an interpreter. It is confirmed that you have lived in the UK for over 8 years.
All information available to me would suggest that you are capable of independent living, managing you own accommodation and hygiene as well as living and coping independently.
I also note that you have coped very well in managing your own affairs. You are currently living independently without support. It is also noted that you have managed to seek and maintain your own accommodation in the private sector from 1995 until your eviction in August 2003. Hence it would be reasonable to deduce that you have shown that you are capable of fending for your self when homeless as described in the Pereira test.
I can also confirm that the decision that you are not in priority need is one that I have taken in my role as the Reviews manager. Whilst this decision is without prejudice, it does take into account the balance of facts and information available to me from your application and information you have supplied.
Vulnerability for the purpose of this application is a matter of law and governed by the test case mentioned above. It is not a matter of your GP’s opinion or based on the assessments made by your representatives. However due regard has been given to this opinion in consideration of your ability to fend for yourself.
There is no information to suggest that your depression was of a psychotic or severe nature such as to affect normal function.
There is no new medical information made available to this council in respect of any other disabilities.
I am satisfied that reasonable and relevant enquiries have been carried out in relation to this application.
I have considered how you may possibly be vulnerable as a result of being homeless, but remain satisfied that you are reasonably physically fit and capable of finding and maintaining accommodation as well as fending for your self. You will be given as much assistance in this regard by this Council.
I have also considered whether you could be said to be vulnerable as a result of another special reason and have taken into account your social and medical circumstances in combination with each other. These factors include your medical problems, your current unsettled living conditions and the fact that you are an ex-asylum seeker, who was granted refugee status in January 2000. However, taking into account your age (you are currently aged approximately 43 years), social circumstances, medical factors and unsettled history, I am not satisfied that you are a vulnerable person for the purpose of this application.
I have applied all of the above facts, together with your current social circumstances, to the question of vulnerability, in line with the established interpretation of that concept within the meaning of the above-named legislation. I am satisfied that you are not at greater risk of injury or detriment in the situation of homelessness in comparison with other and assumed average homeless people and, as an indication of vulnerability. For these reasons I have concluded that you are not vulnerable within Section 189 of the above-named legislation.
I am also satisfied that you cannot be described as a person under the age of 21 years old who had been subject to a care order, accommodated or fostered after the age of 16 years but while still under 18 years old.
In summary, and on balance, I can find no reason to agree with you that the decision under review was unreasonable. I have therefore upheld the earlier decision, which means that the Council has no duty to provide you with accommodation.
I confirm that in reaching this decision I have had regard to the Code of Guidance for Local Authorities, issued by the Department of the Office of the Deputy Prime Minister.
The decision set out in this letter represents the Council’s decision on review and, under the 1996 Act concludes all internal review processes. In reaching this decision I have found no irregularity, defect or deficiency in the decision-making process adopted by the Council and in the absence of a material change in your circumstances, I regret to inform you that the Council will remain satisfied that you do not have a priority need for accommodation.”
To complete the factual history, I should refer to two further letters from Dr Sultan to Flack & Co. On 27 July 2004 Dr Sultan informed Flack & Co that Mr Bellouti had been referred to a consultant physician for “diabetes management and complications”; to a consultant psychiatrist for “depression and suicidal intent”; and to an orthopaedic surgeon at the Royal National for “neuropathy and arthropathy”. The letter does not disclose when these referrals were made, but we were informed in the course of the hearing of the appeal that they were made on 24 July 2004 (that is to say after the decision on the review).
The letter concluded:
“His health condition is deteriorating and becoming worse.”
Finally, by letter dated 29 July 2004 Dr Sultan wrote to Flack & Co as follows:
“I can confirm that I have referred Mr Kamel Bellouti to see a psychiatrist.
Mr Bellouti is depressed. His concentration is poor. He has a loss of libido and a loss of interest in life. He is lethargic and sleepless. He has suicidal ideas and thinks of ending his life. He has no energy. He breaks down weeping. He has partial insight with suicidal ideas.
I have also referred Mr Bellouti to The Royal National Orthopaedic Hospital because of the severe pain in his neck and back which is affecting his movement.
Lastly I also referred Mr Bellouti to St George’s Hospital because of his diabetes. He is developing Charcot’s joints, and has peripheral neuropathic symptoms and signs.”
By his order dated 22 November 2004 HHJ Zucker dismissed Mr Bellouti’s appeal against the review decision.
THE JUDGE’S JUDGMENT
I can now turn to the judge’s judgment.
After setting out the factual history, the judge turned to the arguments addressed to him by Mr Iain Colville for Mr Bellouti and Mr Rory Clarke for the Council, saying this (in paragraphs 20 to 27 of the judgment):
“20. Mr Colville argues that Mr Adelaja wrongly took into account the initial report obtained from Dr Keen because the correct question was not asked, and even if it had been, Mr Adelaja gave no reason for preferring Dr Keen’s opinion to that of Dr Sultan. I have already commented on the first part of that submission. Mr Adelaja was clearly entitled to take into account Dr Keen’s assessment of Mr Bellouti’s mental and physical condition, whatever the actual question which drew his answers. As to the second part of that submission, the review letter clearly gives detailed consideration to all the medical reports that had been submitted and throughout states Mr Adelaja’s assessment of Mr Bellouti’s physical and mental condition. He was, of course, entitled to rely on the grounds Dr Keen put forward for differing from Dr Sultan if he considered that those grounds were cogent, as plainly he did.
21. Mr Colville further submits that Mr Adelaja considered each aspect of Mr Bellouti’s medical condition separately, but nowhere considered the overall effect of the individual matters of which he complained. That is to overlook not only the fact that Mr Adelaja gave consideration to every matter advanced, but also the express statement, which I have already quoted:
“I have applied all of the above facts, together with your current social circumstances, to the question of vulnerability, in line with the established interpretation of that concept within the meaning of the above-named legislation.”
22. Mr Colville further submits that Mr Adelaja should have sought further reports before reaching his conclusion. Wandsworth, he points out, obviously thought it was relevant to obtain a report from the Royal Hospital but never did so. In the absence of a report from the Royal Hospital, the letters that had been sent by it gave a clear indication of the reason why Mr Bellouti had been treated there, and what the follow up had been. In R v Royal Borough of Kensington & Chelsea ex parte Bayani(1990) 22 HLR 4066 it was held by the Court of Appeal:
“(1) the duty to make enquires is to make such inquires as are necessary to satisfy the authority. As it is the authority which has to be satisfied, the scope and scale of the inquires is primarily at least a matter for them. However, the inquires must be those which are necessary to enable the authority to make a decision.
(2) if the court is to intervene by way of judicial review, it must be on the basis that the inquiries have not reached the required standard in the circumstances of the case. The appropriate test in a case of possible intentional homelessness is whether a reasonable authority having made the inquires and only the inquires which the authority in question in fact made could have been satisfied that the applicant was homeless intentionally. If a reasonable authority could not have been so satisfied, the necessary inquires will not have been made.”
23. Not having received the requested report from the Royal National, it was for the review officer to decide whether he was in a position to make a fair and reasonable assessment without it. He clearly took the view that he was. I can see no ground for holding that he acted unreasonably in coming to that conclusion. It is to be noted that Mr Bellouti himself, or through his solicitors, could have obtained a report from the Royal Hospital either for the original decision or for the review or on this appeal. In the absence of such a report, there is no ground for me to conclude that even if a report had been obtained, it would have contained any material that would have made any difference to the outcome.
24. Mr Colville also submits that Dr Keen’s last report raised additional matters upon which Mr Bellouti and/or Dr Sultan should have been asked to comment. The toing and froing between Dr Sultan and Dr Keen had to stop somewhere. Dr Sultan had written five letters to Wandsworth. He had fully set out his assessment of Mr Bellouti. Wandsworth had asked Dr Keen to comment on all of them. Again, it was for the review officer to determine whether he had sufficient material to make a fair and reasonable assessment. There are no grounds for holding that he acted unreasonably in acting upon the material he in fact had before him, or for concluding that even if further comments had been requested from either Mr Bellouti or Dr Sultan, anything material would have resulted.
25. Finally, I deal with Mr Colville’s submission that Mr Adelaja wrongly applied the test in Pereira. He points firstly to that part of the review letter where Mr Adelaja states:
“I note from R v London Borough of Camden ex parte Pereira (May 1998) that the test which should be applied when it is assessing vulnerability under Section 192(2) of the above Act is whether the applicant is, when homeless, less able to fend for himself than his/her peers so that injury detriment to him/her will result when a less vulnerable person would be able to cope without harmful effects.”
Mr Colville submits that by using the word “peers”, Mr Adelaja is referring to people who were not homeless, because Mr Bellouti was not homeless at the time. That is, in my judgment, to misinterpret what Mr Adelaja wrote. It ignores the words “the applicant is…when homeless”, that clearly shows that Mr Adelaja is treating as his peers other homeless people. Mr Colville also points to the words in Mr Adelaja’s conclusion:
“I am satisfied that you are not at greater risk of injury or detriment in the situation of homelessness in comparison with other and assumed average homeless people, and, as an indication of vulnerability”.
He submits that that is a misapplication of Pereira where the risk is a risk of being less able to fend for one’s self so that injury or detriment will result, not a greater risk of injury or detriment.
I am not convinced that the effect of the test in Pereira is not that there will be a greater risk of injury or detriment; that after all is the result of being less able to fend for one’s self. It is, however, to be noted that Mr Adelaja had correctly set out the Pereira test earlier on in the review letter. The ultimate issue for Mr Adelaja was whether in accordance with section 189(1)(c) of the 1996 Act Mr Bellouti was vulnerable as a result of mental illness or handicap, or physical disability. His conclusion was that he was not vulnerable within Section 189. It may be that his paraphrase of Pereira in the part of his review letter (which I have quoted) could be said not to be wholly accurate, but the whole tenor of his review was to accept the assessment of Dr Keen and not that of Dr Sultan. His conclusion that Mr Bellouti was not vulnerable inevitably followed.
I am satisfied that Mr Adelaja’s conclusion would have been the same even if his paraphrase of the test in Pereira could have been the subject of criticism. This decision on review was not, in my judgment, Wednesbury unreasonable. There were no procedural errors. I can detect no error in law. I bear in mind the high hurdle that an appellant has to surmount before this court can on appeal set aside the review decision, and the dicta of Lord Brightman R v Hillingdon London Borough Council ex parte Pulhofer [1986] AC 484, 518. In the result I can see no ground in law for quashing the review decision. Indeed on the facts of this case, as I have set them out above, had my discretion been called into play, I would have exercised it to decline to quash the review decision. It stands.”
OSMANI v. LONDON BOROUGH OF CAMDEN [2004] EWCA Civ 1706 (“Osmani”)
On 16 December 2004 (that is to say, shortly after the judge had delivered judgment in the instant case) the Court of Appeal delivered judgment in Osmani.
The leading judgment in Osmani was given by Auld LJ (with whom Judge and May LJJ agreed). In the course of his judgment, Auld LJ, after referring to the judgment of Hobhouse LJ in Pereira, set out a number of conclusions as to the meaning of section 189(1)(c) of the 1996 Act. For convenience, I will set out the relevant passage from his judgment (including the reference to Pereira) in full:
“35. Before considering the precise nature of the legal question for application by the Council, I should set out the material terms of section 189, which specifies who has a priority need for accommodation, namely –
“(a) a pregnant woman or a person with whom she 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."
36. In the exercise of its functions relating to homelessness and its prevention a local housing authority or social services authority is required by section 182 of the 1996 Act to “have regard to such guidance as may from time to time be given by the Secretary of State”. The current guidance in relation to vulnerability under section 189(1)(c) is to be found in the Secretary of State's Homelessness Code of Guidance for Local Authorities, at paragraph 8.13, which provides so far as material:
“The critical test of vulnerability for applicants in all these categories is whether, when homeless, the applicant would be less able to fend for himself than the ordinary homeless person so that he would be likely to suffer injury or detriment, in circumstances where a less vulnerable would be able to cope without harmful effects
In considering whether such applicants are vulnerable, factors that a housing authority may well wish to take into account are:
(i) the nature and extent of the illness or disability which may render the applicant vulnerable; and
(ii) the relationship between the illness or disability and the individual's housing difficulties.”
37. Earlier guidance was in substantially similar terms and eventually found its expression in the classic test of Hobhouse LJ (as he then was) in Pereira on the meaning of the word “vulnerable” in section 59(1)(c) of the Housing Act 1985, the predecessor of section 189(1)(c). In order properly to analyse the rival submissions in this case, I should set out, with some emphases of my own, the bulk of the passage in Hobhouse LJ's judgment, at 330, with which Waller LJ and Robert Walker LJ (as he then was) agreed, in which his expression of the test appears:
“… 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 Dominico). 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 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.”
38. I draw the following conclusions about section 189(1)(c) and that formulation of its meaning:
1) It is section 189(1)(c) in its broad and immediate statutory context that a local housing authority has to apply, not the Pereira test as if it were a statutory formulation. The Pereira test is simply a judicial guide - albeit and to the extent that it is sufficiently precise, an important one - to interpretation and application of the statutory provision.
2) The broad statutory context involves, as Hobhouse LJ noted at page 320 of his judgment in Pereira, by reference to observations of Lord Brightman in ex p Pulhofer [1986] AC 484, 517 and Lord Hoffmann in O'Rourke v Camden LBC [1990] 3 WLR 86, at 90: first, a matter of “priority” as between homeless persons; and second, a scheme of social welfare conferring benefits at public expense on grounds of public policy on those whom it identifies as entitled to such priority.
3) The scheme of the section is not to establish whether an applicant is homeless, but to establish whether he is a person whom the local housing authority believes to be homeless and eligible for assistance has a priority need entitling him to assistance. It does that by defining a number of circumstances, one of which is vulnerability, by which he may qualify as a person having a priority need.
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.
5) In its immediate context, Pereira established that a homeless applicant’s lesser ability than that of “an ordinary homeless person” to fend for himself in finding suitable accommodation may, on its own or in combination with other circumstances, amount to vulnerability for this purpose. However, the test does not impose as the sole, or even an integral, requirement of the notion of fending for oneself that an applicant should also be less able than normal to fend for himself in finding accommodation. I derive that proposition, not only from the context of the other categories of those qualifying for priority for which section 189(1) provide and which could not logically be so confined, but also from the following consideration of Hobhouse LJ's judgment against the backcloth of authorities to which he referred.
a) Hobhouse LJ began his judgment by mooting the possibility that "vulnerability" as defined in paragraph (c) is not general vulnerability but is confined to the effect of any of its manifestations described in that paragraph on a homeless person's ability to find a home without statutory assistance. Thus, he said, at pages 319 and 320:
“… Within section 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.” (my emphases)
b) It is apparent from his judgment at pages 320 and 321 that he was influenced in considering that tentative distinction by the reasoning of the Court, given by Waller LJ in R v Waveney Council, ex p Bowers [1983] 1 QB 238, which was adopted by the Secretary of State as part of his guidance to which, by section 71 of the 1985 Act (see now section 182 of the 1996 Act and the current guidance), local housing authorities are required to have regard in the exercise of their functions. It is from such reasoning, its treatment by subsequent authorities and the guidance that he drew the test that he formulated on page 330 of his judgment (see paragraph 38 above).
c) However, the treatment of the guidance in a number of first instance authorities to which he went on to refer was variously: to regard it: 1) as expanding or going beyond the meaning of an ability to "fend for oneself when homeless so as to include a consideration of an ability to find and keep accommodation – ex p Sangeramano (1984) 17 HLR 94, per Hodgson J; and ex p Carroll (1987) 20 HLR 142, per Webster J; or 2) as confining it to such consideration, that is, vulnerability in the housing market – ex p Di Dominico (1987) 20 HLR 153, per Mann J (as he then was). The latter meaning was approved, though extended by Simon Brown LJ in Ortiz v City of Westminster (1993) 27 HLR 364, in refusing leave to appeal so as to make it one of two essential requirements, the other being greater suffering than most if the applicant fails to obtain suitable accommodation.
d) The uncertainty left by these authorities was considered but not clearly resolved by this Court in R v Kensington & Chelsea LBC, ex p Kihara (1996) 29 HLR 147, in which Simon Brown LJ, whilst expressing doubts as to the cumulative nature of the two requirements he had suggested in Ortiz, expressed the view that either might do, though less ability than an ordinary homeless person to find accommodation might “on occasion have more to do with whether or not the applicant is truly homeless”. However, the judgment of Neill LJ, with which Simon Brown and Waite LJJ agreed, was that the words “other special reason” in what was then section 59(1)(c) of the 1985 Act were capable of including a number of circumstances that went beyond difficulty in finding accommodation.
e) A careful reading of Hobhouse LJ's reasoning in expressing the meaning of vulnerability in this statutory context, at page 330 of his judgment indicates a similar approach, namely that the word is capable of being met by one or more of a number of circumstances, one of which may, but need not, be greater difficulty than “an ordinary homeless person” in obtaining accommodation. Thus, he prefaced his articulation of the test (see paragraph 38 above) by stating that Simon Brown LJ's and Mann J's treatment of such a difficulty as an essential requirement of the test in Ortiz and Di Domenico should not be followed. And he concludes his treatment of it by saying the same about two other, first instance, authorities to like effect. And, in his elaboration of the test he made that plain by saying that whilst a homeless person's handicap in obtaining housing for himself “[could] be an aspect of his inability … to fend for himself”, it was “still necessary … to take account and assess whether in all the circumstances the applicant's ability to cope comes within paragraph (c)”.
f) Thus, Hobhouse LJ ends his judgment by rejecting the "potential" for contrast between paragraph (c) and the other paragraphs of section 189(1) with which he opened his consideration of the provision at page 319 of his judgment.
6) Despite some dicta suggesting the contrary, the test is a single one of a homeless person’s less than normal ability to fend for himself such that he will suffer more harm than would an ordinary homeless person – a “composite” assessment, as Hobhouse LJ put it.
7) For the purpose of applying the vulnerability test a local housing authority should take care to assess and apply it on the assumption that an applicant has become or will become street homeless, not on his ability to fend for himself while still housed. In this respect, it should have regard to the particular debilitating effects of depressive disorders and the fragility of those suffering from them if suddenly deprived of the prop of their own home; see the observations of Brooke LJ in R v Newham LBC, ex p Lumley (2003) 33 HLR 111, at para 63.
8) Nevertheless, although authorities should look for and pay close regard to medical evidence submitted in support of applicants’ claims of vulnerability on account of mental illness or handicap, it is for it, not medical experts, to determine this statutory issue of vulnerability.
9) Sections 184(3) and 202(3) of the 1996 Act require an authority when notifying an applicant of its decisions under these and other of its provisions, to give him reasons for any decision adverse to his interests. The reasons should be sufficient to enable him to form a view as to whether to challenge it on a point of law in the sense indicated by Lord Bingham in Runa Begum (see paragraph 34 above); see R v LB of Croydon (1993) 26 HLR 286, per Sir Thomas Bingham MR, at 291-292 and Steyn LJ at 292. However, decision letters under this provision should not be treated as if they were statutes or judgments and subjected to “pedantic exegesis” as Sir Thomas Bingham put it in the passage in the LB of Croydon case which I have identified. It is also important, when looking for the reasoning in such a letter, to read it as a whole to get its full sense.”
THE ARGUMENTS ON THIS APPEAL
Mr Colville submits that in considering whether Mr Bellouti had a priority need for accommodation within the meaning of section 189(1)(c) the Council ought to have asked itself two distinct questions, viz. (1) ‘Was Mr Bellouti vulnerable?’; and (2) ‘Did his vulnerability arise from any of the matters set out in section 189(1)(c)?’. He relies, as support for this approach, on the judgment of the Court of Appeal, delivered by Waller LJ, in R. v. Waveney District Council (ex p. Bowers) [1983] 1 QB 238 (“Bowers”).
In the course of its judgment in Bowers, the Court of Appeal said this (at p.244G):
“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 ed. (1976), p.1305). In our opinion, however, vulnerable in the context of this litigation 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.
….
When approaching the test of vulnerability it is necessary to look at other examples. A pregnant woman is an obvious example, old age is another, although the vulnerability of a man aged 65 is not quite so obvious. An individual who is deaf or dumb is another. In this case if the applicant’s problems arose solely because of his drink problem, it would be very difficult to say that his condition arose from mental illness or handicap, etc., but it is not the sole cause.
It would appear from the affidavit of the local authority that particular reliance was placed on the words “substantially disabled mentally or physically” in the Code of Guidance and that led them to the conclusion that accommodation only had to be provided for those in substantial need. It was also suggested in the course of the argument that the case had to be brought within one or other of the categories mentioned in section 2 (1) (c).
In our judgment this was not the correct approach. The first question which has to be considered is whether or not there is vulnerability. If there is vulnerability, then does it arise from those matters which are set out within section 2 (1) (c)? It may not arise from any single one but it may arise from a combination of those causes.”
Mr Colville submits that in conducting his review Mr Adelaja was only obliged to consider what Mr Colville calls “the second Bowers question” once he had answered “the first Bowers question” in the affirmative. He submits that it is essential that the two “Bowers questions” be asked in the right order, and that Mr Adelaja failed to do that.
Mr Colville relies on the fact that Hobhouse LJ in Pereira adopted the formulation of the test of vulnerability in Bowers (in the passage just quoted).
He submits that the Council failed to undertake a proper assessment of Mr Bellouti in order to determine whether he was ‘vulnerable’.
He further submits that Mr Adelaja misstated the Pereira test by describing the appropriate comparators as “his/her peers” (emphasis supplied). He submits that the reference to “peers” can only be understood as meaning a person who is no less vulnerable than the applicant; whereas the appropriate comparator is “an ordinary homeless person” (see Pereira). This, he submits, was a fundamental misdirection which is not cured by Mr Adelaja’s reference, later in the review decision letter, to a comparison with “other and assumed average homeless people”.
Mr Colville submits that that the judge fell into error in expressing himself (in the first sentence of paragraph 26 of his judgment, quoted in paragraph 37 above) as “not convinced that the effect of the test in Pereira is not that there will be a greater risk of injury or detriment”; as did Mr Adelaja when he said that he was satisfied “that you are not at greater risk of injury or detriment in the situation of homelessness in comparison with other and assumed homeless people”. He submits that that is not a correct application of the Pereira test, in that by requiring Mr Bellouti to demonstrate that he would be “at a greater risk of injury or detriment” than the assumed comparator, the Council impliedly accepted that he would suffer injury or detriment but nevertheless found him not to be vulnerable because the injury or detriment was not greater than that which would be suffered by the assumed comparator.
He submits that if the ordinary homeless person is going to suffer injury or detriment then the approach adopted by Mr Adelaja and by the judge introduces an element of ‘substantiality’ into the Pereira test, contrary to the observations of the Court of Appeal in Bowers. He submits that, having identified the appropriate comparator as a homeless person who does not suffer from the specific condition or disability suffered by the applicant, a true comparison with such a person will reveal whether the applicant is less able to fend for himself because of his conditions or disabilities and thus suffer injury or detriment, when the ordinary homeless person, not so afflicted, would be able to cope without harmful effect. He submits that there is no place for ‘substantiality’ in the application of the Pereira test.
Mr Colville submits, therefore, that the Council has placed too high a hurdle in Mr Bellouti’s path in proceeding on the footing that he must be at a greater risk of injury or detriment when homeless than an assumed homeless person; and that the Council did not address the central question whether Mr Bellouti, suffering as he does, would be less able to fend for himself so that he would suffer injury or detriment when homeless when an ordinary homeless person would be able to cope without harmful effect. He submits that this is supported by the Council’s reliance on Dr Keen’s assessment of Mr Bellouti’s health (an assessment which was not based on Pereira).
Finally, Mr Colville submits that the review decision was fatally tainted by procedural unfairness in that Mr Bellouti (and hence Dr Sultan) was not given an opportunity to comment on Dr Keen’s final report (produced, as noted earlier, shortly before the review decision letter).
In support of this submission, Mr Colville relies on the decision of Stanley Burnton J in R (Begum) v. Tower Hamlets London Borough Council (2003) HLR 8 (“Begum”). In that case, the defendant council, in rejecting the applicant’s contention that she was not intentionally homeless, relied on (among other things) letters from the applicant’s general practitioner containing detailed information about the applicant’s family. Stanley Burnton J expressed the question at issue as follows (in paragraph 34 of his decision):
“The question before me is not whether the defendant made adequate inquiries of third persons for this purpose. Indeed, it would be difficult to assert that the defendant failed to make any such inquiry that any reasonable authority would have made. The point is rather whether, when inquiries of third persons yield significant information inconsistent with that provided by the applicant, which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it.”
The judge concluded that a local authority is under such a duty. In paragraph 35 of his judgment he said this:
“The information provided by the claimants’ GP is significant, and has materially affected Mr Cruickshank’s conclusions. It follows that the defendant may not lawfully finally decide whether any particular accommodation is suitable for the claimants without taking into account their responses, now in evidence, to their GP’s letters.”
Mr Colville submits that the Council was under a similar duty in the instant case in relation to Dr Keen’s final report, which, like the general practitioner’s letters in Begum, contained significant material. He goes so far as to submit that “the last word” should always fall to the applicant. He accordingly submits that the review decision breached the principles of natural justice.
Mr Clarke submits that in reaching his decision Mr Adelaja weighed up all the available evidence; and that his decision is unimpeachable. He submits that the assessment which Mr Adelaja made, based on the totality of the available material, was a ‘composite’ assessment; and that it cannot be said that the decision he reached was Wednesbury unreasonable.
As to Mr Adelaja’s use of the word “peers”, Mr Clarke points out that the same word was used in Osmani; and that, read in context, it is clear that Mr Adelaja was referring to an ordinary homeless person.
Mr Clarke submits that Mr Adelaja correctly interpreted and applied the Pereira test.
As to possible procedural unfairness, Mr Clarke submits that there is a distinction between, on the one hand, factual issues that go to credibility (as in Begum) and, on the other hand. an assessment by the Council’s Independent Medical Adviser based purely on material submitted on behalf of the applicant (as in the instant case). He submits that there is no absolute duty on a local authority to allow the applicant the last word; and that there was no procedural unfairness in the instant case.
CONCLUSIONS
In my judgment if, after the decisions of this court in Bowers and Pereira, there remained any room for genuine doubt as to the test to be applied in deciding whether an applicant is ‘vulnerable’ within the meaning of section 189(1)(c), Auld LJ’s judgment in Osmani has removed it. It seems to me, if I may respectfully say so, that in his judgment in Osmani Auld LJ has said all that (at least for present purposes) need be said or can be said on the matter: so much so that any attempt on my part to provide further judicial guidance or to undertake further analysis would in all probability serve no purpose other than to increase the scope for the kind of dissective, semantic arguments that Mr Colville has addressed to us on this appeal.
With the Court of Appeal’s existing guidance firmly in mind, therefore, I can turn straightaway to the review decision letter.
In my judgment in the review decision letter Mr Adelaja addressed the correct question, and he did so in the right way, by considering (with, manifestly, the greatest care) all the relevant circumstances as known to the Council. That is to say, he made the requisite ‘composite’ assessment. He did not misstate the Pereira test, nor did he misapply it. In my judgment it can make no difference whether the conclusion is expressed in terms of the applicant being at no greater risk of injury or detriment than the ordinary homeless person, or in terms of the applicant being no less able to fend for himself than the ordinary homeless person. These are simply two ways of saying the same thing. Either way, the applicant is not ‘vulnerable’ within the meaning of section 189(1)(c). ‘Substantiality’ does not come into it.
Nor, in my judgment, is there any substance in the criticism that the Council failed to make adequate inquiries. It was for Mr Bellouti to put forward the material on which he relied in support of his assertion of priority need, and the Council duly placed that material before its Independent Medical Adviser (having, as I noted earlier, given notice in the assessment form that it would do so).
I also reject Mr Colville’s submission as to the meaning of the word “peers” where it appears in the review decision letter. As Mr Clarke has pointed out, the same word was used by the defendant council in Osmani (see the quotation in paragraph 18 of Auld LJ’s judgment). In any event, reading the expression “his/her peers” in the context of the review decision letter as a whole, it is plain, in my judgment, that Mr Adelaja was referring to the ordinary homeless person, and not to someone in a similar position to Mr Adelaja. Mr Colville’s suggested interpretation makes no sense.
As to procedural unfairness, I first of all reject the submission that there is some absolute rule of natural justice that an applicant must have the last word in every case. Whether or not it is unfair not to give the applicant the last word must depend on the facts of the particular case. In the instant case I respectfully agree with the judge that “the to-ing and fro-ing between Dr Sultan and Dr Keen had to stop somewhere” (see paragraph 24 of his judgment, quoted in paragraph 37 above). The instant case is distinguishable from Begum in that in the instant case the Council did not take into account factual material obtained from a third party: it merely referred the material on which Mr Bellouti relied to its Independent Medical Adviser for his comments. I therefore reject the suggestion of procedural unfairness.
RESULT
I would dismiss this appeal.
Lady Justice Arden:
I agree.
Lord Justice Tuckey:
I also agree.
ORDER: Appeal dismissed; the appellant’s application for permission to appeal to the House of Lords is refused; order as agreed between the parties.
(Order does form part of approved judgment)