ON APPEAL FROM
CLERKENWELL AND SHOREDITCH COUNTY COURT
HHJ Mitchell
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE GLOSTER
LORD JUSTICE UNDERHILL
and
LORD JUSTICE FLOYD
Between :
EDWARD AJILORE | Appellant |
- and - | |
MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HACKNEY | Respondent |
(Transcript of the Handed Down Judgment of
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Dominic Preston (instructed by Hackney Community Law Centre) for the Appellant
Terry Gallivan (instructed by London Borough of Hackney) for the Respondent
Hearing dates : 12th & 13th June 2014
Judgment
Lady Justice Gloster:
Background
This is an appeal by Edward Ajilore (“the appellant”) against the order of His Honour Judge Mitchell sitting in the Clerkenwell and Shoreditch County Court dated 22 July 2013. The court below dismissed the appellant’s appeal against the review decision dated 28 December 2012 (“the review decision”) of the respondent local housing authority, theLondon Borough of Hackney (“the local authority”). Permission to appeal was given by Arden LJ on 21 December 2013.
The central issue on the appeal is whether the judge erred in upholding the reviewing officer’s decision that the appellant was not vulnerable, and therefore that he was not in priority need for housing under the provisions of the Housing Act 1996 (“the 1996 Act”).
The appellant experienced a troubled childhood and youth. He became involved in gang culture and crime and he became addicted to Class A drugs. According to a report from the appellant’s general practitioner (“the GP”), there was considerable emotional distress within his childhood family home.
In 2010 the appellant served 18 months of a 27-month prison sentence for possession of Class A drugs, and he was released in 2011.
Subsequently, the appellant’s mother obtained an injunction excluding him from her home after he was allegedly violent towards her.
On 4 April 2012, the appellant presented to the local authority as homeless and applied for re-housing under Part VII of the 1996 Act. At that date, the appellant stated that he was staying in a drugs den.
Part VII of the 1996 Act
For present purposes, the material provisions of the 1996 Act are sections 184, 189, 193 and 202 - 204. They provide, so far as relevant, as follows:
“Section 184 – Inquiry into cases of homelessness or threatened homelessness
(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves—
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(2) They may also make inquiries whether he has a local connection with the district of another local housing authority in England, Wales or Scotland.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision.
(4) If the authority have notified or intend to notify another local housing authority under section 198 (referral of cases), they shall at the same time notify the applicant of that decision and inform him of the reasons for it.
(5) A notice under subsection (3) or (4) shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made (see section 202).
(6) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given to him if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.
Section 189 – Priority need for accommodation
(1) The following have a priority need for accommodation—
(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.
(2) The Secretary of State may by order—
(a) specify further descriptions of persons as having a priority need for accommodation, and
(b) amend or repeal any part of subsection (1).
(3) ………..
(4) ………...
Section 193 - Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.
(3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167(1A) (policy on offering choice to people allocated housing accommodation under Part 6).
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant—
(a) ceases to be eligible for assistance,
(b) becomes homeless intentionally from the accommodation made available for his occupation,
(c) accepts an offer of accommodation under Part VI (allocation of housing), or
(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,
(d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.
…………..
(9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.
Section 202 - Right to request review of decision.
(1) An applicant has the right to request a review of—
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness),
………
(2) There is no right to request a review of the decision reached on an earlier review.
(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority’s decision or such longer period as the authority may in writing allow.
(4) On a request being duly made to them, the authority or authorities concerned shall review their decision.
Section 203 - Procedure on a review.
(1) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under section 202.
Nothing in the following provisions affects the generality of this power.
(2) Provision may be made by regulations—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the applicant is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(3) The authority, or as the case may be either of the authorities, concerned shall notify the applicant of the decision on the review.
(4) If the decision is—
(a) to confirm the original decision on any issue against the interests of the applicant, or
(b) to confirm a previous decision—
(i) to notify another authority under section 198 (referral of cases), or
(ii) that the conditions are met for the referral of his case,
they shall also notify him of the reasons for the decision.
(5) In any case they shall inform the applicant of his right to appeal to a county court on a point of law, and of the period within which such an appeal must be made (see section 204).
(6) Notice of the decision shall not be treated as given unless and until subsection (5), and where applicable subsection (4), is complied with.
(7) Provision may be made by regulations as to the period within which the review must be carried out and notice given of the decision.
(8) Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.
Section 204 - Right of appeal to county court on point of law.
(1) If an applicant who has requested a review under section 202—
(a) is dissatisfied with the decision on the review, or
(b) is not notified of the decision on the review within the time prescribed under section 203,
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision.
(2) An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.
(2A) ……
(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit. …..”
The general approach under section 204
It is well established that the court's jurisdiction under section 204 is limited to errors of law and is essentially (although not in form) a judicial review jurisdiction. As Lord Brightman said in Ex parte Puhlhofer [1986] AC 484 at 518, in relation to the statutory predecessor of section 204, where any challenge had to be made by judicial review proceedings, "great restraint" should be exercised before the court interferes with the local authority's decision in relation to factual questions relating to homelessness and priority need.
Likewise, Chadwick LJ stated in William v Wandsworth LBC: Bellamy v Hounslow LBC [2006] EWCA Civ 535 at [20];
“Where what is alleged is a misconstruction of ascertained facts, ‘obvious perversity’ is required before the court can properly interfere with the authority’s findings of fact. The court must respect the role which has been entrusted to the authority by the provisions in Part VII of the Act. ”
To similar effect is the statement of Wall LJ in Wandsworth LBC v Allison [2008] EWCA Civ 354 at [65], where he articulated the question for the court to determine under section 204 of the 1996 Act as follows:
“[65]……whether or not the decision reached by Ms Anglin [the reviewing officer] that Mr Allison was not in priority need for accommodation under s 189(1)(c) of the Act was one which was properly open to her on the evidence before her. To put the matter in lawyer's terms, the Recorder could only quash Ms Anglin's decision if it was Wednesbury unreasonable – see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, per Lord Greene MR in particular at 233-4. In other words, was Ms Anglin's decision one which no housing officer, properly directing her mind to the material before her could properly reach? If the decision was one which was properly open to her, then the overwhelming weight of authority is to the effect that the decision was one for her, and that there is no basis upon which the court could properly interfere with it, however, much the court may or may not agree with it.”
Assessment of vulnerability - the relevant law
Pursuant to section 193 of the 1996 Act, a local authority owes a more onerous duty to an applicant who has a priority need under section 189 of the 1996 Act.
The question of how to determine whether a person is vulnerable for the purpose of section 189(1)(c) of the 1996 Act arose for consideration in R v Camden LBC ex parte Pereira (1998) 31 HLR 317. The Court of Appeal held that an applicant is vulnerable if he is less able to fend for himself than an ordinary homeless person, so that injury or detriment will result in circumstances where a less vulnerable person would be able to cope without harmful effects. At 330, Hobhouse LJ (with whom Waller and Robert Walker LJJ agreed), in setting aside the Council's determination that Mr Pereira was not a person having a priority need, summarised the approach to the question and 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.” [My emphasis.]
The Pereira test is a judicial guide to the interpretation and application of section 189(1)(c) and should not be applied as if it were a statutory formulation: see Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 22. In Osmani Auld LJ (with whom Judge and May LJJ agreed) reiterated that vulnerability must be looked at as a composite assessment of all the circumstances, looking at both the applicant’s ability to cope compared with the ordinary homeless person and whether he would suffer harm or detriment. However he also emphasised that the application of the Pereira guide, and the decision whether an applicant is vulnerable, is an imprecise evaluative judgment which is one for the local housing authority to make. I quote selectively from paragraphs [33]-[38] of Auld LJ’s useful summary of the law:
“[33] In Runa Begum Lord Bingham of Cornhill, at para 7 of his speech, identified the ambit of a “judicial review” challenge in the context of a homelessness appeal to the County Court under s 204 of the 1996 Act:
“ . . . the court may not only quash the authority's decision under section 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there was no evidence to support factual findings made or they are plainly untenable or . . . if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact. In the present context I would expect the county court judge to be alert to any indication that an applicant's case might not have been resolved by the authority in a fair, objective and even-handed way, conscious of the authority's role as decision maker and of the immense importance of its decision to an applicant. But I can see no warrant for applying in this context notions of 'anxious scrutiny' . . . or more rigorous tha[n] would ordinarily and properly be conducted by a careful and competent judge determining an application for judicial review.”
[34] As Mr McGuire observed, the main focus of attention on a second appeal such as this should be on the decision of the Council rather than that of the County Court Judge on appeal from it. As I have said, the appeal lies only on a point of law, and, within the Wednesbury type formulation given by Lord Bingham, matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread warily before interfering. Lord Walker of Gestingthorpe acknowledged the complexity of the task for housing authority administrators in the following passage from his speech in Runa Begum, at para 114 of his speech:
“. . . It is apparent that the process [by which a homeless person becomes entitled to the performance of the full housing duty] involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment. . . .
. . . Establishing priority need may call for the exercise, and sometimes for a very difficult exercise of evaluative judgment. . . . the identification of a 'vulnerable' person may present real problems . . . “ [My emphasis]
[35] …..
[36] In the exercise of its functions relating to homelessness and its prevention a local housing authority or social services authority is required by s 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 s 189(1)(c) is to be found in the Secretary of State's Homelessness Code of Guidance for Local Authorities, at para 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 s 59(1)(c) of the Housing Act 1985, the predecessor of s 189(1)(c). …
[38] I draw the following conclusions about s 189(1)(c) and that formulation of its meaning:
1) It is s 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] 3WLR 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. [My emphasis.]
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 s 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……
…….
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 (on the application of Lumley) v Newham LBC (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.”
Other useful statements as to the correct approach are to be found, for example, in:
Tetteh v Kingston RLBC [2004] EWCA Civ 1775, [2005] HLR 21 where Gage LJ said at [21]:
“The concept of the ordinary homeless person is hypothetical. A local housing authority has a vast experience of the range of homeless persons and is not required to spell out precisely the attributes of the ordinary homeless person”;
Johnson v Solihull MBC [2013] EWCA Civ 752, [2013] HLR 39, where Arden LJ emphasised at [16]-[18] that the correct comparator is the ordinary homeless person, not the ordinary person who is homeless, and stated at [18]:
“It falls to the Housing Authority to consider what features such a person would have. It is also clear from that paragraph that the question of who is an ordinary homeless person and what characteristics they have is a question to be assessed in the real world. It is sadly not surprising that many homeless persons have drug issues, or that many homelessness services are involved with dealing with those issues.”
The approach to the reasons given by a local authority in decision letters
As Mr Terry Gallivan, counsel for the local authority submitted, although an authority is required to give reasons for its decision which are proper, adequate and intelligible and to enable the person affected to know why they have won or lost, decision-makers enjoy a certain latitude: see per Chadwick LJ in William v. LB Wandsworth; Bellamy v. LB Hounslow supra at [18]. Decisions should not be construed as if they were statutes. They should be read as a whole: Simms v LB Islington [2008] EWCA Civ 1083; [2009] HLR 20; and not subject to dissective semantic analysis or pedantic exegesis: Osmani at [38(9)]; Bellouti at [57-61].
In Holmes-Moorhouse v. LB Richmond [2009] UKHL 7, Lord Neuberger offered the following guidance to county court judges dealing with section 204 appeals:
“a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”
Against that summary of the law I turn to consider the appellant’s application.
The appellant’s application
The appellant contended to the local authority that he was vulnerable for two reasons: first, he said that, if he were made street homeless, he would be at risk of committing suicide because he had suffered from depression; secondly, he submitted that, if he were made street homeless, he would be at risk of relapsing to cocaine abuse, due to his long history of using Class A drugs.
The local authority evaluated the appellant as not being vulnerable for the purpose of section 189(1)(c) of the 1996 Act. Its decision under section 184 of the 1996 Act classed the appellant as not in priority need. Accordingly, on 4 April 2012, his application was dismissed.
The appellant applied for a review under section 202 of the 1996 Act. He contended that he was vulnerable, within the meaning of section 189(1)(c) of the 1996 Act, because of his medical illnesses of depression, asthma, suicidal ideation and other reasons such as the continuing threat from gang members and the risk of relapse to cocaine use.
The appellant’s solicitors submitted written representations on his behalf, as well as a number of medical reports and other supporting material. The local authority granted him interim accommodation for nine months pending the review decision.
On 27 August 2012, the reviewing officer sent a ‘minded to letter’, in which he stated that, although the appellant suffered from depression, it was not necessarily any different from that which an ordinary homeless person would suffer. The reviewing officer wrote that it was not unusual for street homeless people to have thoughts of self-harm and suicide, and that he was not satisfied that the appellant was genuinely seeking to harm himself.
The reviewing officer interviewed the appellant on 28 September 2012, and made further enquiries of his GP. He declined to speak to the appellant’s probation officer. The GP wrote a detailed report on 9 November 2012 saying that the appellant had attended his surgery reporting low mood, anxiety and panic attacks. He reported that difficulty coping with homelessness or the threat of homelessness was the main reason for these symptoms, and that the appellant was suffering from ‘reactive depression due to severe psychosocial distress’. The GP did not indicate any new developments in the appellant’s psychological state, having previously stated that he did not think the appellant was neurologically depressed and that currently he was not on medication.
The review decision dated 28 December 2012
By letter dated 28 December 2012, the reviewing officer notified the appellant that the former had determined that the appellant was not vulnerable, whether the matters which the appellant had put forward were considered separately or together, and therefore he was not in priority need. In summary the review decision concluded that:
the appellant suffered from depression but such depression was not necessarily anything different from that which an ordinary street homeless person would have suffered from;
there would be a risk of self-harm and suicide if the appellant became street homeless, but, again, that was not anything different from that which ordinary street homeless people might suffer from;
the appellant would be at risk of relapsing to the use of drugs, if the appellant were made street homeless, but that did not necessarily differentiate him from the other ordinary street homeless;
the appellant’s depression and mental health issues did not make him vulnerable;
accordingly, there was no special reason to differentiate the appellant from other homeless people.
The review decision was nine pages long. As Mr Dominic Preston, counsel for the appellant accepted, it was logical in its structure and relatively easy to follow. It is relevant to set out a more detailed summary of the critical paragraphs of the review decision:
at [1] to [2] of the review decision, the reviewing officer set out verbatim the Pereira test and reminded himself that the test was a composite one;
at [4] to [8] the reviewing officer dealt with the appellant’s depression and anxiety; he accepted that the appellant suffered from depression but asserted that a large proportion of homeless people suffered from depression; he concluded that the appellant’s symptoms were no different from those of the average homeless person;
at [8] the reviewing officer noted the GP' s recent diagnosis of reactive depression due to psychological stress but concluded:
‘I am not satisfied that what you are suffering from is necessarily anything different to what an ordinary street homeless will suffer from …’;
the reviewing officer dealt with the risk of suicide at paragraphs [12] to [14] of the decision; having reviewed the appellant's history to date, he concluded that the appellant currently had no genuine desire to harm himself; the relevant passage stated at [12]:
“I have noted that in 1999 you overdosed. You also stated that you were on suicide watch whilst in prison. However, you left prison in May 2011 and there have been no recorded attempts of self-harm since your release from prison despite the assertion by Val Thomas that you have expressed suicidal ideation. When I initially made inquiries of your GP he did not state that there was a risk of self-harm although you did tell him that you thought you would be better off dead. Given the above, I am not satisfied that you are genuinely seeking to harm yourself.”;
having referred to the fact that the appellant was currently housed (and had been housed for 9 months), the reviewing officer then dealt with the GP’s assertion that if made street homeless there was a risk of suicide at [13]:
“In his letter dated 9th November 2012 Dr Phelan advised Ms Thomas that he thinks that there might be a suicide risk if you were to be made homeless. I am not disputing that there will be a risk of self-harm and suicide if you were street homeless. However, this is not anything different to what I would find in ordinary street homeless people. A report published in the British Medical Journal in 2005 confirmed that homeless people do have higher self-harm incidents than the ordinary population. Indeed, in this report it was found that it was 7.2% higher. A recent Joseph Rowntree Report on homelessness found that 38% of homeless people attempted suicide. This shows that even if you did have suicidal thoughts that this would not necessarily be anything different to what an ordinary homeless person would suffer from. Given the above I am not satisfied that your depression/mental health issues make you vulnerable.” [Emphasis added.];
the reviewing officer dealt with the appellant’s drug use at paragraphs [22] to [25] of the decision; at [22] he accepted that there was a history of drug use and recorded that the appellant had informed him that he was no longer using class A drugs and only sometimes smoked cannabis; I quote paragraphs [22] and [23] where the reviewing officer stated:
“[22] It is evident that you have a history of drug use. Indeed, you were involved in such an extent with drugs that you pleaded guilty to distributing cocaine although you denied this was the case. It was for this reason that you served a prison sentence. When I spoke to you on the 25 August 2012 you informed me that you are no longer using Class A drugs and now only sometimes smoke cannabis.
[23]‘Homeless Link’s Survey of Needs and Provision (SNAP) 2010 found that drug issues were among the issues most frequently affecting the users of homelessness services. SNAP 2010 found that 92% of homelessness services are working with people who are experiencing problems with drugs and that since 2008 availability of harm minimisation services and residential rehabilitation had increased by 9%. This clearly shows that your drug use is no different to other ordinary homeless people. More significantly, you do not appear to have suffered any secondary medical problems as a result of your cannabis use or other drug history and as I have stated your ability to fend is not impaired. This is evident from the fact that you are still able to work and your GP confirmed that you do not need any assistance with activities of daily living.";
in relation to the issue of future relapse into drug abuse, the reviewing officer said the following at [24] and [25]:
“[24] There will certainly be a risk of you relapsing in using drugs if you were street homeless. However, I am not satisfied that this is to the extent that would necessarily differentiate you from other ordinary street homeless people.
[25] Given the above, I am not satisfied that your drug use/history makes you vulnerable.";
Finally at paragraphs [29] to [30] the reviewing officer stated:
“Under the category of special reason I must consider whether your medical problems and circumstances taken as a whole make you vulnerable. I have looked into all your circumstances and I am satisfied that there is nothing that differentiates you from other homeless people for the reasons given above. It does appear to me that your ability to fend is not significantly compromised and you are quite capable of managing independently. Whilst I appreciate that it would be stressful being street homeless nevertheless I am satisfied that you have sufficient capabilities to ensure that you did not suffer injury or detriment greater than an ordinary homeless person. Therefore I am not satisfied that you are vulnerable as a result of any special reason.”
The appellant's appeal to the Clerkenwell and Shoreditch County Court
The appellant appealed the local authority’s review decisionto the Clerkenwell and Shoreditch County Court. By the time that the appeal was heard on 22 July 2013, the appellant was homeless.
Before the County Court it was argued on the appellant’s behalf that the reviewing officer had erred in law on three grounds:
First, under grounds 1 and 2, that, in constructing a view of the ordinary homeless person, the reviewing officer had failed to consider the attributes of all the residents of the local borough to decide what was ordinary; rather, the reviewing officer had wrongly considered only the sub-group of the homeless and thereby misdirected himself in law;
secondly, in the alternative, under grounds 3(3) and 3(4), it was submitted that the reviewing officer had come to an irrational conclusion by attributing to the ‘ordinary homeless person’ existing depression, a history of drug use, and a likelihood of drug relapse, self-harm and suicide, based on a misunderstanding of the statistics used by the reviewing officer in his review decision;
thirdly, it was argued under grounds 3(1), 3(2) and 3(5) that, whether or not the correct test had been applied, it was unclear how the reviewing officer had dealt with the risk of drug relapse and that he had put forward inadequate reasoning for the review decision.
On 22 July 2013 HHJ Mitchell dismissed the appeal. It was accepted before HHJ Mitchell by Mr. Preston, on behalf of the appellant, that grounds 1 and 2 of the appeal necessarily failed in light of the recent decision of another division of this court in Johnson v Solihull Metropolitan Borough Council [2013] EWCA Civ 752. However Mr. Preston reserved the points for further argument in a higher court.
In relation to the third ground, HHJ Mitchell held that the statistics used by the reviewing officer concerning the rate of suicide among street homeless people had been misunderstood by the reviewing officer. That misunderstanding had led to an inflated picture of the risk of suicide amongst the homeless. Nonetheless, the judge upheld the review decision, as the reviewing officer had found that the appellant’s likelihood of suicide was low and that was a judgment that the reviewing officer was entitled to make.
The judge also concluded that the reviewing officer had decided that the risk of relapse into drug use did not constitute harm; the judge upheld what he regarded as the reviewing officer’s decision that the risk of relapse into drug use did not constitute harm; and that it was the drug use following relapse which was harmful. In considering whether the risk of the appellant relapsing to drug use constituted greater detriment than that suffered by the ordinary homeless person, the judge gave way to the reviewing officer’s knowledge and experience and the appellant’s limited past and current use of drugs. HHJ Mitchell upheld the reviewing officer’s decision that the appellant’s risk of relapse did not differentiate him from the ordinary homeless person, as it was within the wide bounds of possible reasonable decisions open to the reviewing officer.
The appellant's grounds of appeal before this court
Before this court, Mr Preston presented four grounds of appeal:
Ground 1 - the risk of suicide. Mr Preston submitted that, although the reviewing officer had (on one hypothesis) correctly applied the Pereira test by comparing the appellant to the ‘ordinary homeless person’, in constructing the comparator the reviewing officer misinterpreted statistical evidence and consequently wrongly inflated the risk of suicide amongst the homeless. In the court below, the judge had held that the mistake did not matter because the reviewing officer had graded the appellant's risk of suicide if street homeless as ‘low’. The basis of the argument under ground 1 was that no such grading could be discerned from the face of the review decision and that the reviewing officer’s over-inflation of the comparator rendered the decision flawed as a matter of law.
Ground 2 - the risk of relapse into drug use. Mr Preston submitted that the reviewing officer’s finding that the appellant’s drug history did not differentiate him from the ‘ordinary homeless person’ was unsustainable. The judge held that the reviewing officer had found that the risk of relapse was not capable of being a "harm" or detriment for the purposes of Pereira and that the reviewing officer had been entitled to make that finding. Both the reviewing officer and the learned judge erred in law. Whilst a risk of relapse might not be harm, it was capable of being a detriment for the purposes of the test in Pereira.
Ground 3 - an alternative to ground 2. In the alternative to ground 2, the appellant also contended that if, contrary to the judge's judgment, this court were to hold that the reviewing officer did not conclude that the risk of relapse was incapable of constituting "harm" or a detriment, the reviewing officer erred in law in any event because:
the reviewing officer failed to give adequate or sufficient reasons to explain how he dealt with the question of drug relapse;
alternatively if he concluded that other ordinary homeless persons were recovering Class A drug addicts at risk of relapse, he came to a conclusion that was perverse and/or unavailable on the statistical evidence cited by the reviewing officer;
alternatively if the reviewing officer concluded that the appellant would not suffer a relapse or a significant risk of relapse, the reviewing officer came to that conclusion without having regard to the impact of the appellant's depression (and other social and medical problems) on his ability to avoid any relapse whilst homeless.
Ground 4 - the Johnson point. Mr Preston submitted that Pereira required the reviewing officer to benchmark an applicant’s vulnerability against that of the ‘ordinary homeless person’ and that accordingly the reviewing officer erred in law by comparing the appellant’s vulnerability with that of the hypothetical ‘homeless person’; he should have compared the appellant with the hypothetical ‘ordinary person’, the former being a more vulnerable sub-group of the latter. However Mr Preston accepted that another constitution of this court had decided in Johnson v Solihull MBCsupra that the correct comparator was the more vulnerable ‘homeless person’ and that that decision was binding on this court. Accordingly the appellant maintained ground 4, but without presenting arguments on the point, in the light of Mr Johnson’s anticipated application for permission to appeal to the Supreme Court.
Discussion and determination
Ground one: the risk of suicide
The issue under this head was in essence whether the judge was correct to conclude that, despite the fact that the reviewing officer misconstrued the statistics, that fact did not invalidate the reviewing officer's decision that the appellant's depression and mental health issues did not render him vulnerable so as to be in priority need. This means that this court has to consider whether, if the reviewing officer had understood his mistake and reconsidered the data, he possibly might have come to a different result. I remind myself that, as was said by Auld LJ in Osmani at [34], the main focus of attention on a second appeal such as this should be on the decision of the local authority rather than that of the County Court Judge on appeal from it. Accordingly the focus of my judgment is directed to the decision of the reviewing officer.
Mr Preston's first criticism was directed at the reviewing officer's statement in paragraph 13 of the decision letter that a report in the British Medical Journal in 2005 confirmed that:
“homeless people do have higher self-harm incidents than the ordinary population. Indeed, in this report it was found that it was 7.2% higher.” [Emphasis added.]
It was common ground before us that the assertion by the reviewing officer that the relevant report in the British Medical Journal confirmed that homeless people were 7.2% more likely to self harm than the ordinary population was wrong. The so-called "Report”, which in fact was a letter to the British Medical Journal, volume 331, 22 October 2005, from a general practitioner at the NFA Health Centre, Leeds ("the BMJ letter"), merely stated:
“We looked at the incidence of deliberate overdose in our population of homeless patients from 1999 to 2003. There were 177 episodes in 116 patients, out of a population of 1617. This translated to an incidence of 7.2%, higher than that in the general population.
Taking an overdose, and other forms of self harm, are more common in homeless people, many of whom have multiple illness.”
So the BMJ letter did no more than to state that the incidence of 7.2%, found in its survey of 177 episodes in 116 patients, out of a total population of 1617, was higher than that in the general population; but the letter did not state what the incidence of self harm was in the general population, or how much higher the figure of 7.2% was than the incidence in the general population.
However, like the judge, I do not consider that the fact that the reviewing officer effectively failed to read the sentence correctly, by overlooking the comma and overstating the percentage reflected in what was, on any basis, a small survey, in any way undermined his conclusions as stated in paragraphs 12 and 13 of the decision letter that he was "not satisfied that you are genuinely seeking to harm yourself" and that the appellant's risk of self harm and suicide, if he were street homeless, would not be "anything different" from what the reviewing officer would expect to find in "ordinary street homeless people". The BMJ letter clearly did confirm, as the reviewing officer stated, that homeless people do indeed have higher self-harm incidence than the ordinary population.
Moreover, other material which the reviewing officer had before him, such as the Joseph Rowntree Foundation Report "Tackling homelessness and exclusion: Understanding complex lives": September 2011, also clearly supported the proposition that the incidence of self harm and suicide attempts in street homeless people was notable. At page 1 of this document is the statement:
"Traumatic childhood experiences such as abuse, neglect and homelessness are part of most street homeless people's life histories. In adulthood, the incidence of self-harm and suicide attempts is notable."
Table 2 of the report also showed that within the sample selected for extended interview 38% of those interviewed who had experienced multiple exclusion homelessness ("MEH") had attempted suicide. Based on this material, the reviewing officer said:
“A recent Joseph Rowntree Report on homelessness found that 38% of homeless people attempted suicide. This shows that even if you did have suicidal thoughts that this would not necessarily be anything different to what an ordinary homeless person would suffer from. Given the above I am not satisfied that your depression/mental health issues make you vulnerable.”
Mr Preston criticised the reviewing officer’s reliance upon the Joseph Rowntree Foundation report on the grounds that not only had those statistics been taken from a subset of the most vulnerable amongst the homeless (i.e. those who had experienced MEH) and should not have been relied upon by the reviewing officer, but also that the statement that 38% of homeless people had attempted suicide did not necessarily identify the time at which they had made such attempts; i.e. it was not clear whether such attempts had been made at a time when the person in question was homeless.
Based on these, and other criticisms of statistical materials referred to, Mr. Preston contended that the reviewing officer had over-inflated the risk of harm and detriment likely to be suffered by the ordinary homeless person and that the failure to understand the statistics permeated the decision; due to the mistake of fact, the reviewing officer either had failed to have regard to relevant factors or had had regard to irrelevant factors, contrary to E v Secretary of State for the Home Department[2004] EWCA Civ 49; he further submitted that the reviewing officer’s life experience of a subset of homeless people was, on its own, insufficient to fortify the position taken.
I disagree. Whilst I accept that the reviewing officer did not explain the precise premise upon which the Rowntree Foundation statistics were based, or attempt to qualify his quotation from the report, I accept Mr. Gallivan’s submission that the statistics were used by the reviewing officer in order to back up the conclusions that he had drawn from his own knowledge of an ordinary street homeless person, as a skilled and experienced housing officer, and from his own assessment, in a lengthy and detailed case, of the evidence relating to the appellant himself. Moreover the appellant was indeed within the subset of the MEH class, and therefore the statistics in Table 2 were indeed relevant to him. It is particularly clear from the structure of the review decision that the Rowntree report was used as evidence of a conclusion to which the reviewing officer had come: thus the reviewing officer stated that the appellant’s risk of suicide ‘[was] not anything different to what I would find in ordinary street homeless people’ and then goes on to set out the statistics.
Although the statistics in the BMJ letter were misinterpreted by the reviewing officer, and he did not explain the qualifications to certain other statistics to which he referred, the data and reports considered by the reviewing officer did indeed support the contention that the issues faced by the appellant were those which, in the real world, might well be experienced by the ordinary homeless person. Whilst it would be inappropriate for this court to consider new statistics (as the local authority’s written argument encouraged the court to do), the picture painted (in particular by the Rowntree Foundation report and the Survey of Needs & Provision 2010 Report, produced by Homeless Link, which was also before the reviewing officer) certainly demonstrated that the reviewing officer’s analysis was sound and in line with the evidence to which he referred.
Most importantly, the review decision was not based wholly or principally on the statistics. As HHJ Mitchell pointed out at paragraphs 22 and 23 of his judgment, and as is manifestly clear from the decision letter itself, the reviewing officer principally based his decision on:
his careful evaluation of the evidence relating to the appellant’s health and the likelihood of risk that he would self-harm, which he found to be low; he was, as the judge said, and contrary to Mr Preston's submission, clearly aware of the need to differentiate between the risk when the appellant was housed and when he was street-homeless; and
his own extensive experience as a reviewing officer which enabled him to compare the level of risk of the appellant’s self-harm with that of the ordinary homeless population; as he himself said, he had worked for nearly five years with the Joint Assessment Service who are mental health specialists and who:
“have assessed thousands of homeless people in the context of vulnerability and they have found that it is not unusual for ordinary homeless people to suffer from a degree of depression with symptoms of anxiety’”.
Accordingly I reject Mr Preston’s submission that the reviewing officer’s errors in relation to, or arguable misinterpretation of, the statistics permeated his whole decision and that he might have come to a different decision as to the appellant’s risk of suicide or self-harm, if he had correctly appreciated what they demonstrated. Although there were mistakes as to the statistics, that did not infect the decision in such a way as to have rendered it unlawful. The decision was clearly one that the reviewing officer was entitled to reach on the material before him. Mr Preston’s criticisms of the decision letter in this respect are, in my view, technical and over-forensic and fall foul of the approach advocated by Lord Neuberger in Holmes-Moorhouse v London Borough of Richmond as quoted above.
In this context it is relevant to note that all of the criticised statistics had been set out, in the form in which they were then applied in the review decision, in the local authority's ‘minded to’ letter dated 27 August 2012 sent by the reviewing officer to the appellant’s solicitors. They were invited to make representations. In their response, dated 18 September 2012, they stated twice that ‘improper weight’ or ‘too much emphasis’ was given to those statistics, but no further elaboration was given. Mr. Gallivan rightly drew an analogy with Cramp v Hastings [2005] EWCA Civ 1005, in which the Court of Appeal held that two judges should not have interfered with the decisions of reviewing officers in circumstances where the applicant’s solicitors failed to point to errors in reports that had been relied upon.
I also reject Mr Preston's submission that HHJ Mitchell was wrong to hold that the reviewing officer was entitled to conclude the likelihood of suicide was low and therefore it did not cause detriment, applying the ‘second limb’ of the test in Pereira, on the basis that, as Mr Preston submitted, the risk of suicide had not been graded by the reviewing officer. Mr Preston submitted that no such grading could be discerned from the face of the review decision and that, in any event, it was contrary to the evidence from the appellant’s GP, whose medical notes disclosed: a history of depression; an attempted suicide in 1999; a prescription for citalopram as well as the opinion of the GP that medication did not indicate precisely the level of depression; and suicidal ideation.
As Mr Gallivan submitted, the reviewing officer’s report has to be read in its full context. The reviewing officer in my judgment clearly understood his task of evaluating the risk to the appellant if he were made street homeless; he stipulated that he did not accept that the appellant’s risk of suicide was pressing, thereby indicating how he graded the risk of suicide in comparison with that faced by the ordinary homeless person, on the basis of his experience and expertise.In particular, in my judgment, the reviewing officer was clearly entitled to form the view, on the basis of his full review of the medical notes and other medical evidence, that there was only a very slender basis for the GP's conclusion that there was a suicide risk if the appellant were made homeless. The GP recorded, on various occasions, that the appellant was not having thoughts of self harm or suicidal ideation despite, at the date of some of those appointments, being street homeless. Moreover, it would appear that the appellant’s condition worsened after he was temporarily housed in April 2012, which counters his contention that it was street homelessness that wouldput him at risk of self harm and suicide. In my opinion, a fair evaluation of all the evidence demonstrates that the reviewing officer’s decision was not perverse and one which he was entitled to reach.
For the above reasons I would reject the appellant’s first ground of appeal.
Ground two: the risk of relapse into drug abuse
Ground three: the alternative grounds of challenge in relation to the risk of relapse into drug abuse
Under the second and third grounds of appeal, Mr. Preston submitted in summary as follows:
The reviewing officer, and the judge, erred in finding that the risk of relapse into Class A drug use could not constitute “detriment” for the purposes of the Pereira test.
Although the risk of relapse may not have constituted harm, it was nonetheless capable of being "detriment" for the purposes of the Pereira test; it was necessary to distinguish between the two concepts.
In Griffin v Westminster City Council [2004] EWCA Civ 108Kennedy LJ (with whom Clarke and Jacob LJJ agreed) held that a significantly increased risk of suicide could amount to detriment. Similarly, a significantly increased risk of relapse into the abuse of Class A drugs could amount to detriment.
If the appellant were to relapse into drug use as a result of becoming homeless, that would be evidence that he was not coping for the purposes of the Pereira test.
If, contrary to the judgment of HHJ Mitchell, the reviewing officer had not concluded that the risk of relapse was incapable of constituting a harm or detriment, the reviewing officer erred in failing to give adequate or sufficient reasons to explain how he dealt with the question of drug relapse. Thus the reviewing officer had not make clear how the appellant’s risk of relapse into cocaine abuse was no different from that of any other homeless person. Inadequate reasoning was put forward in paragraph 34 of the judgment, which was the only paragraph dealing with the point.
Alternatively, if the reviewing officer concluded that other ordinary homeless persons were recovering Class A drug addicts at risk of relapse, that was perverse and/or was an unavailable conclusion on the statistical evidence.
Further or alternatively, if the reviewing officer had concluded that the appellant was not at risk of relapse that was a conclusion without regard to the impact of relapse whilst homeless upon his depression.
I reject these submissions in so far as they seek to attack the conclusions reached by the reviewing officer in paragraphs 22 - 25 of the decision letter that:
“[24] There will certainly be a risk of you relapsing in using drugs if you were street homeless. However, I am not satisfied that this is to the extent that would necessarily differentiate you from other ordinary street homeless people.
[25] Given the above, I am not satisfied that your drug use/history makes you vulnerable.";
Again I regard the approach taken by Mr Preston to the decision of the reviewing officer as over-analytical and technical.
In my judgment the statement by the reviewing officer that there would be a risk of relapse if the appellant were made street homeless, but not to an extent that differentiated the appellant from the ordinary street homeless person, was an implicit recognition that, in some circumstances, the risk of relapse might be capable of constituting a detriment, but that, on the facts of the present case, it was not detrimental or sufficiently detrimental to make the appellant vulnerable. That is consistent with the decision of the Court of Appeal in Griffin v Westminster Council at [16]. It follows that I do not agree with the judge's statement at paragraph 31 of his judgment that:
“The risk of relapse does not fall to be considered in the second question because the risk of relapse does not constitute harm. It is the drug use following relapse which is harmful. ”
if and to the extent that it suggests that risk of relapse might not constitute a detriment within the Pereira test.
In Crossley v Westminster City Council [2005] EWCA 602, counsel for the appellant accepted that a recovering drug addict at risk of relapse was not necessarily ‘vulnerable as a result of a special reason’, and counsel for the respondent accepted that such a person might fall within this class. Thus, there was a grey area within which judgments had to be made. In that case the Court of Appeal held that drug addiction by itself could not amount to a special reason, but when coupled with other reasons, such as a particular form of harm or a great deal of time spent in care without family support, it might render an applicant vulnerable. Sedley LJ, in giving the judgment of the court said at [13-15]:
"[13] In deciding on vulnerability for special reasons the local authority:
“must consider 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”: R v Camden LBC, ex parte Pereira (1998) 31 HLR 317, per Hobhouse LJ.
Such a comparison is, as Auld LJ pointed out in Osmani v Camden LBC [2004] EWCA Civ 1706, [2005] HLR 22, necessarily imprecise and highly judgmental.
[14] Jan Luba QC, for Mr Crossley, does not contend that a recovering drug addict at risk of relapse is necessarily (that is, as a matter of law) “vulnerable as a result of . . . [a] special reason”. Mr Jones for his part no longer contends that such a person cannot fall within this class. We accept and endorse both propositions; but they create what Mr Jones has called a grey area within which a decision may legitimately go either way. Accepting this too, as we do, it means in our view that judgments within the grey area, if they are not to be arbitrary, have to be made with especially careful regard for the statutory criteria and purposes and conscientious attention to the evidence.
[15] Two aspects of this obligation are highlighted by the present case. One is that what has to decided is a single composite question: see R v Camden LBC, ex parte Pereira (1998) 31 HLR 317, 330. It is not, in other words, a progression from vulnerability to its cause but an appraisal of whether the Applicant's condition, so far as it comes within the prescribed classes, makes him vulnerable. Here, for example, it fell for consideration whether not only his condition as a recovering addict but his experiences as a child in care made Mr Crossley vulnerable.
And, at [30] the court said:
“[30] Neither the present care-based claim nor the special reasons claim engages the difficult questions of legal and public policy which surround self-induced mental and physical states. It is no doubt for this reason that Mr Jones has not pursued the issue. Plainly drug addiction by itself, for all its personal and social consequences, cannot amount to a special reason for vulnerability which is capable of being addressed by housing. If there was a special reason here, it began with the fact that Mr Crossley, as a recovering addict, was vulnerable to relapse if he had to remain on the streets. So seen, the condition does not attract the policy questions raised by self-induced states. Nor, however, does it determine where in the grey area the case lies. What the decision-maker must consider with great care is whether there are other factors which do render the Claimant vulnerable for a special reason. One such reason might be that he had suffered some particular form of harm, such as the alcoholic Applicant in R v Waveney DC, ex parte Bowers [1983] QB 238, [1982] 3 All ER 727, 80 LGR 721. Another might be that he had spent a significant amount of time in care without family support.” [Emphasis supplied.]
In my judgment, the reviewing officer, on the evidential material before him, was clearly entitled to come to the conclusion that the appellant’s risk of relapse into Class A drug use did not make him any more vulnerable than an ordinary homeless person, or, in other words, that the appellant’s particular circumstances were not such as to differentiate him from the ordinary homeless person. Mr. Gallivan pertinently highlighted the reference to the “real world" by Arden LJ in Johnson v Solihull MBC supra at [18]and the fact that, unsurprisingly, many homeless persons have drug issues. I quote from [14] to [18] of her judgment:
“[14] She [the reviewing officer] also notes that he has an ability to remain abstinent from drugs, however she then goes on to deal with an important point, namely that he was taking heroin at the time of the review. I should say that that point is made without any alteration to the previous conclusion that the Appellant has the ability to remain abstinent from drugs. However, the review officer accepted in the light of the evidence that if the Appellant was street homeless, or even accommodated, that he would return to using drugs. She then goes on to say that even if he did slip back to using drugs, that would not necessarily be anything unusual in relation to homeless people. She refers to the Homeless Link's Survey of Needs and Provision (SNAP) 2010, which found that drug issues were among issues most frequently affecting homeless people, and indeed that the vast majority of homelessness services were directed to dealing with people who had problems with drugs.
[15]Mr Johnson accepts, fairly, that he cannot base this appeal on the assessment of a chance that he would return to using drugs if street homeless. That was an assessment which he accepts the authority was entitled to make in the circumstances of the case, and reference was made by the Respondent to Griffin v City of Westminster [2004] HLR 32 at para 13. We have not therefore been concerned with the first part of para 13, but rather with the second part of para 13.
[16] The thrust of Mr Johnson's submission is that passage in which the review officer referred to the Homelessness Link's Survey of Needs and Provisions (SNAP) 2010 demonstrates that the review officer was not taking the right comparator. He submits she should have taken as the comparator an ordinary person who was homeless. He further submits that the concluding words of para 41 from the judgment of Auld LJ in Osmani (which I have set out in para 6 of this judgment) support his argument. He submits that those words show that the proper comparator is an ordinary person without mental health or (in this case) drug issues.
[17] I do not accept that Mr Johnson's interpretation of the concluding words of para 41 of the judgment of Auld LJ is correct. If it were correct, the concluding words would have read “without any”, not “such”, “mental health conditions”. In my judgment, Auld LJ did not decide, or proceed on the basis of, the point which Mr Johnson advances.
[18] Mr Johnson's interpretation of the concluding words of para 41 is also in my judgment inconsistent with para 38(4) of the judgment of Auld LJ from that it is clear that the concept of an ordinary homeless person is necessarily an imprecise one. It falls to the Housing Authority to consider what features such a person would have. It is also clear from that paragraph that the question of who is an ordinary homeless person and what characteristics they have is a question to be assessed in the real world. It is sadly not surprising that many homeless persons have drug issues, or that many homelessness services are involved with dealing with those issues. Accordingly, in my judgment, it was open to the review officer to refer to this report as providing some assistance in determining the characteristics of the ordinary homeless person.”
It follows that I reject Mr Preston's alternative arguments that if the reviewing officer graded the risk but found that former drug users at risk of relapse were ‘run of the mill’ amongst the homeless, that was irrational. I also reject his arguments that there was not sufficient evidence to support the reviewing officer's conclusion that the appellant's past drug abuse and the risk of relapse did not render him vulnerable. The reviewing officer was entitled to rely on what the appellant himself had told him as set out in paragraph [22] of the review decision and the limited effect which the appellant's drug use had apparently had on the appellant's ability to cope with daily life.
In my judgment this is clearly a case where it would be inappropriate to interfere with what was clearly a careful evaluation made by the reviewing officer on the extensive evidence before him. Despite the fact that the reviewing officer expressed his conclusions as to the appellant’s risk of relapse to use of Class A drugs somewhat briefly, there was nonetheless adequate reasoning and evidence properly to support the reviewing officer's decision and to enable the appellant to understand it. Although the court is entitled to expect ‘proper, adequate and intelligible’ reasons - see R v Brent London Borough Council ex parte Baruwa [1997] 29 HLR, at 929 - the law affords a certain amount of latitude in how a reviewing officer may express himself in the time available.
Accordingly I would dismiss the appellant's second and third grounds of appeal.
Ground four:the correct comparator – the Johnson point
As I have already said, Mr Preston correctly recognised that, in the light of this Court's decision in Johnson v Solihull MBC supra, which is binding on us,it was not open to him to argue before this Court that the correct comparator had to be the ordinary person in the local authority’s district and could not be limited to the ‘homeless’ as a subset. Accordingly we heard no argument on the point and I express no view in relation to it.
Disposition
For the reasons set out above, I would dismiss this appeal.
Lord Justice Underhill
I agree that this appeal should be dismissed. As regards grounds 2 and 3 I have nothing to add to what Gloster LJ has said. But I have not found the issues raised by ground 1 easy, and I will accordingly give my own brief reasons.
Para. 13 of the decision letter is problematic in more than one way. It is common ground that the reviewing officer mis-stated the effect of the BMJ letter to which he referred; and it seems to me that there is also real force in Mr Preston’s criticisms, summarised by Gloster LJ at para. 37 of her judgment, of the officer’s reliance on the statistics which he took from the report of the Joseph Rowntree Foundation. But even if it is right, as seems plausible enough even in the absence of statistics, that the incidence of suicide is higher among homeless people than in the remainder of the population, I am not sure how that is relevant to the question which the reviewing officer had to decide. It might show only that a disproportionate number of people with the kind of history or personality that renders them specially liable to attempt suicide tend to be made homeless. The fact that there might be disproportionately many such people in the homeless population would not in itself mean that they were any the less vulnerable within the meaning of section 189 (1) (c) – any more than it would if there were a disproportionately large number of homeless people suffering from severe mental illness. The question of who constitutes the “ordinary homeless person” for the purpose of the so-called Pereira test cannot be answered purely statistically. I respectfully agree with the numerous judges who have now cautioned against substituting the guidance in Pereira for the language of the statute: see paras. 13 and 14 of Gloster LJ’s judgment.
However, uneasy though I feel about the whole of this aspect of the reviewing officer’s reasoning, I have come to the conclusion, in agreement with both Gloster LJ and Judge Mitchell, that his misguided statistical foray was not central to his decision. Reading para. 12 and the first half of para. 13 together, it seems adequately clear that his essential reasoning was that there was nothing in the Appellant's history or circumstances that showed that he was at special risk of attempting suicide if he was made homeless. That was a conclusion to which he was entitled to come on the material before him and for which he gave adequate reasons.
Lord Justice Floyd
I agree.