England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE TUCKER

		Royal Courts of Justice Strand London WC2
		20th May 1998

LORD JUSTICE HOBHOUSE:

This appeal raises a question of the correct interpretation of the definition of a person having a priority need for accommodation under s.59(1) paragraph (c) of the Housing Act 1985. The equivalent provision appeared in earlier Housing Acts and is now to be found in s.189(1) of the Housing Act 1996. Section 59 provides:

"(1) The following have a priority need for accommodation-

(a) a pregnant woman or a person with whom a pregnant woman resides or might reasonably be expected to reside;

(b) a person with whom dependent children reside or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

(2) The Secretary of State may by order made by statutory instrument-

(a) specify further descriptions of persons as having a priority need for accommodation, and

(b) amend or repeal any part of subsection (1).

(3) Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.

(4) No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament."

In practice paragraphs (a) (b) and (d) have not proved difficult to apply: each of those paragraphs can be applied by asking and answering a simple factual question. Paragraph (c) is different. It involves a question of judgment and causation. It is necessary to assess whether a person is "vulnerable". It is also necessary to consider whether such vulnerability is as a result of one of the four identified causes or some other "special reason". Whether one approaches the question of construction by looking at the language of the paragraph as a composite whole (see the discussion in ex parte Kihara 29 HLR 147) or by considering the question of vulnerability and cause separately, the problems of interpretation remain.

These problems are not made easier by the statutory context. Within s.59(1) there is a potential contrast. Paragraphs (a), (b) and (d) do not touch upon the ability of a person to find accommodation without assistance. A pregnant woman has a priority need for accommodation simply by reason of her being pregnant. It is irrelevant to her qualifying as a person with priority need that she has an unimpaired ability to find and obtain accommodation suitable to her needs. By contrast the word "vulnerable" used in paragraph (c) at least potentially may raise the question whether there is some special reason which peculiarly handicaps the relevant person in obtaining suitable accommodation; indeed, this may be the primary source of his vulnerability.

In the broader statutory scheme of Part III of the 1985 Act (and Part VII of the 1996 Act), the question of priority need arises at the initial stage of the categorisation of an applicant for housing. It arises separately from the question whether a person is homeless: it assumes that the fact that he is homeless has already been established. Also, it arises before, and potentially independently of, deciding how his need for housing is to be met and how the obligation of the housing authority is to be discharged: see ss.65 and 69 and the associated sections. Thus there are a number of alternative ways in which the housing authority may discharge its obligations and it is in this context in particular that the concept of "suitable" accommodation is used. So, here again, one of the elements which might be thought important to the vulnerability of a person is the subject of specific statutory provision which only becomes applicable after the person has been assessed as a qualifying person in priority need.

A further consideration is the general purpose of the legislative scheme. In O'Rourke v Camden LBC [1990] 3 WLR 86 at p.90, Lord Hoffmann said:

".... the Act is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest; because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services."

In Ex parte Puhlhofer [1986] AC 484 at p.517, Lord Brightman said:

"It is an Act to assist persons who are homeless, not an Act to provide them with homes. ... It is intended to provide for the homeless a lifeline of last resort; not to enable them to make inroads into the local authority's waiting list of applicants for housing. Some inroads there probably are bound to be, but in the end the local authority will have to balance the priority needs of the homeless on the one hand and the legitimate aspirations of those on their housing waiting list on the other hand."

(See also ex parte Awua [1996] 1 AC 55 at 72 and ex parte Kihara 29 HLR at 155.) It, thus, has to be borne in mind that any priority system involves striking a balance between the needs of one group of homeless persons and another. To grant priority to one person involves the deferment of another.

S.71 of the 1985 Act requires the housing authority to have regard, in the exercise of their functions, to the guidance given by the Secretary of State. Over the years various editions of the Guide have been issued. For the period with which we are concerned in the present case the relevant edition is the revised third. In paragraph 6.8, under the heading "Is The Applicant Vulnerable?", it says:

"The assessment a homelessness officer must make when deciding whether an applicant is vulnerable may be a complex one. The critical test when assessing vulnerability must be whether the applicant is able to fend for him/herself so that s/he will suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects."

In the context of old age, the guidance directs the authority to consider the extent to which the age of the applicant makes it hard for him to fend for himself (paragraph 6.9). In relation to mental illness or handicap or physical disability, the guidance states that the authority should consider the "relationship between the illness or handicap and the individual's housing difficulties" (paragraph 6.10). In relation to "victims of violence or abuse or sexual and/or racial harassment, the guidance demonstrates the breadth of the factors to be taken into account - "authorities should secure wherever possible that accommodation is available for men and women without children who have suffered violence at home or are at risk of further violence if they return home".

Paragraph (c) was used in s.2(1) of the Housing (Homeless Persons) Act 1977 as part of the definition of priority need. In 1982 the Court of Appeal had to consider an application for judicial review by a person who was an alcoholic and had in 1980 been hit by a motor vehicle and suffered a severe head injury. R v Waveney Council, ex parte Bowers [1983] 1 QB 238. Mr Bowers had claimed that he had a priority need. It was not considered that he was entitled to rely upon his own alcoholism but this was not an answer in his case because he had also suffered the brain injury. The Court of Appeal reserved its judgment and the judgment of the Court was delivered by Waller LJ. It was clearly intended to be definitive and has since been used in the Guide. Waller LJ said (at pp. 244-5):

"The question we have to consider is whether or not the applicant is vulnerable and secondly whether the vulnerability is as a result of old age, mental illness or handicap or physical or other special reason. Dealing first with the meaning of "vulnerable", vulnerable literally means "may be wounded" or "susceptible of injury". (See the Concise Oxford Dictionary, 6th edition (1976), p.1305.) In our opinion, however, vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects."

He referred to the then current edition of the Guide and the request that authorities should "take a wide and flexible view of what constitutes substantial disability, recognising that this will depend on individual circumstances". In commenting upon the position of Mr Bowers, he said:

"There can be no question here but that the applicant is vulnerable. The Judge accepted that there was a degree of vulnerability. Furthermore it is reasonably clear that the degree of vulnerability increased as a result of serious accident with severe brain injury in the early summer of 1980. Before that, although he had a drink problem, the applicant was able to cope, living in lodgings. Since the accident nobody will give him lodgings and all those who have considered his case take the view that he needs either "support" or "help" or "a degree of shelter" or "sheltered accommodation".

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 sixty five 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.

....

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."

The Court of Appeal allowed Mr Bower's appeal.

The formulation adopted by the Court of Appeal - "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" - was considered in later cases at first instance. In ex parte Sangeramano 17 HLR 94, Hodgson J said (at p.97):

"The vulnerability to be considered is vulnerability loosely in housing terms or in the context of housing."

In ex parte Carroll 20 HLR 142, Webster J had to consider the case of an applicant who was said to have suffered "a major and irreversible handicap" as a result of a childhood injury but who also was in the habit of drinking six or seven pints of beer a day. Webster J referred to what Hodgson J had said and its approval by Russell J in ex parte Banbury 19 HLR 76. At p.146 Webster J accepted the submission "that the effect of that gloss upon the section is in practice to extend the meaning given to the word "vulnerable" by Waller LJ as if it reads 'less able to fend for oneself when homeless or in finding and keeping accommodation'." Later in his judgment (at pp.150-1) Webster J adopted and applied that criterion.

It will thus be observed that the relevant consideration has been expanded beyond that of ability to fend for oneself when homeless so as to include considerations of ability to find and keep accommodation. This approach was further developed by Mann J in ex parte Di Dominico 20 HLR 153. The applicant was an epileptic who required careful medical supervision. The local authority nevertheless did not regard her as vulnerable. Mann J declined to grant judicial review. He pointed out (following ex parte Pulhofer) that the decision was one for the housing authority. He said:

"Vulnerable in my judgment means vulnerable in the housing market. There is no indication here of difficulty in finding accommodation or of maintaining the need for special accommodation. There is not one word of evidence upon those matters."

Thus, Mann J treated the ability to find accommodation, if necessary special accommodation, as decisive.

This decision was referred to by Simon Brown LJ in Ortiz v City of Westminster 27 HLR 364 when refusing leave to appeal from a judgment of Sir Louis Blom-Cooper QC refusing judicial review. The applicant for leave was a twenty four year old woman with a history of drug addiction and alcoholism. There was in fact suitable hostel accommodation available which had been offered to the applicant at the relevant time and it was hard to see why she needed the remedy of judicial review. The application for judicial review was based upon a hypothesis which did not correspond to the facts. Simon Brown LJ summarised her argument:

"The essence of her case is that once she established that she had a particular need for suitable accommodation and would suffer more than most if she failed to acquire it, then that of itself was sufficient to establish that she was vulnerable within the meaning of the legislation so as to give her a priority need."

Having referred to and quoted from the judgment of Mann J in ex parte Di Domenico, Simon Brown LJ said:

"In my judgment that approach is plainly right. In order to satisfy the test of vulnerability, as explained in the decision in ex parte Bowers, an applicant must in my judgment surmount two hurdles. First, he (or she) must show that to some material extent he or she is less able to obtain suitable accommodation than the ordinary person and [emphasis supplied] secondly, that if he fails to obtain it, then he will suffer more than most. It is in my judgment the first of those hurdles which the applicant so conspicuously fails to surmount in the present case. The position is strikingly different from that in ex parte Bowers itself where, as the judgment recorded: "since the accident nobody will give him lodging ...". Here, for the reasons already indicated, there is no factual basis upon which the authority could conclude, let alone were bound to conclude, that this applicant would suffer peculiar difficulty in obtaining suitable accommodation."

This dictum of Simon Brown LJ was not a necessary part of his refusal of leave to appeal. It contains a feature which was new (but implicit in what Mann J had said) that there are two "hurdles" both of which the applicant must surmount - the first relating to his disadvantage in obtaining accommodation and the second relating to his disadvantage if he does not obtain accommodation. He was saying that he must succeed on both points in order to establish the requisite vulnerability.

However, in Kihara (a case of lack of financial means), Simon Brown LJ expressed doubts as to the correctness of what he had said in Ortiz:

"Without going into the details of the case it is perfectly clear that the decision to refuse leave was correct on the facts. It is equally evident that in the passage cited I was not seeking to establish a new principle of law; it would, indeed, have been wholly inappropriate to have done so in the course of a short hearing refusing leave. It now seems to me less than obvious that the earlier cases support the view I there expressed, or that it is necessarily justified in principle. Why should an applicant invariably have to satisfy both limbs of this test? In particular may not the first limb on occasion have more to do with whether or not the applicant is truly homeless (or indeed, as perhaps in Ortiz itself, with whether or not the local authority have complied with their Part III housing duties) than with vulnerability? If, as we suggested in the course of the present hearing, courts are presently paying attention to Ortiz, I hope they may now cease to do so at any rate until further argument on the point." (p.162)

The apprehension expressed by Simon Brown LJ that what he had said in Ortiz was liable to mislead founds the primary argument that has been advanced in the present case in support of the application of Mr Pereira for the judicial review of the decision of the London Borough of Camden declining to treat him as a person with a priority need for accommodation. However before turning to the particular facts of the present case and the arguments which have been deployed before us it is appropriate to refer to one more authority which provides clarification of what was said in Bowers.

In the Scottish case Wilson v Nithsdale District Council [1992] SLT 1131, Lord Prosser was concerned with the case of an eighteen year old girl who had been sexually assaulted, was unable to return home, had been expelled from a hostel for suspected theft and who was said to be at risk of further sexual assault if not provided with suitable accommodation. Lord Prosser referred to the case of Bowers and an earlier Scottish case Kelly v Monklands District Council ([1986] SLT 169), and the special factors seen in those cases seen as making the applicant "vulnerable by comparison with someone older or with a less significant background". He commented:

"The 'comparative' approach to vulnerability adopted in these cases cannot in my view be pushed to its logical limit; the intention cannot be that every homeless person will be held vulnerable for special reason merely because one other such homeless person might by comparison seem less vulnerable. The comparison must in my view be with some assumed average or normal run-of-the-mill homeless person. But if there is a lesser ability to fend for oneself, against that comparison, in a housing context, so that injury or detriment would result when such an ordinary homeless person would be able to cope without harmful effects, then in my opinion vulnerability for special reason is established for the purpose of the Act, and nothing more special (far less anything odd or exceptional) is required."

This decision was cited with apparent approval by Neill LJ in Kihara. In his judgment Neill LJ also questioned whether it was helpful to break the test down into the two stages - vulnerability and cause - as suggested by Waller LJ in Bowers (p.156), though Simon Brown LJ (at p.161) doubted whether it made much difference. However, as I have previously observed, the question raised in the Kihara case was whether lack of financial means could be said to fall within the ambit of paragraph (c).

Mr Pereira's Application:

Mr Pereira who is now aged forty two, rising forty three, has had an unhappy history of drug addiction and criminal offending. However, shortly after he was last released from prison in July 1994, he decided to do something about his drug addiction. He deserves considerable credit for the effort that he has made first in breaking his addiction and then maintaining his freedom from drug-taking. The recognition of the credit and support which he merits in this exercise is a recurring feature of the representations which have been made in an attempt to persuade Camden Council to treat him as a person with a priority need. After living at two addresses between August 1994 and February 1996, Mr Pereira made his application to Camden Council to be treated as a homeless person having a priority need. That application was made on the ground that he was psychiatrically impaired and, as a former drug addict, liable to relapse if living in the company of current drug users.

A report was obtained from the general practitioners' partnership with which he was registered. Dr Bullock referred to the fact that he had been completely drug free for eighteen months and

"if given a chance of housing in a reasonable environment (away from hostels which feature largely in the drug culture) he stands an excellent chance of permanent success. .... Prognosis is very good providing Mr Pereira is not forced back into an environment where he is likely to be obliged to mix with people who know him as an ex-user and will therefore be trying to coerce him into using drugs again, e.g. hostel accommodation. Mr Pereira presents himself as a well-dressed well-orientated person enthusiastic about starting again. His conversation is appropriate and he is realistic in his expectations for the future. He appears to be of normal intelligence, and an affable character."

Under these circumstances it is not surprising that his application was refused on 13th March 1996. The refusal was signed by a Council assessment officer Cheryl Olsen. She referred to the report which the Council had received and the relevant social factors and concluded that he was not entitled to be treated as a person in priority need. It appears that he had been given temporary accommodation pending the decision of the Council, which accommodation was then withdrawn. He was offered further advice and invited to make a fresh application should his circumstances change.

Following his receipt of this refusal, Mr Pereira was able to marshal a large body of support for his case. I quote from paragraph 9 of his affidavit sworn on 15 July 1997 -

"I made an internal appeal against Camden's decision that I was not in priority need. I supported my appeal with reports from Niki Dexter of the Blenheim Project dated 19th March 1996, Peter Unwin RMN dated 25th March 1996 and Vicky Schwartz dated 26th March 1996 both of the North West London Mental Health NHS Trust, Dr Edmundson (my general practitioner) dated 29th April 1996 and Jackie Foster of Hampstead Community Drug Services dated 25th April 1996."

The thrust of all this evidence was the need of Mr Pereira for suitable accommodation. Dr Edmundson said: "clearly, he is medically vulnerable in view of his previous drug addictions and I am quite sure that the stress of homelessness would only increase the likelihood of a relapse." Miss Schwartz emphasised the desirability for him of "procuring a stable and secure home base". One submission went further. It was from Miss Foster, a drug/HIV worker. She refers to how he had come into her centre requesting to see a psychiatrist as he was concerned about his vulnerability with regard to his homelessness and strong concerns of relapsing back into a drug-using culture. He felt angry and rejected with the continuous rejection he received from the housing department. She reports:

"Mr Pereira was assessed by our locum psychiatrist Dr Enrico Cementon on 03.04.96 who felt that Mr Pereira has a personality disorder which would be likely to lead to increased vulnerability and could easily lead to Mr Pereira relapsing."

His appeal was considered by Mr Steven Tingley, a principal assessment officer of the Council. On 10th May 1996, he wrote to Mr Pereira. He referred to the now substantial amount of information that was in his case file including the material submitted by Mr Pereira in support of his appeal. He referred to the government's published guidance and quoted from the relevant sentence. He referred to the recommendation of the medical assessment officer on medical grounds. Mr Tingley saw no reason to deviate from the view that the statutory test was not met. Accordingly the appeal failed.

Further representations were then made to the Council through the local MP Miss Glenda Jackson and through solicitors acting on behalf of Mr Pereira. The upshot was the Council said that they were willing to reconsider the matter if a psychiatric report could be submitted. They contemplated that Dr Cementon would provide a report but in the event it had to be provided by a Dr Riccio. His report dated 3rd December 1996 was based upon a consideration of the file including all the submissions and supporting evidence made or provided by Mr Pereira and an interview with Mr Pereira. Dr Riccio summarised the history as it appeared from the documents. As regards the interview he observed:

"Mr Pereira presented himself to the interview on time. He was carefully but neatly and cleanly dressed. He was pleasant, co-operative and gave very coherent and articulate account of himself. His mood was reactive and although somewhat anxious there is no evidence of it being depressed or elated. I found no evidence of any symptoms suggestive of major psychiatric disorder such as delusions or hallucinations.

Throughout the interview I formed the impression that Mr Pereira's intellectual functioning is in the average range. His attention, concentration, short and long term memory all appear to be grossly intact. Mr Pereira has good insight into his past and present difficulties and appears to be well-motivated to continue to work on his rehabilitation."

However, his conclusion was that:

"Mr Pereira has been suffering for the past twenty five years from a severe poly-drug dependence syndrome. The dependence syndrome is recognised to be a combination of physical and psychological symptoms. Although Mr Pereira has successfully weaned himself off drugs and has been clean for the past two years and three months, there is no doubt that psychologically he still is struggling with the effects of his dependence syndrome. Indeed, the International Classification of Diseases, tenth revision, makes provision for this and Mr Pereira fits the diagnosis of poly-drug dependence syndrome, currently abstinent (F.19.20). ....

There is no doubt in my mind that Mr Pereira remains a highly vulnerable individual from a psychiatric point of view. He requires all the help and support he can receive if he is to make a success of the remarkable recovery that he has made over the last twenty four months. .....

.... The condition of homelessness is placing Mr Pereira under immense psychological stress thus adversely affecting his efforts to rehabilitation and exposing him to clear risk of relapsing into a self-destructive and drug-taking behaviour which would have disastrous consequences for him as well as society at large."

Dr Riccio also expressed the opinion that Mr Pereira met the statutory criterion for priority need. That was of course was for the Council to determine on all the evidence available to it including the medical evidence supplied by Dr Riccio as a qualified consultant psychiatrist.

There was then some unfortunate delay. But in May 1997 the case was referred to one of the Council's medical assessment officers, Pauline Davis. She re-examined the evidence, including Dr Riccio's report. She noted that Mr Pereira had been drug-free for the past two years and had no symptoms of major psychiatric disorder and was cognitively grossly intact with good insight and extremely well motivated. He was still receiving counselling from Narcotics Anonymous. In response to the question whether he was "vulnerable if homeless", she answered "no". Miss Davis's report and recommendation dated 4 May 1997 was considered by Miss Miller, a senior assessment officer of the Council. On 13 May 1997, on behalf of the Council, she wrote to Mr Pereira's solicitors referring to the various assessments that had taken place and the fact that the further assessment by the Council's medical assessment officer had put forward a recommendation that Mr Pereira was not vulnerable if homeless. Miss Miller said:

"Having considered the recommendation of the medical assessment officer along with all other information concerning Mr Pereira that has been supplied and that this authority has obtained from its own enquiries, I have reached the decision that Mr Pereira does not have a priority need for accommodation and therefore this authority is unable to offer him any accommodation."

The letter also apologised for the delay that had occurred and pointed out that a number of medical assessments had been made. She also pointed out that housing advice centres were available to advise him further.

It is under those circumstances that Mr Pereira has applied for judicial review of the decision of 13th May 1997.

The Application for Judicial Review:

The application was originally made on the grounds that the reasons given by Miss Miller were inadequate, that there had been a breach of natural justice in that (it was said) the Council should have given Mr Pereira an opportunity to make further representations, that the decision was Wednesbury unreasonable and that the decision failed to take into account the applicant's future prognosis. The affidavit in support of the application was sworn on 15th July 1997. It brought the information about the Applicant's situation up to date:

"I am currently being put up by a female friend of mine, but absence of any permanent accommodation is severely depressing me. I currently practice twice a day sahaja yoga which is a form of deep meditation. Although this helps, I still have mood swing and panic attacks. After having my most recent appeal refused by Camden I became very depressed and was close to taking drugs again. I was only prevented from doing so, because some close friends pulled me together. It is only with stability and continuing support that I can hope to rehabilitate myself permanently. A critical part of a stable background is having a place I can call home. Since May 1997 I have moved house three times."

It is to be observed that this account provides very limited, if any, support for his case.

In response to the application (for which leave was given by Mr Justice Potts in August 1997), the Respondent Council lodged affidavit evidence to support their case that they had had reasonable grounds for the decisions at which they had arrived and that they had acted fairly and conscientiously. These affidavits were sworn by Miss Pauline Davis who was responsible for the 4th May 1997 assessment and by Miss Miller who was responsible for the decision letter of 13th May 1997. The contents of these affidavits led the Applicant to amend his grounds. As developed before Tucker J and before us, he submitted that the affidavits disclosed a wrong application of what Simon Brown LJ had said in Ortiz, that there had been procedural confusion as between Miss Davis and Miss Miller which led to unfairness, and that Miss Miller had taken immaterial considerations into account in that she said that she had taken into account "the general need for housing in the Borough as a whole" and had "compared Mr Pereira's needs with others who had applied for housing". The Wednesbury ground was also still relied upon.

The application was heard by Mr Justice Tucker on 15th December 1997. He refused judicial review. Having reviewed the evidence and the authorities he concluded that in the light of what Simon Brown LJ had said in Kihara, he was not bound by what Simon Brown LJ had said in Ortiz. He said:

"Without the benefit of authorities, I would have been inclined to adopt the following test, when assessing vulnerability: 'Is the applicant more likely to suffer from or be affected by the state or condition of homelessness than other homeless persons might be?' Mr Jack [for Mr Pereira] would wish to adopt that test and submits that it is the proper test to apply."

Tucker J however preferred the formulation:

"Thus, vulnerable in the context of the Housing Acts means "less able to fend for oneself when homeless or in finding and keeping accommodation, so that injury or detriment will result, when a less vulnerable person will be able to cope without harmful effects."

He therefore asked himself whether that was the test which the Council had applied and concluded that it was. He did not accept that Miss Davis had applied the test set out in Ortiz nor did he accept the submission that her conclusion was Wednesbury unreasonable. He rejected the arguments of confusion and procedural unfairness. He expressed sympathy for the Applicant but concluded -

"I am afraid that I cannot criticise the respondent for the decision which they reached. There was in my opinion no factual basis upon which they could conclude that the applicant will suffer any peculiar difficulties in obtaining accommodation, or that he is less able to fend for himself than any other ordinary (if I may use that word) homeless person."

The Appeal:

In opening the appeal Mr Zelin who appeared in this Court on behalf of Mr Pereira took the same points as had been taken by Mr Jack in the Court below. He confirmed that the current position of Mr Pereira was that he is still drug-free and is living with friends. The position remained the same as stated in his affidavit of last July save that since then he had lived at three further addresses. The thrust of what Mr Pereira wished to achieve was a suitable permanent home of his own.

As the argument was developed before us it became clear that the primary point upon which he was relying was the submission that Miss Davis and, indirectly, Miss Miller had proceeded on the basis of what Simon Brown LJ had said in Ortiz and had therefore applied, or probably had applied, the wrong legal test in evaluating Mr Pereira's application to be treated as a person with a priority need. In her affidavit dated 25th September 1997, Miss Davis explained that she had fully accepted the diagnosis of Dr Riccio. However, on the medical opinion of Dr Riccio, she concluded, notwithstanding the other opinions that he had expressed, that Mr Pereira was not in fact vulnerable in terms of the Act. She correctly observed: "the fact that someone is, or has been a drug-user does not necessarily make them vulnerable under the Act. I have to consider what effect that condition that condition has on their ability to function and cope." The concluding three paragraphs of her affidavit read -

"23. For the purposes of assessing his vulnerability I was concerned less with the diagnosis that had been given to him and more to see how it affected his ability to cope with life pressures generally including the demands of seeking and keeping accommodation.

24. I formed the view that Mr Pereira would have been, unlike other persons I have assessed, able to obtain information about housing, to organise himself to search for housing and to deal with landlords for example. I formed the opinion that he was able to find accommodation as well as any other person. I found that he was no less able to fend for himself than any other person in spite of his diagnosis.

25. I had to apply the test of whether Mr Pereira is so affected by that condition he was less able to fend for himself so that he will suffer injury or detriment in circumstances where a less vulnerable person would be able to cope. I concluded that he was not."

What she says in paragraph 23 is close to, but not the same as what Mr Justice Webster had said. She however uses the phrase "including the demands of seeking and keeping accommodation". Similarly, paragraph 25 is close to or the same as the Bowers test. The difficulty for the Respondents is that in paragraph 24 she appears to be applying the criterion adopted by Simon Brown LJ in Ortiz and to treat that as decisive. It is in paragraph 24 that she actually states the assessment that she made - "I formed a view" - "I formed the opinion that". It appears that she treated as decisive the fact that Mr Pereira was not disadvantaged in his ability to search for and find accommodation. This appears to be the decisive factor which she takes into account. This reading of her affidavit is supported by the correspondence of her language to what Simon Brown LJ had said in Ortiz and her use of the word "including" in her adaptation of what had been said by Webster J. I therefore read her affidavit as involving an application of the Ortiz approach and therefore as, probably, involving an error of law.

The affidavit of Miss Miller sets out at considerable lengths all the material which she had had to consider including the report of Dr Riccio and the recommendation of Miss Davis. She says she also discussed the case with Cheryl Olsen and gained from her an impression which is consistent with the reports which she had read. She concluded:

"I did not consider that he [Mr Pereira] faced more difficulties than any person who is currently homeless and in need of accommodation."

This conclusion appears to follow the same reasoning as that of Miss Davis. It appears to focus upon the ability of Mr Pereira to find accommodation.

I conclude that the decision of the Respondents was probably based upon a use of the Ortiz test and did not independently consider the vulnerability of Mr Pereira as a homeless person. It follows that in my judgment that Mr Pereira has established with a sufficient degree of probability that the Council applied a wrong legal test when making its determination. In my judgment the determination should be quashed upon this ground.

I do not accede to the other grounds upon which Mr Pereira's application has been made. The decision was not Wednesbury unreasonable. There were grounds upon which the Council could conclude that he was not vulnerable within the terms of paragraph (c). An opinion had been expressed by Dr Riccio but the decision was for the Council and there was evidence the other way. The view expressed by Miss Davis in the document dated 4th May 1997 was a not unreasonable one. It cannot be said whether or not she would have arrived at the same conclusion if she had not been influenced by the Ortiz test. She might or she might not. The reasonableness of her view is supported by the fact that one year on Mr Pereira has apparently still not suffered any ill-effects. He has been able to cope. He has not reverted to the use of drugs.

Nor do I consider that there was any unfairness or confusion involved in the decision taking process in May 1997 (beyond that involved in the use of the Ortiz test). Neither Miss Davis nor Miss Miller proceeded on a basis of the rejection of the medical opinion of Dr Riccio. The relevant question was putting it in the context of the other evidence available to the Council and making an assessment in the terms of paragraph (c). There was no need or obligation to invite further submissions from Mr Pereira.

The final criticism was based upon paragraph 39 of Miss Davis's affidavit which read:

"When I made my decision and was considering his vulnerability in the light of his history of drug dependence I also took into account the general need for housing in the Borough as a whole. I also compared Mr Pereira's needs with others who had applied for housing. I considered other persons in similar circumstances and found him to be no more vulnerable, indeed less vulnerable than other persons who had been drug-free for a period of time even those who had presented with current drug problems and still been found not to be vulnerable and not in priority need. Unfortunately we cannot offer housing to everyone who applies. We have a limited housing stock, and must ensure that accommodation is available for those who really are vulnerable under the Act."

This paragraph can be and has been criticised. But it does not in my judgment disclose any ground for the judicial review of Miss Davis's determination. Much of the material which had been submitted on behalf of Mr Pereira was directed to making out a sympathetic case on his behalf. The thrust of this paragraph is to point out that, whatever sympathy one might feel for Mr Pereira, the Council cannot properly under the Act nor in fairness to other applicants give him priority in relation to the limited housing available in Camden over other applicants. I do not read this paragraph as saying that even if she had considered that he met the statutory criterion for priority she would have failed to recognise his priority.

Conclusion:

In my judgment the determination of 13th May 1997 that Mr Pereira was not a person having a priority need for accommodation must be set aside and the Council should be required to make a fresh determination if Mr Pereira chooses to apply for one taking account of all the available evidence including any further evidence and submissions which Mr Pereira may chose to place before the Council.

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.

LORD JUSTICE WALLER: I agree.

LORD JUSTICE ROBERT WALKER: I also agree.

Order: Appeal allowed with costs. Declaration of mandamus ordering respondent to reconsider whether applicant is in priority need. Legal aid taxation. [Not part of the approved judgment]