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 THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE KARSTEN QC)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 29 May 2002

1. LORD JUSTICE ROBERT WALKER: This is renewed application for permission to appeal on behalf of Mr Steven Taylor. Mr Taylor wishes to appeal from an order of His Honour Judge Karsten QC, made at the Edmonton County Court on 7 December 2001, dismissing Mr Taylor's appeal under section 204 of the Housing Act 1996 ("the 1996 Act"). The appeal under section 204 was from a decision of a review panel of the London Borough of Enfield ("Enfield") as the local housing authority. This would, therefore, be a second appeal falling within section 55 of the Access to Justice Act 1999 (see Clark v Perks [2001] 1 WLR 17, paragraph 13).
2. The issue throughout has been whether Mr Taylor had a priority need under the provisions as to homelessness in Part VII of the 1996 Act. This in turn depends on whether he was vulnerable within the meaning of section 189(1)(c) of the 1996 Act, which refers to vulnerability by reason of "old age, mental illness or handicap, or physical disability or other special reason."
3. That provision has a long history going back to the Housing (Homeless Persons) Act 1977. Guidance as to its application has been given by this court in a number of cases, notably R v Waveney District Council ex p Bowers [1983] 1 QB 238 and R v Camden LBC ex p Pereira (1998) 31 HLR 317. In the latter case Hobhouse LJ said at page 330:

"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."

4. That statement, and the further explanation to be found in the judgment of Hobhouse LJ, is often called "the Pereira test". A local housing authority must also have regard (see section 192 of the 1996 Act) to the Official Code of Guidance issued by the Secretary of State.
5. Mr Taylor is 50 years old. He has a long history of drug and alcohol abuse, which in 2000 finally led to the end of his marriage and his homelessness when he was excluded by an order of the Edmonton County Court from his matrimonial home in Southgate. He applied to Enfield as a homeless person in October 2000 when he was living in the back of a van but had been moved on by the police. Since 1995 he has been a client of the Enfield Community Drug and Alcohol Service. His drug and alcohol abuse problems appear to have been under control, although he was still on regular medication.
6. Mr Taylor has a number of medical problems. These include, not necessarily in order of gravity: he has poor circulation and bad varicose veins, which are caused by a cardio-vascular condition and regularly bleed; he is hepatitis C positive; he is in receipt of a disability living allowance with the mobility component at the higher rate, an assessment indicating that he has serious difficulty in walking; he also suffers from dyspepsia and insomnia.
7. These matters are recorded in a report dated 2 December 2000 which Enfield obtained from Mr Taylor's GP. That report was then referred to Enfield's Medical Assessment Officer ("MAO") who, on 2 April 2001, wrote:

"With the information provided by the GP, the client is not vulnerable.

Circulation/varicose veins - and the intermittent problems experienced by having this condition, does not prevent the client being able to secure his own accommodation."

8. On 6 April 201 an officer of Enfield's Homeless Persons Team wrote to tell Mr Taylor that Enfield was not satisfied that he was in priority need. The letter referred to the reports from the GP and the MAO and said of the latter:

"The returned opinion was that the varicose vein and poor circulation problems do not make you less able to secure your own accommodation. Therefore you would not be considered to be vulnerable on medical grounds."

9. It is common ground that it was wrong in law to equate vulnerability simply with inability, or reduced ability, to secure accommodation for oneself. That is one of the most important points clarified by this court in Pereira.
10. Mr Taylor asked for a review. He himself wrote a letter on 11 April stressing the seriousness of his medical condition as he saw it. His general practitioner wrote to Enfield on 25 April 2001 in the following terms:

"I understand that there are moves to make Steven Taylor homeless again. I am writing to express my concerns regarding this proposal. Mr Taylor is unwell and receiving medical care. He previously had a deep vein thrombosis and has subsequently suffered with bleeding, which can occur spontaneously, from large varicose veins on his legs. These are not the usual varicose veins but due to a blockage further up in the vascular system due to previous trauma of the veins. When these bleed it can be quite severe. He is also Hepatitis C positive. His mental health can be affected by mood swings.

I feel it would be very detrimental to his health and mental well being if he loses his home."

11. The review panel met on 7 June and announced its decision by letter on 12 June. The note of the proceedings on 7 June and the letter of 12 June are, so far as material, in almost identical terms. The review panel maintained the view previously taken that Mr Taylor was not vulnerable and did not have a priority need. The decision letter stated that the panel had considered whether Mr Taylor suffered from any physical disability which would render him vulnerable, less able to find and secure accommodation, or to keep such accommodation. That was, arguably, a repetition of the wrong approach made in the previous decision. However the Minutes and the decision letter then proceeded:

"The Panel had regard to a report from your GP, the Enfield Community Drug and Alcohol Service, a letter from yourself in support of this review dated 17 April 2001...."

(that should read 11 April)

"....and the opinion of the Council's Medical Assessment Officer. The Panel considered the various health problems you are experiencing and do not dispute that you are suffering from these illnesses. The Panel noted the prescribed medication you are taking to control the illnesses. Having considered all of the available information the Panel are satisfied that they are not of a severity to render you less able to find and secure accommodation or that you would suffer more harm or injury when homeless than a less vulnerable person."

12. The reasons referred to the GP's report, which was on a standard form prepared and provided by Enfield, but not in terms to the GP's letter of 25 April 2001. Mr Mike Bedford, a Temporary Accommodation Manager with Enfield, made a witness statement shortly before the hearing in the county court in which he sought to expand the evidence as to the reasoning of the review panel (which he had chaired). He said in this statement:

"I can confirm that the members of the panel are all familiar with the relevant test set out in the case of Pereira. That is the test the panel applied to the Defendant's application.

We therefore paid particular attention to the documents before us setting out the medical difficulties suffered by the Defendant. The panel considered amongst the documents the Disability Appeal Tribunal decision of 3rd February 1999. The panel noted that document was in a standard form and gave greater weight to the letters from the Defendant's GP dated 10 October 2000 and 25 April 2001, exhibited MB/1. The letters stated that 'the discomfort and problems with his legs affect his walking and he is currently receiving disability allowance.' Neither letter claimed or suggested that the Defendant would endanger his life or risk deterioration in his health by walking."

13. The quotation in the passage is from the earlier letter of 10 October 2000. The letter of 25 April 2001 does not seem to have been in exhibit MB/1, at any rate if that exhibit has been correctly reproduced in the appeal bundle. It is in Mr Taylor's exhibit which is where this court has found it. It seems to me strange, if the later letter was considered by the review panel, that it is not mentioned and commented on in the reasons. The letter of 25 April did not refer to danger of life but it did, unequivocally and in fairly strong terms, express the doctor's concern for Mr Taylor's health and mental wellbeing.
14. Before the county court judge it was not suggested that the letter of 25 April was not before the review panel. It would be wrong for this court to draw any inference from its apparent absence from Enfield's exhibit in the appeal bundle, a fact which may have several possible explanations.
15. The county court judge accepted that the letter of 25 April had been considered by the review panel. He took the view that the opinion which it had expressed was in any case not the answer to the question which the panel had to address. The judge discerned no error of law in the panel's approach. As to the attack based on perversity, he accepted the submission of counsel for Enfield that the case came nowhere near the requisite standard for saying that the decision was plainly wrong.
16. With some hesitation, I consider that it is not reasonably arguable that the judge erred in saying that there was no significant error of law in the approach adopted by the review panel. They were the decision maker, and the reasons of a busy and hard-pressed local housing authority review Panel are not to be subjected to the closest scrutiny and analysis. It seems to me that the reasons could have been much better expressed, but that the paragraph which I have read in full corrected a possible error at the end of the previous paragraph. I would not therefore grant permission to appeal on that ground.
17. As regards perversity, I am much less sure that the decision is not open to challenge. I do find the review panel decision very surprising, especially in the absence of any assessment, or even mention, of the doctor's letter of 25 April 2001 to which I have drawn attention. If this was not an application for a second appeal, I would readily grant permission to appeal. However, section 55 of the Access to Justice Act 1999 lays down a stringent test, which it is this court's duty to follow even if it sometimes feels some unease about doing so. Such a feeling of unease cannot be a compelling reason to grant permission in a case which would not otherwise be fit for a second appeal. Otherwise the statutory test would be eroded. The question is, therefore, whether a second appeal in this case would raise an important point of principle or practice.
18. Mr Sylvester Carrott, who has, most skilfully and economically, said all that could possibly be said in favour of this application, has suggested that local housing authorities have a need of clearer direction than they can derive from the decision in Pereira, which is at present rightly regarded as the leading judicial guidance on the subject. However, in my judgment, Pereira gives the clearest possible guidance and there is no real scope for arguing that the guidance is unclear and that the Court of Appeal should consider the matter again on that basis.
19. However important an appeal in this case would be to Mr Taylor (and I certainly do not overlook its importance to him), in the rather clinical terms in which this court must approach it, in my view a further appeal would, at best, be a fairly borderline issue of perversity on which different minds might reach different conclusions.
20. When Clarke LJ refused permission to appeal on paper, he expressed considerable sympathy with Mr Taylor. I do the same. However, for the reasons which I have indicated, I would, with some reluctance, refuse permission to appeal.
21. LORD JUSTICE CLARKE: I agree. I am conscious that I refused permission to appeal on paper. However, I have reconsidered the whole matter afresh in the light of the cogent submissions made by Mr Carrott on behalf of Mr Taylor.
22. As I said on paper, I have considerable sympathy for Mr Taylor and hope he will be able to find a permanent home. The problem facing Mr Taylor, as my Lord has indicated, is that section 55 of the Access to Justice Act 1999 has severely restricted the circumstances in which this court has jurisdiction to grant permission to appeal in a case of a second appeal. It can only do so if it considers that (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.
23. The principles which local authorities and the review panel must apply in a case of this kind are clearly stated in the R v Camden London Borough Council ex p Pereira, to which my Lord has referred. Mr Carrott submits that local authorities do not always apply the test in Pereira and that it would be beneficial for it to be clearly restated. He submits that in these circumstances the court can properly hold that an appeal would raise an important point of principle or practice.
24. I regret that I cannot agree. The principles are, to my mind, clearly set out in Pereira and so, therefore, is the practice which must be followed in this class of case. No other compelling reason for the Court of Appeal to hear the appeal has been suggested. I have therefore reached the conclusion that the applicant cannot satisfy the test set out in section 55.
25. I would only add that I hope that any consideration of a future application to the authority by Mr Taylor will have in mind the views expressed by my Lord, with which I entirely agree, albeit in the context of all the circumstances which may then arise.
26. However, for those reasons, in addition to those given by my Lord, I agree that the application must be refused.
Order: Application refused. Detailed assessment of publicly funded applicant's costs. Transcript of judgment to be provided at public expense.