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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 154
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P1138/06
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OPINION OF LORD GLENNIE
in the Petition of
CHARLENE CLAIRE
MORGAN
Petitioner;
against
STIRLING
COUNCL
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Govier; Balfour &
Manson
Responents: Upton; Dundas & Wilson
10 October 2006
[1] In
this petition for judicial review, the petitioner seeks reduction of certain
decisions made by the respondents in May 2006 in so far as they determine (i) that she does not have a priority need for accommodation
and (ii) that the respondents are not required to secure that permanent
accommodation is made available to her.
She also seeks certain ancillary relief.
[2] In
terms of section 31(2) of the Housing (Scotland) Act 1987 ("the Act") as
amended, the respondents are, in certain circumstances, required to secure that
permanent accommodation becomes available for occupation by a homeless person
for whom they are responsible. Those
circumstances are (a) that they are satisfied that the homeless person has a
"priority need" and (b) that they are not satisfied that he or she became
homeless intentionally. The respondents
accept that the petitioner is homeless but they have intimated that they are
not satisfied that she has a priority need.
This is the decision which is the subject of challenge in this
petition. In light of their assessment
that the petitioner is not shown to have a priority need, the respondents say
that the question whether the petitioner became homeless intentionally does not
presently arise for decision; but they reserve their right to consider that
question if I should decide the present action against them.
[3] Section
25(1) of the Act (as amended) identifies categories of persons who have a
priority need for accommodation. Amongst
those identified in sub-paras.(a)-(i) of that section are pregnant women, men or women with
dependent children, persons who are "vulnerable" for a number of specified and
other reasons, certain categories of young people, people threatened with
religious or racial violence or harassment and those running the risk of
domestic abuse. The petitioner falls to
be considered under sub-paragraph(c), which identifies the "vulnerable"
category in the following terms:
"(c) a person who is
vulnerable as a result of -
(i) old age;
(ii) mental
illness
(iii) personality
disorder;
(iv) learning
disability;
(v) physical
disability;
(vi) chronic ill
health;
(vii) having suffered a
miscarriage or undergone an abortion;
(viii) having
been discharged from a hospital, a prison or any part of the regular armed
forces of the Crown;
(ix) other special
reason;"
The word "vulnerable" is not
defined in the Act, but it is, I think, clear that it means vulnerable to being
left homeless, i.e. unable to cope with homelessness.
[4] It
can plausibly be said that everyone is to some extent vulnerable when made
homeless. But it was clearly not the
intention of parliament that every homeless person should be considered
"vulnerable" within this sub-paragraph, since that would mean that every
homeless person would be regarded as having a priority need and would render
otiose the detailed categorisation of persons having such needs to which I have
referred. Accordingly, in assessing
vulnerability for the purposes of section 25(1)(c),
a comparative assessment requires to be carried out: see Wilson v
Nithsdale District Council 1992 SLT 1131.
The comparison is between the applicant and the "assumed average or
normal or run-of-the-mill homeless person", to use Lord Prosser's not
altogether felicitous phrase in that case (at p.1134A). The task for the respondents, in dealing with
the petitioner's application, is to ask themselves whether the petitioner, when
homeless, will be less able to fend for herself than an ordinary homeless
person; so that, in consequence, she is more likely to suffer injury or
detriment than the ordinary homeless person.
It is implicit in this formulation that the ordinary homeless person,
being ex hypothesi
less vulnerable and better able to fend for him or herself, will be better able
to cope without suffering in that way.
The inability to cope, and the injury or detriment likely to be
suffered, may take different forms and manifest themselves in different
ways. All the circumstances must be
taken into account. But before the
petitioner can be said to fall within the definition of "vulnerable" for the purpose
of section 25(1)(c), it must appear that her ability to fend for herself
whilst homeless is more likely to result in injury or detriment to her than
would be the case with an ordinary homeless person.
[5] In
putting the test in this way I have had regard not only to the Opinion of Lord
Prosser in Wilson v Nithsdale District Council but also to
the judgments of the Court of Appeal in R
v London Borough of Camden ex parte Pereira (1998) 31 HLR 317 (in
particular the last paragraph of Hobhouse LJ's judgement), and Griffin
v Westminster Council [2004] HLR 32 536. Despite what is said in the
English cases, I prefer to use the expression "is more likely to suffer injury"
and "is more likely to result in injury" rather than "will suffer" or "will
result in injury". Such a test seems to
me to be more consonant with the nature of the assessment which the local
authority requires to make in terms of the Act.
To insist on a finding that suffering or detriment will result,
before the applicant can be considered to have a priority need, seems to me to
place the bar too high. Nor do I think
that certainty is required by the wording of the section. All that the particular sub-paragraph
requires is that the applicant is vulnerable.
"Vulnerability", as an abstract concept, involves not a certainty of
injury but simply a possibility that it may occur. As a comparative concept it simply requires
there to be a greater chance (by comparison with the case of the ordinary
homeless person) that it will occur. In
the Statutory Guidance given by the Scottish Ministers, to which (by reason of section 37
of the Act) the respondents are required to have regard, the test is put in
this way: "A person is considered vulnerable when they (sic) are less able to fend for themselves so that they may
suffer in a situation where another homeless person would be able to cope
without suffering." [emphasis added]. I do not disagree with that test, since in
context the word "may" equiparates, in my somewhat
different formulation, to "is more likely to". Mr. Upton, for the respondents,
accepted that his clients' decision should be judged by reference to this test.
[6] The
relevant facts are relatively straightforward.
The petitioner lived from at least 2004 in rented accommodation in Alloa. Since
November 2005 she had lived there with her boyfriend. Between 27 February and 6 April 2006 she was in custody. Upon her release, she found that her tenancy
had been terminated. She went to live
with her boyfriend at his parents' home.
When her boyfriend's brother returned home, there was no longer any room
there for the petitioner and her boyfriend.
They became homeless. The
petitioner applied to the respondent's Housing Services Department for
permanent accommodation in terms of section 31(2) of the Act. In her application form she identified a
special need as being her "depression and nervous disability". Her application was assessed and
refused. That refusal was communicated
by the respondents by letter of 11 May
2006. So far as is material,
the letter stated that the respondents considered that the petitioner did not
have a priority need in terms of section 25 of the Act. The petitioner sought a review of that
decision in terms of section 35A of the Act. I have some doubt as to whether that section
applies to the decision taken by the respondents which, to my mind, was a
decision under section 30 and not under one of the sections referred to in
section 35A(2). Be that as it may,
a review took place. The petitioner
provided further information and argument.
Of particular relevance, so far as this petition is concerned, was the
information given to the respondents by the petitioner concerning the success
of her treatment for drug abuse. She said in her letter that she had
successfully stopped using drugs two years ago.
She emphasised the need for stability, and how the uncertainty about
housing had caused her key worker from CADS (Community Alcohol and Drugs
Service) to put a stop to the gradual reduction of her methadone prescription
"as she is concerned the pressure of all of this could make me relapse". She also raised the question of her potential
application for custody of her children and how her lack of somewhere to live
might affect that, but I do not take this issue further since it formed no part
of the petitioner's case on Record or at the hearing before me. That review submission was supported by a
letter from her CADS Community Charge Nurse, Janet Hamill,
in which Ms. Hamill said that the petitioner had made
"outstanding progress" in her Methadone Assisted Treatment and enclosed a
letter sent to the petitioner's general practitioner about this. Ms. Hamill also
expressed the view that the petitioner "has maintained stability and I would
certainly have serious concerns regarding her stability if she were to become
intentionally homeless". This material
was considered by the respondents in reviewing the earlier decision. They nonetheless came to the view that the
earlier decision should be upheld. Their
decision letter dated 22 May 2006
identified the possible grounds upon which the petitioner might be regarded as
vulnerable as being "chronic ill health" or "other special reason". It recited the letter from Ms. Hamill, noting the petitioner's "outstanding progress in
your methadone-assisted treatment" and noting also Ms. Hamill's
serious concerns to which I have referred.
It referred to the petitioner's concerns that her homelessness might
affect her application in respect of her children, though concluded that since
the children were not in her care this was not a ground for establishing a
priority need - as I have said, this aspect of the decision is not
challenged. It then went on to say this:
"Having
considered your circumstances, the Council is satisfied that there is no
information to suggest that you are less able to fend for yourself so that you
may suffer in a situation where others will be able to cope without suffering.
Therefore, based
on the information given in your application and from the enquiries made by the
Council, you cannot be said to be vulnerable in terms of the description in the
legislation. In reaching this decision I
have had regard to the 2005 Code of Guidance on Homelessness"
The Code of Guidance on
Homelessness is the Guidance to which I have already referred.
[7] For
the petitioner, Mr. Govier challenged this decision
on two grounds. First, he submitted that
the respondents had applied the wrong test in assessing vulnerability. They had used the wrong comparator. Instead of comparing the petitioner's
vulnerability with that of the ordinary or average homeless person, they had
compared it with that of others (whether homeless or not) who were in a
comparable position as regards drugs and drug treatment. Secondly, he submitted that, even if they had
purported to apply the correct test, the respondents had reached a decision
which was unreasonable in the Wednesbury
sense (or "irrational" to use the terminology in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374): As it was put in the petition:
"No reasonable
decision maker applying its mind to the relevant questions and information
before it could ... have concluded that the petitioner did not have a priority
need for accommodation being a person who is vulnerable as a result of chronic
ill-health or other special reason , by way of the
possible effect of a period of homelessness on her recovery from her drugs
addiction".
In the petition there was an
additional point made, namely that the respondents had failed
to take account of the opinion expressed by the CADS Community Charge Nurse,
but this point was rightly not pressed at the hearing before me.
[8] In
my judgement these arguments are unsound and must be rejected. I consider each in turn.
[9] The
first argument is that the respondents have applied the wrong test by
identifying the wrong comparator. The
relevant passage in the letter of 22 May is to this effect:
"... there is no information to suggest that you are less able to
fend for yourself so that you may suffer
in a situation where others will be able to cope without suffering." [emphasis added].
It is suggested that the
respondents are not comparing the petitioner with another (and ordinary)
homeless person. I do not accept
this. The words which I have italicised
show that the comparison is between the petitioner and others "in a situation"
where they will be able to cope and she not.
That situation is obviously homelessness. It follows that the comparator must be a
homeless person. Further, it was
accepted in argument that the reference to being able to cope, as used in the
cases, was a reference to coping with homelessness. I was not given any reason to think that when
the respondents used that same expression they meant something different. If it means, as it must mean, coping with
homelessness, it again shows that the comparison is being made with a homeless
person. No other person has to cope with
homelessness. It was faintly suggested
that the respondents had not applied the test of the ordinary or normal
homeless person. I reject that
suggestion. It is plain, to my mind, that the respondents have sought to apply the test
identified in the cases and the Guidance.
That test makes it clear that the comparison is to be drawn with the
assumed normal or ordinary homeless person.
That is the correct test. There
is nothing to indicate that the respondents have not applied themselves to that
test.
[10] The second argument is that the decision is unreasonable in the
Wednesbury sense. In considering such an argument, it must be
borne in mind that parliament has entrusted the decision making task to the
local authority. There is good reason
for this. The local authority will have
experience of housing and applicants for housing. It will be in a better position than any
judge to assess the comparative vulnerability of any particular applicant. It is clear that the process involves
interviewing the applicant, and I was told by Mr. Upton that the applicant was
in fact known to the relevant individuals in connection with earlier applications
for housing. It will also be in a better
position to make an assessment of the vulnerability of the normal or ordinary
homeless person in its area. Ultimately
the local authority has to make a value judgement. The court is quite unable to do this in the
ordinary course. I was shown cases where
judges had intervened and held a decision to be unreasonable in the relevant
sense, and other cases where they had not.
I do not find such an exercise to be particularly useful. The process of assessment as carried out by
the local authority in this type of case is infinitely more complex than the
kind of comparison I was invited to make by reference to other decisions on
other facts. There may be cases where
the facts are so extreme that the court can say that the decision made by the
local authority defies reason. But the
facts of the present case are far removed from such a case. The respondents took account of the
expression of concern. They may also
have taken account of the fact that, although the petitioner's boyfriend's
parents could no longer provide accommodation, they might still be relied on
for stability and support. There may
have been other factors in their assessment.
Some are set out in the Answers to the petition. But I prefer to deal with the matter on the
basis that the petitioner has not crossed the threshold of showing an arguable
case that the decision of the respondents was unreasonable in a Wednesbury sense. The argument for the petitioner really came
down to the proposition that the concern expressed by Ms. Hamill
amounted to a statement by her that the petitioner satisfied the test of
vulnerability and that the respondents had no alternative but to accept such a
statement as conclusive. I cannot accept that.
Ms. Hamill's concern is a factor to which the
respondents must have due regard, but it is not the only factor in the
comparative assessment which they require to make, and the decision is for
them, rather than any other professional person, to make. Whilst the position of any homeless person
inevitably invites the sympathy of the court, it would do a disservice to the
proper administration of the housing service in inevitably difficult
circumstances if the court were too readily to second-guess decisions made by
local authorities on such matters.
[11] In the circumstances I shall refuse the prayer of the petition.
