This appeal by Westminster City Council (Westminster) sought to overturn the judgment of the County Court in allowing the appeal of Stephen Crossley (C), against its refusal to treat him as in priority need of housing. The County Court had exercised its jurisdiction, created by s.204 Housing Act 1996(the Act), to intervene if the decision of the local authority was wrong in law. The basis of the Council’s appeal was that there was no such error and that the judge was not entitled to prefer his appraisal of the facts to that of the reviewing officer (RO).
C, a male aged 36 years old, grew up in local authority care and since the age of 17 lived on the streets of London, with spells in hostels and prison. He was chronically depressed, suffering from mild asthma, hepatitis C and was addicted to heroin. He was helped by two charities, Turning Point and Thames Outreach, and at the time of the appeal to the County Court, C was temporarily accommodated. Evidence to support C’s request for priority need housing was given by both charities and the Caravan Project, which was providing therapeutic treatment for C’s substance misuse. A medical report further supported his claim by stating that “… he is a vulnerable man, suffering from depression which is very likely to deteriorate if he is roofless.” Westminster’s assessment of C’s need was that he was “not vulnerable because of mental illness” and that his depression was …secondary to his situation.” The County Court held that C was less likely to be able to look after his physical health than an ordinary homeless person and that he was at an increased risk of detriment or injury from his drug addiction. A less vulnerable person would be able to cope without such harmful effects, and that in coming to a contrary decision, the RO had been Wednesbury unreasonable in his assessment of facts.
The Act requires a local authority to make “such inquiries as are necessary” to ascertain the nature and extent of any duty they may owe to an apparently homeless person. The question in relation to C was whether he was in priority need. S.189 (1)(c) includes in this class “ a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason.” The last category requires proof of particular difficulties, graver than faced by ‘ordinary’ homeless persons. By virtue of the Homelessness (Priority Need for Accommodation) (England) Order 2002, the class includes persons who have been “looked after, accommodated or fostered” and are vulnerable as a result. 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 side effects” R v Camden LBC ex parte Pereira  applied. It was accepted by the Court of Appeal that a recovering drug addict may or may not be “vulnerable as a result of ….. a special reason” and this created a “grey area” in which any judgements required an especially careful examination of the statutory criteria and evidence. The Code of Guidance for the Act (to which decision-makers are required by s.182 to have regard) states that ‘Housing Authorities will need to make enquiries into an applicant’s history to establish whether he …. had been looked after, accommodated or fostered …. if so, they will need to consider whether he …. is vulnerable as a result.’ Three factors that had to be considered:
(i) the length of time the applicant was looked after;
(ii) whether the applicant was able to obtain/maintain accommodation since that period; (iii) whether the applicant has any support networks;
The guidance further states that housing authorities are not permitted to predetermine that some groups of vulnerable persons can never be considered vulnerable for an “other special reason”, and that each application should be considered in light of the circumstances and facts of the case. It went on to say that ‘other special reasons’ might include a combination of factors and circumstances which rendered a person less able than others to fend for himself when homeless. An applicant might be vulnerable for such reasons where he had no friends or family on whom he could depend.
The Court of Appeal found that the RO had “compressed” the information relating to C’s drug addiction and engagement with treatment services, so that it gave a misleading impression that C would be able to maintain this engagement even if he were to remain homeless. It diminished the very real risk of relapse and vitiated the RO’s view that there was no ‘special reason’ bringing C within the statutory class. The RO had overlooked material evidence in particular the history of repeated relapses after partial recovery. Evidence that C was unable to consistently engage with services and manage his own affairs was also omitted from the RO’s decision letter. The Court of Appeal held that the RO had failed to acknowledge material facts which he was obliged to consider; this permitted reconsideration of the facts by the judge in the County Court. The Court of Appeal also found that C’s period in care was relevant to his drug addiction and his current vulnerability and as such would satisfy the requirement of a ‘special reason’ under s.189(1)(c). It acknowledged that housing authorities would not relish the granting of a tenancy to a recovering drug addict with all of the associated problems that this might bring, but that was not a relevant consideration under s.189.