Auld LJ set out the test to be applied by an authority when deciding whether the applicant was vulnerable for the purposes of deciding whether to give priority housing assistance. The courts had recognised the difficult, involved nature of the decision-making process, particularly in the context of decisions on vulnerability and priority need. Auld LJ said: ‘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.’ 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.
The test as to a ‘vulnerable person’ under the Housing Act 1996, s 189(1)(c) was a single one of a homeless person's less than normal ability to fend for himself such that he would suffer more harm than would an ordinary homeless person. For the purpose of applying the vulnerability test, a local housing authority should assess it on the assumption that an applicant had become or would become homeless, not on his ability to fend for himself while he was still housed. The appellant (O) appealed against a decision that it was not Wednesbury unreasonable or otherwise unlawful for the respondent local housing authority to decide that it had no interim duty to accommodate O as a homeless person under the Housing Act 1996, s 188(1) because he was not in apparent priority need for accommodation as a vulnerable person as defined in s 189(1)(c). O had arrived in the United Kingdom as an asylum seeker from Kosovo. He suffered post-traumatic stress disorder and depression as a result of being imprisoned and persecuted in Kosovo. After O received a notice to quit his privately-rented accommodation, he sought to be housed as a vulnerable homeless person. He obtained medical reports as to his vulnerable psychiatric state. The local authority, while accepting the diagnosis of his mental condition, determined that O was not a vulnerable person as defined in the Act as his condition did not impede his ability to fend for himself if homeless. The local authority therefore refused his application for assistance. The judge treated O's appeal against the decision as an application for judicial review and decided that the reviewing officer had used the correct test of vulnerability from R v LB of Camden, ex p Richard Pereira and that it had been open to the reviewing officer to reach the decision she had. O submitted that the reviewing officer had failed to address the Pereira question of whether O, as a result of his depressive condition, would be less able to fend for himself if he were to become homeless. He further argued that the judge had wrongly held that the reviewing officer had properly applied the Pereira test and that it was Wednesburyreasonable. HELD: Appeal dismissed. A local housing authority had to apply s 189(1)(c) in its broad and immediate statutory context and not the Pereira test as if it was a statutory formulation. The Pereiratest was a judicial guide to interpretation and application of the provision. The broad statutory context involved a matter of ‘priority’ as between homeless persons, and a scheme of social welfare conferring benefits at public expense on grounds of public policy on those whom it identified as entitled to such priority. The test was a single one of a homeless person's less than normal ability to fend for himself such that he would suffer more harm than would an ordinary homeless person. For the purpose of applying the vulnerability test, a local housing authority should assess it on the assumption that an applicant had become or would become street homeless, not on his ability to fend for himself while he was still housed. The decision letter met all the requirements of the Pereira test when subjected to a judicial review challenge under s 204 of the Act. The reviewing officer had sought and obtained evidence for the risk assessment as to O's future vulnerability as was required of her by s 189(1)(c) as interpreted by Pereira. Vulnerability was not necessarily a medical question. O's condition did not prevent him from fending for himself in his daily activities. The reviewing officer had addressed the correct question of assessing the future risk to those capabilities if and when he were to become homeless. The reviewing officer's decision was one which was reasonably open to her and, as such, was not perverse.
(Source Solicitor's Journal)