Littlejohn v City of Westminster [2007] EWCA Civ 1562

Case No B2/2006/2617[2007] EWCA Civ 1562
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR HHJ BEHAR)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 16 th February 2007
Before
LORD JUSTICE BUXTONLORD JUSTICE RIX
Between
LITTLEJOHNAppellantCITY OF WESTMINSTERRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M RUSSELL (instructed by Messrs Moss Beechley Mullem and Coleman) appeared for Applicant.MR G PRYCE (instructed by Director of Legal and Administrative Services) appeared for Respondent.
Judgment
[1]This is an application for permission to appeal from a judgment of HHJ Behar given in the Central London County Court on 23 November 2006. He, in his turn, was hearing what is in effect a judicial review application, though in terms an appeal, from a decision of the respondent, the City of Westminster, in respect of a homelessness application by the applicant, Mr Littlejohn.[2]The matter in issue is whether Mr Littlejohn has a priority need for accommodation, he being at the moment homeless or at least threatened with homelessness. As will be well recognised, the question for the judge was whether it was reasonably open to the local authority in a determination by a reviewing housing officer, Mr Uren, to come to the conclusion that Mr Littlejohn did not have such priority need.[3]Mr Littlejohn had the advantage of being represented both below and before us by Mr Martin Russell, who has carefully and clearly said everything that could be said in support of this application. I should say something about the history, though it is set out in considerable detail both in Mr Uren’s determination and also in the judge’s judgment, and of course is well known to those concerned with the case.[4]The factor that is, to some extent, unusual in Mr Littlejohn’s case is that he has a housing history of living at a significant number of different addresses for a short or relatively short period of time. He apparently gave up a tenancy in Lancashire, according to the judge, in 2004 and came to London where he had three different addresses before going back to Lancashire and he has lived at several rented private addresses as well as in temporary accommodation. From time to time he has stayed with friends or has slept roughly as a street homeless person.[5]He applied on 1 June 2006, to the local authority for housing assistance and was referred by the respondent to the Joint Assessment Service. He was assessed by a case manager there who had the advantage of a discharge summary from the department of psychiatry at the Royal Free Hospital, dated 15 August 2005, signed by a consultant psychiatrist.[6]The summary records that he had never been given psychiatric treatment, was not psychotic, and was not readmitted to hospital by the consultant, but was advised to register with or consult a general practitioner. Despite the history of disordered housing record, the view of the housing officer who dealt with the JAS assessment was that Mr Littlejohn was not vulnerable for the purposes of the Housing Act on mental health grounds, that he was able to fend for himself, and had no problems in travelling.[7]Following that assessment the matter was reviewed, as I have said, by Mr Uren, the Housing Review Officer of the local authority, who produced a detailed report dated 9th August 2006. Mr Uren, as one would expect, was clearly familiar with the jurisprudence in this area, and was aware that in order to find a priority need it had to be demonstrated that Mr Littlejohn was, in the terms of section 189(a)(c) of the Act a person who was vulnerable as a result of old age and mental illness or handicap or physical disability or other special reason. He also referred to the well known authority of R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317, to which it will be necessary to revert.[8]Mr Russell very properly said that subject to the one criticism, Mr Uren’s review was a careful and full account of Mr Litlejohn’s circumstances. I will venture to set out one or two paragraphs of it, on page 3 of his report, Mr Littlejohn said this:
“When JAS met with you they found that you displayed no psychotic or depressive symptoms or any clear mental health symptoms. They considered all of the medical information to us and were aware of your previous diagnoses of possible schizotypal disorder and personality disorder. However, these conditions were not evident from the recent GP information they had considered, all from their assessment of your mental health… [I omit some passages] …The JAS concluded that you have no mental illness that would make you vulnerable, according to the Pereira test.”
And Mr Uren referred to some parts of the JAS report that I have already set out.[9]Mr Uren was aware of and took account of the housing history of Mr Littlejohn that I have already referred to, though he did not take account of it in quite the way that Mr Russell says he should have. But he said this in a paragraph setting out effectively his conclusions on page 4 of his report:
“I have considered that in spite of your housing difficulties in the past you have managed to access medical help and support. Furthermore, there are medical services available specifically for homeless people. Having considered all of your circumstances, I do not believe that you will any less able to access those services than an ordinary homeless person.”
Then having summarised the matter and other problems that Mr Littlejohn referred to, Mr Uren concluded on page 5:
“I am satisfied for the reasons I have given above you are not vulnerable as a result of any of your particular circumstances or as a result of the cumulative effect of all of your circumstances.”
[10]As HHJ Behar rightly recognised, he could not go behind that assessment unless it was an assessment either based upon an incorrect understanding of the law or one that was not open on the facts to the reviewing officer. Clearly, and Mr Russell rightly accepts, it cannot be said that the latter condition arises here. The complaint made in this case is that the law had not been correctly applied. That complaint arises in this way. The matter that is said to have been left out of account is precisely the effect of Mr Littlejohn’s housing history and what it seems to say about his ability to retain accommodation once he has acquired it.[11]In the Pereira case, after an extensive review of the previous authority, at page 330 of the report, Hobhouse LJ, as he then was, summarised in terms that are regarded as important, indeed almost canonical, guidance in this area the principles that should be applied in deciding whether a person is vulnerable in the way that gives him a priority need and he said this:
“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 reasons. 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 as to whether or the applicant is for a material time homeless. If he is not homeless the question of whether he is 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 aspect of his inability, as a homeless person, to fend for himself.

(c) ”

[12]Now, the complaint made in this case is this, that Mr Littlejohn’s particular disability or handicap is admittedly not an inability to obtain accommodation, but an inability to obtain and keep accommodation, and it is that particular feature that makes him vulnerable in the subparagraph (c) sense, and that aspect of vulnerability was not considered by Mr Uren and was not considered by the judge.[13]It seems to me that that complaint is not well founded. It is not well founded in general terms, nor even if it were well founded could it avail Mr Littlejohn in this case. The reason why I say that, the first of those propositions, is this. It is quite clear as a matter of logic and Lord Hobhouse so says in Pereira that the question of vulnerability only arises in the context of a person who is in fact homeless. That is not just a matter of arid legalism; it is a matter of common sense. The question is whether, when he is homeless -- and it is accepted that all homeless people are under a situation of handicap -- he will be, because of some condition of his, so significantly different from the unfortunate positon of other homeless people to be said to be relevantly vulnerable under paragraph (c).[14]It therefore cannot even raise the question of homelessness to say that a person is someone who, when in accommodation, is in danger or imminent danger of losing it. That is not the issue. The issue is the situation he will be in when he in fact ends up as homeless. So, the objection falls, it seems to me, at the first hurdle, and it is quite clear that Lord Hobhouse deliberately differed from earlier first instance authority in setting out that requiremnt.[15]So it cannot be said that the reviewing officer or the judge wrongly failed to consider this particular type of vulnerability. Secondly, however, even if it were accepted that inability to retain accommodation is to be regarded on the same level as inability to find accommodation, on the facts of this case and on the basis of Mr Uren’s analysis that would not avail Mr Littlejohn either. That is because, as is clear from the passage that I have read from Lord Hobhouse, the fact of difficulty of finding accommodation is not in itself enough. It must be demonstrated that that difficulty springs from a particular condition leading to or establishing vulnerability.[16]In this case, Mr Uren has found, and on the evidence that was wholly open to him, that although Mr Littlejohn obviously has a significant number of problems when he is out on the street, first of all the problems do not cause him exceptional difficulty; and, secondly, such difficulties as he has cannot be attributed to any condition that can found vulnerability in the terms of the statute. And what the doctors have said and what Westminster is entitled to rely on, is that they cannot identify any specific condition that suggests or leads to Mr Littlejohn being vulnerable in the sense that the statute requires.[17]These are not, in my judgement simply technical arguments. We have to remember that this very difficult area of the law creates a tension between two different factors. One is the desire to accommodate persons who suffer from particular handicap and have some difficulties in dealing with the accepted general difficulties of homelessness. The other, in a condition regrettably of limited housing stock, is the need to look with care at the grounds upon which persons, by being acknowledged to be in priority need, are able to (and I do not use this word derogatorily) circumvent the problems of waiting for accommodation.[18]This is of course a second appeal, the matter already having been dealt with by HHJ Behar. If I thought that there was a point of general importance here, clearly arguable, I would grant permission, but firstly I do not think that the general point is one that is open on authority binding this court; and secondly, in the particular case, even if the objection were successfully litigated, I fear I can see no way in which would it undermine the very full analysis of the housing review officer.[19]Accordingly, and despite Mr Russell’s very helpful submissions for which we thank him, I would not grant permission in this case.[20]I agree. Mr Littlejohn is undoubtedly and unfortunately homeless, but the question is whether he can establish a priority need within the terms of the statute. The reviewer, Mr Uren, in a careful review has concluded that Mr Littlejohn has failed to show that he was vulnerable at all within the statutory guidelines. In coming to that conclusion he specifically considered the difficulties that Mr Littlejohn had had in maintaining accommodation. He referred specifically to “your housing difficulties in the past”. Therefore it was not as though Mr Uren had failed to take account of those difficulties.[21]It may be that a proven ability to obtain accommodation will not prevent an applicant from being found to be vulnerable within the statutory guidelines, if his obtaining of accommodation proves to be illusory because of an inability to maintain that accommodation. However, it seems to me that that issue is not raised on the facts of this case.[22]The application is therefore refused.

Order

Application refused.