Griffin v City of Westminster

Under Housing Act 1996 section 189(1)(c), an applicant is vulnerable where, when homeless, the applicant would be less able to fend for himself or herself than an ordinary homeless person, so that injury or detriment would result when the ordinary homeless person could cope without harmful effects.

The assessment concerns future risk and therefore contains an element of uncertainty. It does not require the authority to apply a separate test of whether harm is “likely”, nor to quantify the risk in percentage terms. Although a housing authority must have regard to statutory guidance, the statute as authoritatively interpreted by the court prevails where the guidance introduces a different test.

The local housing authority decided on review that the claimant, although homeless and eligible for assistance, had no priority need under section 189(1)(c) of the Housing Act 1996. The Review Officer found that the claimant's reactive depression was insufficiently serious to make him vulnerable under the test stated in R v Camden London Borough Council, ex p Pereira.

The Central London County Court allowed the claimant's statutory appeal. It held that the Review Officer had imposed too high a threshold by failing to assess whether injury or detriment was likely. The authority appealed. The central issue was whether the statutory test required a distinct likelihood or degree-of-risk threshold beyond the formulation in Pereira.

1. Appeal allowed unanimously. The Review Officer had applied the correct test under section 189(1)(c) of the Housing Act 1996. The County Court had erred by adding a likelihood qualification to that test. The Review Officer's decision was restored.

2. Lord Justice Kennedy, with whom Lord Justice Clarke and Lord Justice Jacob agreed, followed R v Camden London Borough Council, ex p Pereira. The authority had to decide whether the claimant, when homeless, would be less able to fend for himself than an ordinary homeless person, so that injury or detriment would result when the ordinary homeless person could cope without harmful effects. The Review Officer's language faithfully reflected that formulation.

3. The assessment necessarily addressed risk because future events could not be certain. Nevertheless, neither section 189(1)(c) nor Pereira required the decision-maker to ask separately whether injury or detriment was “likely”. Introducing that word would create further uncertainty because its meaning depended upon context. The risk did not have to be expressed as a percentage. Depending on the facts, detriment could include a significantly increased risk of suicide or serious illness.

4. Paragraph 8.13 of the Homelessness Code of Guidance introduced the words “be likely to”, which did not appear in the statute or in the test stated in Pereira. A local housing authority was required by section 182(1) of the Housing Act 1996 to have regard to the Code. Where the Code differed from the statute as interpreted by the Court of Appeal, however, the statute prevailed. The Secretary of State might therefore reconsider paragraph 8.13.

5. The court should not add to the guidance already supplied by the statute and Pereira. The evaluative assessment of the available evidence should remain with the responsible local housing authority.

1. Court of Appeal (Civil Division): The authority's appeal was allowed unanimously. The County Court's order was set aside and the Review Officer's decision was restored: [2004] EWCA Civ 108.

2. Central London County Court: Judge Ryland allowed the claimant's appeal on 3 September 2003, holding that the Review Officer had applied too high a test of vulnerability.

3. Housing review: On 27 May 2003 the Review Officer upheld the determination that the claimant was homeless and eligible for assistance but did not have a priority need for accommodation.