Dostenko v City of Westminster

Priority need under Housing Act 1996, s.189(1)(c), requires a composite assessment on the assumption that the applicant is homeless. The decision-maker must compare the applicant’s ability to fend for himself with that of an ordinary homeless person and identify a risk of injury or detriment that the ordinary person would avoid.

A housing authority must make the necessary inquiries, but the scope of that duty is fact-sensitive. The question is whether no reasonable council would have refrained from the further inquiry proposed. Representation, continuing contact with the authority and the absence of information or a request for further inquiry may make an additional inquiry unnecessary. A second appeal requires an important point of principle or practice or another compelling reason.

Mr Dostenko applied to the City of Westminster for accommodation after eviction. The authority determined that he was not in priority need under s.189(1)(c) of the Housing Act 1996. On review under s.202, the authority upheld that decision.

His appeal to the Central London County Court was dismissed by His Honour Judge Ryland on 30 August 2007. Mr Dostenko sought permission for a second appeal, arguing that the reviewing officer should have investigated the effect of his two months of street homelessness on his mental health and ability to cope. The central issue was whether that failure arguably rendered the review decision unlawful and raised an important point of principle or another compelling reason for a second appeal.

The Court of Appeal unanimously refused permission to bring a second appeal.

1. The statutory vulnerability inquiry under s.189(1)(c) of the Housing Act 1996 required the decision-maker to assess the applicant on the assumption that he was or would become street homeless. The relevant comparison was with the ordinary homeless person. The assessment was composite and required a risk of injury or detriment that an ordinary homeless person would avoid. The Court referred to R v. Camden LBC ex parte Pereira (1999) 31 HLR 317 and Osmani v. Camden London Borough Council [2004] EWCA Civ 1706, [2005] HLR 22.
2. There was a duty on both the housing officer and, on review, the senior housing officer to make the necessary inquiries. Its scope depended on the circumstances. The applicable question was whether no reasonable council would have refrained from making the further inquiries proposed, applying Cramp v. Hastings BC [2005] HLR 48.
3. On the facts, Mr Dostenko was represented by solicitors, remained in contact with the authority throughout the review and did not provide further representations about the effect of his street homelessness or ask that he be personally questioned. Requiring the reviewing officer to make further inquiries in those circumstances would go beyond the scope of the duty. The lower court’s endorsement of the review was not unreasonable, and the proposed appeal raised no important point of principle or practice and disclosed no other compelling reason.
4. May LJ added that the lawfulness of the decision fell to be assessed as at 11 May 2007. Later deterioration or improvement could be addressed through a fresh application based on current information. He also expressed concern that the litigation had become largely historical and insufficiently focused on the applicant’s immediate welfare.

• Court of Appeal (Civil Division): Permission to bring a second appeal was refused.
• Central London County Court: His Honour Judge Ryland dismissed Mr Dostenko’s appeal against the authority’s review decision under the Housing Act 1996.
• City of Westminster: The authority’s review under s.202 upheld its determination that Mr Dostenko was not in priority need for accommodation.