Guiste v The London Borough of Lambeth

When deciding whether a homeless applicant is vulnerable under section 189(1)(c) of the Housing Act 1996, the authority must compare the applicant, if homeless, with an ordinary person made homeless. A protected characteristic must cause harm or detriment that makes a noticeable difference to the applicant’s ability to deal with homelessness.

No additional test of impaired “functionality” applies. Where cogent psychiatric evidence addresses a serious risk of self-harm or suicide upon homelessness, a reviewing officer who rejects it must give a rational explanation. Failure to consider that evidence fairly and reach an adequately reasoned conclusion is an error of law.

The appellant applied to the London Borough of Lambeth for homelessness assistance. He relied on hypoparathyroidism and mental ill-health, including depression, hallucinations, self-harm and a risk of suicide. Lambeth decided under section 184 of the Housing Act 1996 that he was homeless and eligible for assistance but did not have a priority need. A reviewing officer upheld that decision under section 202.

His appeal under section 204 was dismissed by His Honour Judge Bailey in the County Court at Central London. On a second appeal, the central issue was whether the reviewing officer had lawfully assessed his vulnerability under section 189(1)(c), particularly the psychiatric evidence about the effect of homelessness on his risk of self-harm and suicide.

1. Appeal allowed. The review decision contained an error of law in its treatment of the appellant’s mental ill-health. It was quashed and the issue of priority need was to be reconsidered by an experienced reviewing officer other than the original officer.

2. The vulnerability assessment under section 189(1)(c) of the Housing Act 1996 is comparative, practical and contextual. It examines the applicant’s position if homeless against that of an ordinary person made homeless. A protected characteristic must cause harm or detriment that makes a noticeable difference to the applicant’s ability to deal with the consequences of homelessness. The ultimate assessment is an evaluative judgment for the reviewing officer.

3. The reviewing officer made no error of law when addressing the appellant’s hypoparathyroidism. She could assess the practical difficulty of continuing daily medication, consider advice from medical advisers who had not examined him, and decline to accept his self-reported prediction that he would stop taking medication. Although express treatment of the consultant psychiatrist’s opinion would have been preferable, the review decision had to be read benevolently.

4. The psychiatric evidence required a different conclusion. A consultant psychiatrist had directly addressed the effect of homelessness and identified increased depression, anxiety, command hallucinations, self-harm and suicide risks. The reviewing officer could depart from that evidence only by giving a rational explanation. Her reasoning did not explain why less-qualified advisers who had never examined the appellant should prevail, and appeared simultaneously to accept likely further suicidality while denying evidence of harm or deterioration caused by homelessness. This breached the requirements of rationality and fair decision-making.

5. The court could not itself determine that the appellant necessarily had a priority need. The evidence required reconsideration by a new reviewing officer.

6. “Functionality” is not a separate additional requirement. The discussion in Panayiotou concerned the necessary causal link between a protected characteristic and the effect of homelessness. It did not establish a further test of functional impairment.

7. The court rejected Lambeth’s request to withhold relief by analogy with section 31(2A) of the Senior Courts Act 1981. Even assuming that provision could apply by analogy, it was not highly likely that a lawful decision would have produced the same result. Whether section 31(2A) can apply by analogy to a statutory housing appeal under section 204 was left open.

1. Court of Appeal (Civil Division): The appeal was allowed. The review decision was quashed and the priority-need question was remitted for reconsideration by a different reviewing officer: [2019] EWCA Civ 1758.
2. County Court at Central London: His Honour Judge Bailey dismissed the appellant’s section 204 appeal against the review decision in a reserved judgment dated 29 January 2019. No neutral citation is stated.
3. Statutory review: The reviewing officer upheld Lambeth’s section 184 decision that the appellant was not in priority need under the Housing Act 1996.