Bankole-Jones v Watford Borough Council

The High Court dismissed the appellant's statutory appeal under section 204 of the Housing Act 1996 against a review decision that he was homeless and eligible for assistance but not in priority need. The court applied the statutory comparative test for vulnerability under section 189(1)(c) (as explained in Hotak, Panayiotou and related authorities) and held that the reviewing officer permissibly concluded the appellant was not significantly more vulnerable, when homeless, than an ordinary person made homeless. The judge also rejected attempts to rely on section 189(1)(d) (homeless as a result of an emergency) because the argument raised on appeal was not the argument put to the authority and there was insufficient evidence to show the COVID-19 pandemic caused the appellant's homelessness. The court further found no legal error in the reviewing officer's treatment of the appellant's Personal Independence Payment evidence and that no impermissible 'functionality' test had been applied.

This statutory appeal arose from a review decision under section 202 of the Housing Act 1996 in which Watford Borough Council concluded that the appellant, who had become homeless after leaving YMCA accommodation in 2019 and who suffered from mental health conditions, was homeless and eligible for assistance but not in priority need. The appellant challenged that review decision on four grounds: (1) that he ought to have been found in priority need under section 189(1)(d) as homeless as a result of the COVID-19 emergency, (2) that he ought to have been found vulnerable under section 189(1)(c), (3) that the council misapprehended the effect of his award of Personal Independence Payment, and (4) that the reviewing officer applied an unlawful additional 'functionality' test.

Background and facts

• The appellant was granted a licence for a room at a YMCA hostel in January 2019 and was required to leave in July 2019 for breach and arrears. He applied for homelessness assistance and was provided temporary hostel accommodation. Medical evidence from treating GPs and community mental health teams described depression, anxiety, PTSD and previous suicidal ideation, and a statement from the Department for Work and Pensions showed an award of the daily living component of PIP. Agency psychiatrists instructed by the local authority produced reports concluding there was not evidence of a severe and enduring mental disorder or significant impairment in activities of daily living. The appellant left temporary accommodation on 30 September 2019 and was street homeless. During the COVID-19 pandemic the council offered emergency accommodation which the appellant declined.

Procedural posture and issues

• The appellant filed a statutory appeal under section 204 in the County Court. The County Court transferred the appeal to the High Court by order of His Honour Judge Vavrecka (9 July 2020). The High Court considered jurisdiction to hear the transferred appeal and upheld the power of the County Court to transfer under section 42 of the County Courts Act 1984. The central issues decided at hearing were: whether the council had erred in law in its vulnerability assessment under section 189(1)(c); whether the council had failed to consider section 189(1)(d) in light of the COVID-19 pandemic; whether the council misapplied PIP evidence; and whether an impermissible functionality test had been applied.

Court's reasoning

• Jurisdiction: the judge held the County Court lawfully transferred the appeal and declined to give general guidance on transfer practice.
• Ground 1 (s189(1)(d)): the court found the argument that COVID-19 was the cause of the appellant's homelessness was not the argument put to the authority, was raised too late, and lacked the factual evidence that the YMCA accommodation would have become unsuitable because of the pandemic; on that basis the ground failed.
• Ground 2 (s189(1)(c)): the court applied the comparative test for vulnerability (comparing the applicant to an ordinary person if made homeless) and held the council reasonably concluded, on the evidence, that the appellant was not significantly more vulnerable when homeless. Guidance and ministerial correspondence relating to COVID-19 and homelessness did not displace the statutory test and did not show that all rough sleepers must be treated as vulnerable.
• Ground 3 (PIP): the court held that the council reasonably took the DWP letter into account but was not bound to accept that the PIP award, standing alone, established the level of functional impairment claimed where no detailed medical assessment in support had been produced.
• Ground 4 (functionality test): reading the decision as a whole, the court concluded the reviewing officer applied the correct legal test and did not import an additional unlawful functionality requirement.

Remedy The appeal was dismissed and the review decision was upheld.

The appeal is dismissed. The court held that (1) the County Court validly transferred the appeal to the High Court; (2) the reviewing officer lawfully and permissibly applied the statutory comparative test for vulnerability under section 189(1)(c) of the Housing Act 1996 and reached a permissible conclusion on the facts; (3) the appellant's s.189(1)(d) argument based on COVID-19 was not the argument put to the authority, lacked evidential basis and did not disclose error of law; (4) the council did not misapply the PIP evidence; and (5) no impermissible additional 'functionality' test was applied.

Statutory appeal under section 204 Housing Act 1996 filed in the County Court at Watford. The County Court made an order transferring the appeal to the High Court (order of His Honour Judge Vavrecka, County Court at Watford, 9 July 2020). The appeal was heard in the High Court (Deputy Judge Mathew Gullick) and judgment given 24 November 2020 ([2020] EWHC 3100 (Admin)).