England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SEDLEY: This is the sort of application with which the Court would prefer not to be confronted. I say that not because it has not raised extremely interesting and difficult issues of fact and law but because the inevitable outcome if the application fails (as I regret this application must) is that a sick and vulnerable individual (and I do not use the word "vulnerable" in its statutory sense) is going to be put on the streets. Nothing could be a greater reproach to a society that considers itself to be civilised and to be governed by the rule of law.

2. The law in question, however, is to be found initially in s 189 of the Housing Act 1996. It includes, among those who have a priority need for accommodation: "...(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason..."

3. That is preceded by categories of persons who are, if a woman, pregnant and persons with whom dependent children reside or may reside, and it is succeeded by a category of persons rendered homeless by sudden disaster.

4. The applicant in this case, Mr Fleck, has a long history of illness, which now include hepatitis C but which has over many years included both depression and drug abuse, the latter almost certainly being responsible for the hepatitis.

5. There is more than one view also on whether his depression is a function of his drug abuse or whether the reverse is the case. A consultant psychiatrist, Dr Shanahan, who has treated him in the past, in a report written in September 1996 indicated a view consistent with the depression being a chronic condition to which his drug abuse was (at least in part) a later response. That report was not placed before the local authority when it was asked to exercised its s 189 powers. What was before the local authority was a medical report written by the consultant's registrar, a Dr Trathen, which in turn suggested that both the hepatitis and the depression were the consequence of his misuse of drugs.

6. The local authority determined, in a decision conveyed by letter of 4 August of this year, that the applicant was not vulnerable in the statutory sense and therefore not in priority need. The decision letter said, in particular:

7. There is more than one respect in which the applicant can and does say that that is an unsatisfactory and ultimately incorrect conclusion. The proper means of saying so lie through the statutory mechanisms of appeal and review which, with the help of the Hammersmith and Fulham Law Centre, Mr Fleck has initiated. This being so, he accepts through his solicitors and his counsel Miss Clarke that he must abide the outcome of that process and that he cannot come to this Court simply in an attempt to anticipate its outcome by judicial review. This is why the initial formulation of the decision or order challenged in his form 86A turns out to be in effect a challenge to the decision that he was not in priority need through vulnerability. He says that the decision was on the face of it not sustainable.

8. Miss Clarke, at my invitation, changed the focus of her application today to the decision which is the source of the critical problem, the decision of the local authority under s 188 of the Housing Act 1996. That section deals with, as the shoulder note puts it, the interim duty to accommodate in cases of apparent priority need. It is necessary first, in order to draw the contrast, to see what sub-section (1) says:

9. Thus for as long as the initial decision is pending, provided it is a respectable application capable of succeeding, the duty to secure interim accommodation operates. However, once the adverse decision has been taken, and even though it is then subject to review, sub-section (3) goes on to provide that the duty ceases when the authority's decision is notified to the applicant even if the applicant requests a review of the decision (see section 202). The authority may continue to secure that accommodation is available for the applicant's accommodation pending a decision on a review.

10. The word "may" in many senses casts the applicant and local authority adrift. By what criterion is the local authority to decide whether somebody who, although homeless and thus eligible for assistance but having been determined at first instance not to have priority need, is in the process of appealing against that conclusion, ought to have accommodation made available to him pending the review of the decision? More than one local authority has evidently adopted a test of exceptional circumstances or reasons. Such a test was examined by Latham J in R v London Borough of Camden ex parte Mohammed (unreported, 23 May 1997). There the use of such a test was not impugned, and Latham J spelt out how the balancing exercise should be conducted in the application of such a test.

11. In the course of argument today I have been led to query whether such a test is viable at all. I can see that it is something of a plank in a shipwreck for local authorities who need something to cling to. But I have been exercised as to whether it is actually capable of being meaningful. Miss Roberts has satisfied me, on behalf of the local authority, that it is not without meaning. Indeed the present local authority's policy is somewhat fuller and more subtle than that which one sees in the Camden case. She instances, for example, somebody who, although deemed initially not to be in priority need, is ill to that extent that they are not hospital but require daily attendance, or somebody who has children for whom they are responsible and whom the local authority would prefer to keep together with the parents than take children into care, at least during the interim period.

12. Moreover, Hammersmith and Fulham's policy contains a passage which refers to a request for interim accommodation in a situation such as the present:

13. Loyally to that policy, the local authority wrote back on the 15 August in response to a very full and careful letter from the Hammersmith and Fulham Law Centre promising further medical evidence from Dr Trathen, which was expected to deal specifically with the relationship in time and causation of the depression and drug abuse:

14. It is not, in my judgment, arguably possible to fault that decision letter in terms of the policy nor arguably possible to fault the policy in terms of the statute. It appears to me to be incontestably a policy which will produce some form of consistency and equity in the distribution of scarce resources in a situation which Parliament clearly contemplates that not everybody who seeks a review can be meanwhile accommodated but equally contemplates that local authorities must be able to and will decide in some cases to accommodate such persons on an interim footing.

15. The review which is progressing in the capable of hands of Law Centre will no doubt continue. It may turn out that the basis upon which the initial decision was perfectly bona fide taken is not diagnostically a sound one and that this is a case in which priority need can ultimately be established. If that were to turn out to be the case, it would be a catastrophe if meanwhile this man with obviously severe psychiatric and medical problems has had what is left of his life shredded by the circumstances in which he now finds himself; but there is nothing that this Court can do to intervene.

16. The application for leave both in its initial and in its revised form is not capable of succeeding. Into the black hole which the legislation creates Mr Fleck must go until a decision is reached upon his review. I hope the decision will be reached at a very early date in order that, if there are pieces capable of being picked up, they can be picked up.

17. I am grateful to both counsel who have dealt with some testy questioning from the Bench with great courtesy and patience.

18. MISS CLARKE: My Lord, I seek legal aid taxation.

19. MR JUSTICE SEDLEY: Yes, certainly.