B2/2003/2020 
Neutral Citation Number: [2004] EWCA Civ 108
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RYLAND)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 28 January 2004
 
B E F O R E:

LORD JUSTICE KENNEDY 
 
LORD JUSTICE CLARKE 
 
LORD JUSTICE JACOB 
 
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JASON GRIFFIN
Claimant/Respondent 
-v-
 
CITY OF WESTMINSTER 
Defendant/Appellant 
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MR CLIVE JONES (instructed by Director of Legal, Administrative Services, Westminster City Hall, London) appeared on behalf of the Appellant
MR MARTIN RUSSELL (instructed by Moss, Beachley Mullem & Coleman of London) appeared on behalf of the Respondent
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J U D G M E N T 

1.	LORD JUSTICE KENNEDY:  This is an appeal from the decision of Judge Ryland, sitting at the Central London County Court, who on 3 September 2003 allowed Mr Griffen's appeal from a decision of the Review Officer dated 27 May 2003.  The point at issue is the test to be applied when a person claims that he has a priority need for accommodation because he is vulnerable in one or more of the ways envisaged by Section 189 (1) (c) of the Housing Act 1996.  That section, so far as relevant, reads:
"(1) The following 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, or with whom such a person resides or might reasonably be expected to reside."
2.	The same words appeared in Section 59 (1) (c) of the Housing Act 1985 and were considered by this court in R v Camden London Borough Council ex p Pereira (1998) 31 HLR 317 in which Lord Justice Hobhouse reviewed the authorities, including R v Waveney District Council ex p Bowers (1983) 1 QB 238.  At page 330 Lord Justice Hobhouse set out his conclusion, with which the other two members of the court agreed.  So far as material, that conclusion reads thus:
"The council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reason.  Thus the council must ask itself whether Mr Pereira is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects."
Later:
"It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope.  The assessment is a composite one but there must be this risk of injury or detriment.  If there is not this risk the person will not be vulnerable."
3.	In the Homelessness Code of Guidance for Local Authorities, published in July 2002 by the Secretary of State pursuant to Section 182 (2) of the 1996 Act, it is said at paragraph 8.13 that the critical test of vulnerability is whether when homeless -
"the applicant would be less able to fend for himself than an ordinary homeless person so that he would be likely to suffer injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects."
Those are not the same words as were used by Lord Justice Hobhouse, and the difference is significant because the words "be likely to" have been added.  Those words, we were told, were not in any previous edition of the code and their origin is unknown.
4.	The status of the code is clear from Section 182 (1) of the Act.  In exercising their functions local housing authorities must "have regard to" the code, but if the code differs from the statute, as interpreted by this court, it is the statute which prevails (see R v Secretary of State for the Environment ex p Tower Hamlets (1993) QB 632.
Facts of case 
5.	I turn to the facts of this case.  Mr Griffin was born on 12 June 1970, so he is now 33 years of age.  He has lived all his life in Westminster.  In January 2001 he left his mother's home to live with his girlfriend Sarah at her council flat.  He was at that time working as a painter and decorator.  Sarah had two children by him.  In August 2001 he lost his job.  In February 2002 she moved with the children to Wolverhampton.  He chose not to go with her and returned to his mother.  In December 2002 he left that accommodation  because of disagreements with his mother's partner.  He then slept where he could.  He had problems with alcohol, and began to suffer from reactive depression.  He consulted his general practitioner, Dr Brown, and a councillor, Julie Quinn.
6.	In December 2002 he applied to the local authority for accommodation claiming that he was homeless and in priority need.  He was given temporary accommodation which he occupied until June 2003, but on 6 February 2003 the Housing Assessment Officer wrote to him to inform him that although he was considered to be homeless and eligible for assistance  he was not considered to have a priority need for housing.  
7.	Section 202 of the Housing Act 1996 entitled him to ask for a review of that decision.  He did so in a letter from his solicitors dated 10 February 2003, and that review was conducted by Minos Perdios, a Housing Review Officer.
The Review Decision 
8.	The Review Officer considered the file, interviewed the claimant and his mother and gave his decision in a letter dated 27 May 2003 in which he says:
"In deciding whether you are vulnerable in accordance with Section 189 (1) (c) of the Housing Act 1996 I must ask myself whether you, when homeless, would be less able to fend for yourself than an ordinary homeless person so that injury or detriment to you would have resulted when a less vulnerable person would be able to cope without harmful effect."
He then refers to Pereira and continues:
"Applying that test and taking into account the information in front of me, I am satisfied that your medical problems are not sufficiently serious for me to conclude that you are vulnerable."
His letter goes on to set out the information he has considered, and continues:
"From the information available to me I acknowledge that you suffer from depression.  However, I am not satisfied that this is severe enough to conclude that you would be less able to fend for yourself when homeless so that injury or detriment would occur more than an ordinary person."
The review officer gives his reasons for reaching that conclusion in an exemplary fashion.  We are not concerned with that aspect of the matter in this court. 
9.	Section 204 of the 1996 Act entitled the claimant to appeal to the County Court on any point of law arising from the decision on the review, and the claimant exercised that right.  The ground of appeal addressed to the Central London County Court read:
"2) The review did not apply paragraph 8.13 of the Code of Guidance and did not explain why it was not being applied."
There is then set out the wording of 8.13.  The ground of appeal continues:
"(b) The review did not evaluate the risk of harm or assess the likelihood of injury or detriment.  The review asked a question which imposed a higher hurdle for the applicant: would injury or detriment result.
3) The review misapplied remarks by Hobhouse LJ in R v LB Camden ex p Pereira ..... on the applicant's inability [to] find housing in such a way that the appellant's unsuccessful efforts to find housing were wrongly regarded in the review as supporting a finding of non-vulnerability."
Central London County Court 
10.	Thus the case came before Judge Ryland who considered whether the Review Officer had applied the wrong test, and referred to Pereira.  The submission on behalf of the claimant to the judge was, it seems, that the Review Officer had omitted to take account of what Lord Justice Hobhouse said at the end of his judgment, namely that the assessment is a composite one but there must be the risk of injury or detriment to which he had previously referred.  The Review Officer, it was said, did not undertake the risk assessment that was required.  That would have involved considering the likelihood of injury or detriment befalling the claimant which would not have befallen a less vulnerable man.  For the claimant it was said that likelihood should be interpreted by reference to what was said by Mr Justice Woolf, as he then was, in R v Swaffham Justices ex p Peter (1984) RTR 383, a case concerned with, among other things, Regulation 4 of the Heavy Goods Vehicles (Drivers' Licences) Regulations 1977 which requires an applicant for a licence not to suffer from any disease or disability "likely to cause the driving by him of a heavy goods vehicle to be a source of danger to the public".  In that context Mr Justice Woolf said "likely" meant "something more than a bare possibility but less than a probability".
11.	For the respondent it was submitted that it was clear from the letter of 27 May 2003 that the Review Officer did carry out the requisite risk assessment as to the claimant's vulnerability, and that an appellate court should be slow to interfere with an assessment such as that which was made by the housing authority in this case (see what was said by Lord Brightman in Pulhofer v Hillingdon London Borough Council (1986) AC 484).
12.	The judge concluded that the Review Officer had applied too high a test.  At page 7C of the transcript of his judgment he said:
"I think what he has done in actual fact is he has omitted there 'so that injury or detriment to you would have been likely to have resulted than when a less vulnerable person would be able to cope without harmful effect.'  I think that the consequence of that is this, that he is by that omission on the face of it looking to see something that is not a risk assessment but is looking at a very much more concrete situation than in fact he is, I think, required to look at by the test as laid down by Hobhouse LJ."
At page 8E of the transcript the judge said:
"I personally, if I am asked to decide the matter,  would favour the degree and the standard of proof as that set out in the decision of Woolf J in the Bennington v Peter case.  But that really in a sense is by the by because I think in this case the degree of risk assessment was overstated by the reviewing officer."
The judge then dealt with and dismissed a second ground of appeal with which we are not concerned.  At the end of his judgment he said that the Review Officer's failure to mention the code did not really advance the claimant's case and expressed the view that the code provided a slightly different gloss on the words of the statute.  
13.	In this court Mr Clive Jones for the council submitted that the judge was wrong to introduce a qualification which diluted the statutory test, as explained by Lord Justice  Hobhouse in Pereira.  Of course what anyone assessing vulnerability has to do is to think in terms of risk.  There cannot be certainty as to future events.  Neither the statute nor the judgment of this court uses the work "likely", and what the Act requires is that the person making an assessment  considers the available information and comes to a conclusion as to whether the claimant will be less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result.
14.	If the word "likely" is introduced that will only raise questions of its own as to what that word means, because, as Lord Nicholls pointed out in Re H (Minors [1996] AC 563 at 584 F, "likely" is a word which means different things at different times depending on the context in which it is used.  
15.	For the respondent Mr Russell submitted that when Lord Justice Hobhouse used the word "risk" that coloured all that  he said.  The authority has to consider the degree of risk.  That is an inherent part of the assessment of vulnerability as was recognised in Bowers and the formulation adopted by the Review Officer, although echoing what was said in Pereira, set the standard too high.  It led the Review Officer not to assess the degree of risk.  He did not explain his lack of reference to the code, and had he referred to the code he might then have approached the facts using the sort of test indicated by Mr Justice Woolf in Bennington v Peter, which would have been appropriate in the circumstances.
Conclusion.
16.	In my judgment the Review Officer patently applied the right test, echoing the words used by Lord Justice Hobhouse  in Pereira, and Judge Ryland fell into error when he decided otherwise.  The Review Officer did not misunderstand the test.  He knew that there would always be an element of uncertainty, but he had to consider the facts and reach his own assessment as to what would happen.  Would the claimant, when homeless, because of his reactive depression, be less well able to fend for himself than an ordinary homeless person so that he would suffer injury or detriment?  Detriment in that context might include, in a particular case, a significantly increased risk of suicide or of developing some serious ailment.  That would not have to be measured in percentage terms, and in my judgment the court should do nothing to add to the guidance already given by the statute and by Pereira.  The discretion should be left with the responsible local housing authorities.  But, in the light of this judgment, the Secretary of State might like to reconsider the wording of paragraph 8.13 of the code.
17.	I would therefore allow the appeal and restore the decision of the Review Officer.
18.	LORD JUSTICE CLARKE:  I agree.
19.	LORD JUSTICE JACOB:  I also agree.
Order:  Appeal allowed.