Appealing a homeless decision on a point of law

Carmel Ferguson, Solicitor with Housing Rights, looks at another successful homeless appeal carried out by Housing Rights Service.  As experienced advisers will be aware, an appeal can only be heard in the County Court if the case involves an error of law.

The client in question, Thomas, was 50 years old and single.  Thomas had been living in a hostel for about six months.  He had a history of addiction problems and was suffering from depression and anxiety.

Thomas asked for a homelessness assessment.  The Housing Executive’s decision was that, though Thomas was homeless, he did not have priority need, and so the decision maker considered that it did not have a duty to secure that accommodation was made available to him under the Housing Northern Ireland Order 1988.

A hostel support worker at Thomas’s hostel requested a review, but this resulted in a further negative decision.  Thomas’s support worker then contacted Housing Rights Service and the case was passed to our legal team, as Thomas’ only attempt at getting a fresh decision is if there were grounds to appeal to the County Court.  Since an appeal can only be mounted if there has been a procedural error or a failing on a point of law, not all cases can proceed to appeal.  For this reason, it is vital that a homeless review is carried out by someone very familiar with homelessness law and case law and with the new procedures for requesting a review.

This case’s “point of law” failings

A point of law failing or error of law is an error in the application of legal principles considered.  On closer inspection, it seemed as though the decision maker had failed to apply the law correctly in a number of areas.

Proper enquiries were not carried out

Article 7 of the Housing (NI) order 1988, as amended, states that the Housing Executive shall make

“such enquiries as are necessary to satisfy itself as to whether the applicant is homeless or threatened with homelessness”

Article 5 of the Housing (NI) order 1988 defines those who have a priority need for accommodation including 

“a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason“

In Thomas’s case there was no indication that the decision maker had made proper enquiries to establish whether or not Thomas was vulnerable.  They had not, for example, spoken with Thomas’s GP. It is a matter for the Housing Executive, not the client, to make the necessary enquiries to establish whether an applicant is owed a duty.  Thomas had also provided a report from a counsellor, which was not referred to in the decision letter.

Over reliance on disability benefits to prove priority need

The decision letter referred to the fact that the client “does not receive any disability related benefits but is in receipt of JSA indicating a capacity to hold down employment”

There is nothing in the relevant legislation to say that receipt of a particular benefit is proof of priority need. Each case must be assessed by looking at the individual circumstances of the applicant. My view was, therefore, that the decision maker applied the wrong test in considering whether the applicant was in Priority Need.

Using case law to determine vulnerability

The decision letter stated that Thomas “would not be any more vulnerable than an ordinary person whilst homeless”.

The term vulnerability is not defined in the legislation but has been defined in case law, (R v Camden LBC ex parte Pereira (1998) 31 HLR 317, CA) as the applicant being,

“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.”

Determining vulnerability is a composite decision.  It involves not only the issue of whether applicants  can find and keep accommodation, but also whether they are less able to fend for themselves and cope with homelessness than an ordinary homeless person, and that they would suffer injury or detriment in circumstances where a less vulnerable person would not.

Given the applicant’s history of addiction and mental health issues, I found it difficult to understand how it was concluded that he could cope with being street homeless without harmful effects.

In the decision letter, Thomas’s vulnerabilities appear to have been dismissed by the assessor on the grounds that he is seeking employment. There was a passing mention of anger management but no apparent consideration given as to how this might affect his ability to cope when street homeless.

Proceeding to appeal

I applied for, and was granted, Legal Aid to appeal the decision to the county Court. A notice of appeal was lodged on the grounds that the decision maker had:

1. failed to carry out necessary enquiries pursuant to Article 7 of the Housing (NI) Order 1988
2. misdirected itself as to the law in considering whether the Appellant had a priority need
3. reached a decision, which proceeded on the basis of incorrect assumptions of fact
4. failed to take account of relevant factors
5. paid regard to irrelevant factors.

After consideration of the Notice of Appeal, the Housing Executive agreed to quash its earlier decision and consider the application afresh.

On reconsideration, Thomas was found to be homeless and in priority need. He was accepted as a Full Duty Applicant who is entitled to have suitable accommodation secured for him by the Housing Executive.

Further reading on homeless review and appeals

Housing and support staff who regularly assist people who are homeless or who are likely to become homeless should familiarise themselves with the process for carrying out a review and appeal, introduced by Section 5 of the Housing (Amendment) Act (NI) 2010.

Housing Rights publishes a Professional Resource on this topic.  We recently ran an Adviser Masterclass on this issue, showing participants how to properly construct an effective homeless review and how to include relevant case law to make persuasive arguments to decision makers.  If you would like to find out more about this course, or request that we deliver it in-house to your staff, please contact Bronagh McCulla