LAW REPORT : Asylum seekers had priority need for housing

LAW REPORT v 3 July 1996 : Regina v Kensington and Chelsea Royal Borough Council and others, ex parte Kihara and others; Court of Appeal (Lord Justice Neill, Lord Justice Simon Brown, Lord Justice Waite) 25 June 1996

The poverty and resourcelessness afflicting certain asylum seekers now deprived of all benefits by operation of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 was in law capable of constituting them "vulnerable" for an "other special reason" within the meaning of section 59(1)(c) of the Housing Act 1985, so as to put them in priority need of accommodation.

The Court of Appeal allowed appeals by Joseph Kihara, Telekeja Ilunga- Ilunga, Dragomir Pavlov and Lidya Araya against the decision of Mr Justice Popplewell, on 18 April 1996, refusing their applications for judicial review of decisions by, respectively, the Royal Borough of Kensington and Chelsea, the London Borough of Hammersmith and Fulham, the City of Westminster and the London Borough of Islington, that the applicants, though homeless, were not in priority need of housing.

Section 63 of the 1985 Act imposes a duty on local housing authorities to provide accommodation to an applicant whom they have reason to believe may be homeless and in priority need. Section 59 states:

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 . . .

The applicants were all asylum seekers who had been denied social security benefits pending determination of their asylum claims. They applied to the authorities for housing on the basis that they were "vulnerable" by virtue of a "special reason" namely their inability, having no income or capital and having been denied benefits, to pay for housing.

The judge took the view that "other special reason" was to be read with the words that went before it and construed ejusdem generis. Financial impecuniosity was not of the genus of "old age, mental illness or handicap or physical disability" and therefore did not constitute "vulnerability" within the meaning of section 59(1)(c).

Richard Drabble QC and Stephen Knafler (Clore & Co) for the first three applicants; David Watkinson (John Gallagher, Shelter) for Araya; Timothy Straker QC and Clare Roberts (Borough Solicitors) for the first, second and fourth respondents; Timothy Straker QC and Clive Jones (City Solicitor) for Westminster.

Lord Justice Neill said "vulnerable" meant vulnerable in the context of a need for housing. The ejusdem generis rule had no application for the purposes of construing "other special reason". This was a free-standing category which, though to be construed in its context, was not restricted by any notion of physical or mental weakness other than that inherent in the word "vulnerable" itself. The word "special" indicated that the difficulties faced by the applicant were of an unusual degree of gravity, and were such as to differentiate the applicant from other homeless persons.

Financial impecuniosity by itself was not a special reason within the meaning of section 59(1)(c). But it would be unhelpful and unrealistic to decide this appeal on the basis that the vulnerability of the applicants was to be attributed to financial impecuniosity viewed in isolation.

The words "other special reason" permitted an examination of all the personal circumstances of an applicant for accommodation. These circumstances would include, but were not limited to, their physical or mental characteristics or disabilities.

One turned therefore to the personal circumstances of the applicants. One could take as an example Miss Araya, a native of Eritrea who sought asylum. She had no capital or income. She was prohibited from obtaining employment and so had no opportunity of earning any money. She had no family or friends in this country. According to Shelter, she had no knowledge of the English language. Apart from any emergency accommodation made available to her, she was homeless.

Her situtation was clearly not unique, but her vulnerability marked her out from the great majority of homeless people. The situation of the other applicants was similar. They were in priority need of accommodation for an "other special reason" within section 59(1)(c).

Paul Magrath, Barrister