England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 97/1098/4

IN THE COURT OF APPEAL (CIVIL DIVISION) FC3 98/6500/4

(MR G MORIARTY QC sitting as a Deputy High Court Judge )

Royal Courts of Justice

The Strand

London WC2

Thursday 9th July, 1998

B e f o r e:

LORD JUSTICE PETER GIBSON

LORD JUSTICE SCHIEMANN

LORD JUSTICE MUMMERY

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R E G I N A

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THE MAYOR AND BURGESSES OF THE LONDON

BOROUGH OF SOUTHWARK

Appellant

ex parte PATRIZIA CAMPISI

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR A ARDEN QC and MISS J HENDERSON (Instructed by Head of Legal (Contract) Services, London Borough of Southwark, 30-32 Peckham Road, London SE5 8UB) appeared on behalf of the Appellant

MR N PLEMING QC and MISS J MAXWELL (Instructed by Messrs Jockelson & Kibbler, London SE17 1RW) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday 9th July, 1998

JUDGMENT

LORD JUSTICE PETER GIBSON: I will ask Lord Justice Schiemann to give the first judgment.

LORD JUSTICE SCHIEMANN: Miss Campisi and her children became homeless as a result of the violence of the children's father, with whom she had been living. She applied to the local authority for housing accommodation under Part III of the Housing Act 1985. They accepted that she was unintentionally homeless and in priority need and that, by reason of section 65(2) of that Act, a duty was owed to her to provide her with suitable accommodation.

Many years ago she was smitten with polio of the left leg. This has a significant effect on her mobility. This is of relevance when considering whether or no particular accommodation is suitable for her and her family. The local authority made her four offers, none of which were what she regarded as suitable accommodation. Her criticisms of the accommodation offered on those occasions were accepted as justified. The local authority then made her a fifth offer which she accepted, that was of Larnaca House. She signed the tenancy agreement on 22nd May 1996. It is common ground that that offer was of suitable accommodation as at that date and that, as at that date, the local authority discharged the duty imposed by section 65(2). In the absence of any changes thereafter, either in the applicant's situation or of the conditions of the house, nothing more was required of the local authority under the Act. It is common ground and established in a case called R v Ealing London Borough Council ex parte McBain [1985] 1 WLR 1351, in the Court of Appeal, that if there were such changes then a duty might arise.

However, Miss Campisi did not move into Larnaca House. Initially this was because the flat was uncarpeted which was dangerous for someone with her medical problems, as was explained in a letter written by her consultant on 27th June 1996. Moreover, there were some minor repairs which no. 10 Larnaca House required, but nothing now turns on those matters.

However, from 6th August 1996 onwards, a series of written and personal contacts with the local authority, she submitted to the local authority that her situation since 22nd May had changed. She submitted that, by reason of those changes, Larnaca House was no longer suitable and that in consequence she was homeless and that the local authority once more owed her a duty under section 65(2), which could not be discharged by offering her Larnaca House.

The local authority rejected those submissions. The nearest they get to a formal incorporation of that decision to reject the submission, is a letter of 6th February of 1997, written on behalf of the Head of the Legal (Contract) Services. That deals with a whole variety of matters but ends up:

"You would no doubt agree that the Authority has indeed assisted your client in all the circumstances. The Authority have complied with their statutory duty and [it] is the Authority's case that it does not owe any further duties towards your client."

The legality of that rejection was challenged by Miss Campisi by an application for judicial review. Such a rejection can, in my judgment, only be challenged in the courts on the usual Wednesbury grounds. A conclusion which was thus formulated by McCullough J in R v London Borough of Tower Hamlets ex parte Saber 24th HLR 611. His comments appear at page 621.

The decision in the present case was taken by Mr Gerald Moriarty QC sitting as a deputy judge of the Queen's Bench Division. He sustained Miss Campisi's challenge. The local authority appeals to this court. The crucial task before the court in this type of situation is to identify the alleged changes and then to consider whether the local authority committed any error of law in deciding that the changes were not sufficiently significant to give rise to a new duty to provide suitable accommodation.

Clearly the mere assertion that an applicant's claim ought to be reconsidered cannot impose upon the local authority the onerous duty of making inquiries and considering the case afresh. That much is accepted by Mr Pleming QC on her behalf. So to do would put the local authority under a duty to accommodate her, pursuant to section 63, whilst they pursued a new round of inquiries. An applicant could thus, by permanently renewing applications, put a local authority under a continuing duty to accommodate her. At the other extreme, equally clearly where there has been a material change of circumstances (for instance the applicant has become a mother) then the local authority must reconsider the matter. The position is similar in some respects to that which appertains when there are repeated claims for asylum by an immigrant after an initial claim has been rejected. That position was recently considered by this court in a case called Chakagay v the Home Secretary , which is not yet reported.

The statute in the present case makes no express provision as to what is to be done in the case of repeated claims for accommodation by the same person. The second claim may be identical to the first ("a repetitious claim") or it may be different ("a fresh claim"). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim, whereas a repetitious claim does not.

In the case of a repetitious claim, no more is required to be done. The first decision has ensured that the authority has complied with its legal duty. In the case of a fresh claim, the local authority must make a decision on that fresh claim. The difficulty lies in the cases where the claimant asserts that she has made a fresh claim, whereas the local authority categorises the claim as repetitious; by what test is this dispute as to categorisation to be resolved? In my judgment, the local authority is entitled to proceed by starting with the assumption that the first decision as to suitability was correct and then going on to consider whether, disregarding material which is insignificant or incredible, or which was available to the applicant at the time of the determination of his first claim, the new material placed in front of the local authority gives reason to believe that the decision as to homelessness ought to be reversed. This process inevitably involves making a judgment as to the significance and credibility of the new material.

It was submitted by Mr Pleming (who has not had a chance to look at the decision in Chakagay) that as a matter of precedent fact this court could form an initial view as to whether or not the new material amounted to a fresh claim rather than a repetitious claim. In my judgment that is wrong. The precedent fact doctrine is not appropriate for a situation such as the present where there is some evaluation involved. I would hold that a local authority's decision that there had been no material change in circumstances can only be challenged on Wednesbury grounds.

The judge, when he considered the present case, went very carefully through a series of correspondence. One of the unfortunate matters was that there was a letter of 6th August which set out the applicant's case to the effect that there had been a material change. Her solicitors said that:

"Shortly after signing the tenancy agreement Ms Campisi learned from her Consultant ... that she would have to have an operation in the very near future. We enclose herewith Dr Heatly's letter of 27th June 1996 which states that her knee joint has been progressively more painful and she may well have to have surgery. Since the letter was written Ms Campisi has learnt that she will definitely have to have surgery very soon and maybe in hospital and thereafter immobile for some considerable period of time. When she accepted Larnaca House she thought she would be able to manage because it was about three miles away from Ms Derby's house [who is evidently her friend], now she considers she will be unable to manage her two children whilst immobile after the operation.

We are writing to request the London Borough of Southwark rescind the tenancy agreement signed on 27th May 1996 and offer Ms Campisi accommodation nearer to Ms Derby. We have asked Mr Heatly to write a further letter in support."

Unfortunately, for reasons which are not clear to us and perhaps not clear to anybody, neither that letter nor its two or three follow-up letters, which included photocopies of the original letter, appear to have percolated through to the appropriate decision-makers in the authority. What did percolate through is a further letter from her consultant, Mr Heatly, of 14th November 1996 which, however, was not sent by her solicitors to the authority until 31st January 1997. In that letter he says this:

"I would be strongly in support of the fact that Patricia should be rehoused in suitable accommodation, somewhere in reasonably close vicinity to her friends. She is genuinely struggling with her weak old polio left leg. Her symptoms and signs are gradually localising to the left patella which is unstable. I have put her down on my waiting list for an arthroscopy. This is largely a fact finding exercise to see if I can confirm the diagnosis. To be honest I am apprehensive about doing a stabilisation procedure on this weak left leg. She does need to have both suitable housing and to be near those who can help her since however clever I happen to be as a surgeon, I don't think I will get this left leg good enough for her to manage bringing up a family without assistance. I would therefore be strongly in support of the sentiments which you express in your letter."

The last sentence does not help us because we have not been shown the letter.

In my judgment, it is a reasonable construction of this letter that the consultant considers there is a possibility that she will need a major operation but that if she does not, she will continue to suffer from her weak old polio left leg and that her suffering is getting worse. The consultant takes the view that she needs, not only as a matter of psychology but as a matter of physical health, to be close to someone (he calls it "friends" because that is the obvious and cheapest answer but no doubt at a price the local authority or the National Health Service could provide someone to do the shopping and such like).

The submission of Mr Pleming was that the material in front of the court indicates that the local authority failed to take these points into proper consideration. The position of authority was that by that stage it had obtained a possession order in respect of the Larnaca House flat, but had not yet executed it. They received on or just after 31st January a letter from Miss Campisi's solicitors which enclosed the letter from Mr Heatly, to which I have just referred, and states that:

"When she accepted the tenancy she was not aware of the medical need to be near assistance. She became aware of this shortly afterwards. We wrote to Southwarks Legal Department on the 6th August requesting that [she] be given a further offer near her close friend ... She has not received Southwark's reply and since we wrote the letter the medical support [by which they mean the letter] has become available."

As I say, the reply of the local authority is one that does not address the crucial question: "Is there here a material change of circumstances, such that we should make her an offer of new accommodation, other than the offer that she has already had?" The judge took the view, as I read his judgment, that there was material capable in law of amounting to a material change of circumstances and the authority had failed to address the question: did it amount to a material change of circumstances? Certainly there was no suggestion that the medical material from the consultant had been placed before the Medical Assessment Unit.

In an endeavour to, as it were, fill a gap (if one can put it that way) in the decision-making process, the local authority filed a couple of affidavits which set out a fair amount of the long history of the matter, but do not specifically say that the question, which I have identified, was addressed by the authority by the time of the letter of 6th February which is now under challenge. The gist of the material put into both affidavits is a vast amount of exhibited material from various files in the possession of the local authority, from which a variety of facts can be gleaned. What is conspicuous by its absence is a reasoned assessment by anyone of whether or no there has been a material change of circumstances since the original decision of May 1996.

The submission made by Mr Arden, who appears for the authority, is that the present situation is not one in which the authority is required by statute to give a reasoned decision letter because this is merely, to adopt my terminology rather than his, a categorisation decision rather than a substantive decision. For my part, I see a certain force in the way that he puts the point. He submits further that what the affidavits indicate is that the authority now (or at any event the persons responsible for the affidavit who were probably the effective decision-takers in the authority) take the view that is does not consider that the fresh change in circumstances warrants a fresh consideration of her application with all the statutory consequences that that imposes.

My mind has varied in the course of this hearing on the peculiar facts of this case, which are close to the borderline. But I have come to the conclusion that the learned deputy judge was right; that in the circumstances of the case the authority did have a duty to address the question which I have identified; that the material leads one to suppose that they did not address the question. Their files were in such a state that one can have absolutely no confidence that somebody actually sat back and seriously thought about it, as opposed to a lawyer afterwards reconstructing from various bits of mosaic to be found in various files, something which could have been a perfectly reasonable decision.

In those circumstances, for my part, I would not interfere with the decision of the learned judge that the case ought to go back.

LORD JUSTICE MUMMERY: I agree that the appeal should be dismissed for the reasons given by my Lord.

LORD JUSTICE PETER GIBSON: I also agree.

ORDER: Appeal dismissed with costs. Legal aid taxation of the respondent's costs.

(Order not part of approved judgment)

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