England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(HIS HONOUR JUDGE REID QC)

		Royal Courts of Justice Strand London WC2 Thursday, 26th April 2001

Thursday, 26th April 2001

1. THE PRESIDENT: I will ask Lady Justice Arden to give the first judgment.
2. LADY JUSTICE ARDEN: This is an appeal with the permission of Roche LJ from the order of His Honour Judge Reid QC sitting in the Clerkenwell County Court dated 20th December 1999, dismissing the appellant's appeal under section 204 of the Housing Act 1996 from a review by the respondent authority of its decision dated 11th May 1999 refusing special housing assistance to the appellant.
3. Section 204 of the Housing Act 1996 enables a person who is dissatisfied with any such decision on the review to appeal to the county court on any point of law.
4. At this point it is convenient to summarise the statutory background in the Housing Act 1996. I start with section 184. It provides that in material part:

"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such enquiries as are necessary to satisfy themselves --

(a) -

(b)... whether any duty, and if so what duty, is owed to him under the following provisions of this part.

(3) On completing their enquiries, the authority has to notify the applicant of their decision and, in so far as any issue is decided against his interest, inform him of the reasons for the decision."

5. Section 189 provides that certain persons have a priority need for accommodation. I need not read this section as it is common ground that the appellant has a priority need.
6. Section 190 sets out the authority's duties to persons becoming homeless intentionally. Subsection (1) provides that the section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance and are also satisfied that he or she became homeless intentionally. In those circumstances, if the authority are satisfied that the applicant has a majority need, they have a duty to secure, if accommodation is available, for such a period as they consider would give them a reasonable opportunity of securing accommodation for his occupation and to provide him with certain advice and assistance.
7. Section 193 sets out the duty of the authority to homeless persons having a priority need whom the authority are not satisfied became homeless intentionally. Subsection (1) provides so far as material that:

"This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need and are not satisfied he became homeless unintentionally..."

8. In subsection (2) it is provided that unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant. That duty can be contrasted with the duty to which I referred to in section 190.
9. Section 206(1) provides that:

"(a) local housing authority may discharge their housing functions under this Part only in the following ways -

(a) by securing that suitable accommodation provided by them is available...."

10. I need not read further from section 206.
11. Section 204, as I have already explained, enables a person who has requested a review by the local authority of its decision and is dissatisfied with the decision to the county court on a point of law. That leaves section 191, section 177, and section 175(3) to which I must refer.
12. Section 191(1) provides that:

"A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy."

13. The argument in this case has turned on the final clause of that sub-section.
14. The original section 191 has been described as the mirror image of section 175(3) which deals with the definition of homelessness. Section 175(1) states that:

"A person is homeless if he has no accommodation available for his occupation..."

15. Section 175(3) provides that:

"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to occupy."

16. The term "reasonable" is not defined in the Act. Some guidance may be obtained from section 177(2). This provides that:

"In determining whether it would be or would have been reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation."

17. In this case the relevant statutory question which the authority had to consider was whether it was reasonable for the appellant to continue to occupy a property known as 27 Linton Gardens not whether it was reasonable for her to leave that accommodation: see R v RB Kensington & Chelsea ex parte Bayani [1990] 22 HLR 406 at 409-410 per Neill LJ (a decision under the earlier provisions of the Housing Act 1985). It is established that this question must be judged at the time the appellant left that property and that in making its determination the respondent was entitled to take into account the matters specified in section 177(2). On the other hand, it is also established that when the respondent is considering whether it is reasonable for the appellant to continue to occupy 27 Linton Gardens, it must consider her individual circumstances, and then having done so, ask whether it is reasonable for her to continue to occupy the premises, and then they must balance those considerations against the considerations in section 177(2) or other relevant considerations.
18. It is also clear that the duty of the Court in this situation is to leave questions of fact to the respondent authority unless it is clear that the public authority, consciously or unconsciously, has acted perversely. The authority for that proposition is R v London Borough of Hillingdon ex parte Puhlhofer [1986] 1 AC 484 at 518. Therefore, the question in this case is whether the respondent's decision, which I will shortly explain, was it such that no reasonable decision could have been reached.
19. I now go to the background. The appellant is a Somali and her date of birth is 16th January 1967. She arrived in the United Kingdom on 1st September 1997. She was reunited with her brother and sister about a month later. She arrived with one small child, now about eight years old, and since her arrival she has given birth to two other children, one of whom is now two years old, and the other child who is obviously younger.
20. The appellant applied to the London Borough of Newham which accepted that it had a duty to house her as being homeless. On 19th January 1998, the London Borough of Newham provided the appellant with accommodation at 27 Linton Gardens, London E6. The appellant applied for housing benefit. In October 1998, she left 27 Linton Gardens and moved to her sister's address in Hammersmith on a temporary basis. Since before the appellant had left Kenya, where she had gone from Somalia, she had been suffering from memories of ill-treatment in Somalia, and I have to refer to this in more detail in due course. She says that her condition worsened and before she moved to live with her sister she was visiting her from time to time at the weekends.
21. After a while her sister was unable to house her and her family any longer, so the appellant applied on 5th February 1999 to Hammersmith and Fulham London Borough for temporary housing assistance on the ground that she and her family were homeless.
22. At her first interview she made no reference to the fact that she had been living at 27 Linton Gardens. At a further interview on 7th April 1999, she admitted that she had been living at 27 Linton Gardens but she asserted that she had given it up on the advice of Newham, but Newham have denied this, and there is a dispute about that particular matter.
23. On 11th May 1999, the London Borough of Hammersmith and Fulham gave its decision refusing her housing assistance. On 28th May 1999, the appellant applied for that decision to be reviewed and at the same time she made an application for discretionary temporary accommodation. The respondent authority refused discretionary temporary accommodation pending review.
24. On 7th June 1999, the appellant's solicitors submitted evidence in support of a review and a request for temporary accommodation to be reconsidered. This letter was the first mention of trauma suffered in Somalia. I do not propose to read from that letter setting out what had happened in Somalia as there is a statement from the appellant in due course, but I note from the letter that the solicitors also said that the appellant was isolated in Newham.
25. On 8th June 1999, the respondent reviewed their decision to refuse discretionary temporary accommodation but still refused to grant it. There was an unsuccessful attempt to judicially review the decision but the application was refused by Ebsworth J.
26. On 14th June 1999, Dr Steadman, a consultant psychiatrist, gave his opinion which is in the bundle at page 52A. It is a long opinion and I think it is sufficient that I summarise the relevant points which the psychiatrist makes. On the first page he states that he saw Mrs Noh, the appellant, on 13th June 1999 at his surgery, accompanied by her brother and an interpreter, and that he initially interviewed the appellant and then interviewed the brother separately.
27. He states that prior to seeing her he had the opportunity of reviewing her affidavit and that of her solicitor, Mr Clore, and her brother, Mr Noh, all dated 9th June 1999, and he had had the opportunity of reviewing the letters from the Hammersmith and Fulham Housing Services dated 11th May, 3rd June and 8th June 1999.
28. The points which Dr Steadman next makes may be summarised as follows. Dr Steadman states that the appellant is one of the most vulnerable people that he has ever seen in a long time. He is of the opinion that she suffers from a major post-traumatic stress disorder which greatly disabled her. He states that she has developed a post-traumatic stress disorder and a serious depressive illness, both of which are predictable and appropriate to her experiences. He also states that she should not be treated as a normal person because she is seriously mentally unwell. In addition he states that the fact that she had not been diagnosed on an earlier occasion as having depression was not medically significant.
29. At page 67 he states as follows:

"It is in my opinion, wholly unreasonable for Mrs Noh to continue to be expected to live in Newham. This lady is seriously mentally ill and I would urge you to bring my report to the attention of Hammersmith and Fulham Council with the utmost urgency."

30. The decision to refuse special housing assistance was reviewed again on 13th August 1999 but again refused. I will go to that decision in a moment. In the meantime the appellant had made an affidavit in which she had described what had happened to her in Somalia. That sets out her version of events as follows:

"4. I originally fled Somalia in June 1992. I was forced to flee as my life was in danger. I used to live with my parents, my brother and four sisters in Mogadishu. As members of the Marehan clan, we were aware in 1992 that we were at risk following the fall of ex-President Siad Barre two years previously. However I was not prepared for what happened to our family in June of 1992.

5. Without warning, whilst my brother was away, seven members of the Hawiye clan came to our house. They started violently assaulting my parents with rifle butts before shooting them both dead in front of me and two of my other sisters. They then tied me up and subjected me to appalling sexual violence lasting up to an hour before leaving me in the room with my dead parents. The whole place was covered in blood.

6. I managed to escape the country with my three sisters and ended up in Kenya where we were supported by the UNHCR in a centre for refugees. I was there until 1997 when I travelled to Ethopia.

7. During my stay at the centre I thought constantly of my mother to whom I was extremely close - we were like sisters and never apart. I had recurring images of her lying dead in front of me and I could not control my despair at times. However, I always had my sisters around me and they provided important solace."

31. In that passage the appellant describes the trauma which she suffered in Somalia. She also says in her affidavit that she cannot simply mix with Somalis from outside her clan and that she has about five close friends in Newham from her own clan, and she says and that most of the members of her own clan in London live in Hammersmith.
32. Her sister, Asha Noh, has also sworn an affidavit. She refers to the inconvenience of having to visit her sister in Newham which unfortunately takes her one and a half hours by public transport, and so far as her sister is concerned the fact that she was unable to travel long distances with a small child. Her brother, Abdi Noh, also put in a statement. He said that the sister cannot cope, and he says that in the summer of 1998 he called on her at least twice a week, and when he arrived the appellant would be in bed with a duvet over her head sitting in the middle of the sitting room floor crying and shaking uncontrollably.
33. I now go to the decision that was made by the authority and the critical decision under review. The decision of the authority was given in 11th May 1999, and the relevant part of it for present purposes is that part of it which states that in the opinion of the authority the appellant became homeless intentionally and that she had abandoned her property. It refers to the fact that in her application interview she stated that she had lived with a number of friends and relatives since her arrival in the United Kingdom, all temporary accommodation. The decision continues:

"You failed to mention that you had in fact made a previous homeless application to Newham Council, had been accepted for rehousing and, indeed, been housed by them.

The Council discovered that you had in fact claimed benefits from 27 Linton Gardens. During a subsequent interview on 7 April 1999, you admitted to having held a tenancy provided through Newham Council.

You stated that you had given this accommodation up after acting on the advice of Newham Council - namely that you had requested to be housed in Hammersmith and Fulham Council, and were therefore advised that the only way to do this would be to surrender your tenancy in Newham and apply direct to Hammersmith and Fulham Council. You stated that the reason you did not wish live at 27 Linton Gardens was because you felt isolated, not speaking English, and that you had a brother and a sister living in Hammersmith and Fulham.

This Authority made enquiries of your former Homelessness Officer, Ms Jan Brown, in relation to your claims that you were not in fact advised to relinquish your tenancy and apply direct to Hammersmith and Fulham Council, but were told on a number of occasions that Newham would not be able to house you outside their own borough.

Furthermore, if you had felt that you were acting on genuine advice, this would appear to contradict the fact that you deliberately failed to tell Hammersmith and Fulham Council that you had been previously housed by another borough. During your interview of 7 April 1999, you stated that friends had advised you not to declare your address at 27 Linton Gardens, and you decided to act on this advice.

Weighing all these factors very carefully, the Council is satisfied that your present state of homelessness is directly related to your deliberate act of abandoning your former tenancy at 27 Linton Gardens, London E6."

34. The authority then went on to make the points that the appellant had not been evicted from that accommodation, that it was suitable for her, and while they accepted that she must have felt isolated at the property in relation to whether or not it was reasonable for her to continue on the property the authority could have regard to other facts. Then it set out the facts including the fact there were Somalis living in Newham and that her daughter had in fact a place in school, although just outside of the catchment area for 27 Linton Gardens, but still within the borough of Newham. It also took into account the general prevailing conditions in both Hammersmith and Fulham and in Newham both known to be at an acute shortage.
35. I can then go to the decision on 13th August 1999. As I said, this decision also refused special housing assistance to the appellant. The decision was signed by Mr Dave Worth, Advice and Assessment Manager, Homelessness and Advice Service. It comes to the same conclusion on the question of the cause of the appellant's current homelessness, namely the cause that was her departure from her accommodation in Newham.
36. I then go to the question of social isolation, and I read from the decision on the third page:

"It has been your contention that it was not because your client felt socially isolated in that area to such an extent that the accommodation was not reasonable for her to continue to occupy.

You contend that this is because she was and is suffering, on the basis of the opinion of Dr Steadman, from serious mental ill-health relating to post traumatic stress disorder routed in her experiences in Somalia. Further, that because of this she was particularly reliant on the support of her brother and sister who both live in this area and that this support was not available because of difficulties in commuting and also because there was not any established Somalian community, of her particular clan, in the area and so she was unable to seek support from Somalian persons from other clans, who have been in any event antagonistic to her because of her clan identity.

On the medical issue, I have given careful consideration to Dr Steadman's report and the opinion that he offers on the reasonableness of the accommodation. I take into account that there is no contemporaneous history, of the diagnosis given by Dr Steadman, being confirmed by other medical professionals at the time when your client was living in the property.

It is apparent that she did not seek or receive any medical intervention for the problems recently diagnosed. It is equally apparent that Dr Steadman made his diagnosis on the basis of a one off consultation following a referral from yourself, acting in your capacity as her solicitor, and without the benefit to any previous medical reports or opinion. Even allowing for those factors, and having discussed his report with the Council's Medical Advisor, I have no difficulty in accepting the medical opinion that Dr Steadman outlines in his report.

However, I do not agree with his opinion as to the effects of this on the issue of reasonableness to continue to occupy. Whilst I accept that social isolation is capable of rendering a property unreasonable for someone to continue to occupy I am satisfied that, on the particular facts of this case, the accommodation occupied by your client was reasonable for her continued occupation.

I accept that your client was not happy living there but do not accept that it was essential to her medical well-being for her to live in closer proximity to West London generally or this area specifically.

Although some distance away, it has been confirmed that her brother and/or sister were able to travel there on a weekly basis and it is equally clear that your client would have been able to travel the other way to draw support. There was a reasonably straightforward journey by public transport.

Further, I note that the medical/social issues are the sole reason why you contend that the property was not reasonable. No issue has been raised about the physical suitability of the property which was, as you know, a two bedroom property offering exclusive use of all facilities. No issue about harassment from other parties has been raised in the course of this review or disclosed by our own enquiries.

In reaching my decision I have taken into account the prevailing housing conditions in the Newham area, in this area and in London generally. As you know, there are sizable asylum seeker communities in many parts of London.

By way of illustration, recent figures suggest that Social Services departments across London are providing temporary accommodation for over seventeen thousand ineligible asylum seekers and that London housing departments were providing temporary accommodation under Part VII for over 34 thousand households of which around a quarter were eligible asylum seekers. The London Boroughs of Newham and Hammersmith and Fulham figure significantly in these reports. For example, at the time of writing this borough has 389 asylum seeker households placed into section 188/section 193 accommodation out of about 950 and asylum seekers represent about a quarter of new cases picked up under section 188.

From my own knowledge and experience, problems such as those affecting your client are reasonably common and this is suggestive that many former and current asylum seekers experience various degrees of isolation and mental health problems such as post traumatic stress disorder and/or depression.

In an ideal world, asylum seekers and former asylum seekers would be able to live in very close proximity to their relatives so as to draw support but the reality of the housing crisis in both boroughs, across London generally and as it applies to asylum seekers means that such ideals cannot and have never been met.

Bearing in mind these prevailing housing conditions and on the facts of this case, I do not accept that living in Newham when her relatives lived in West London made the accommodation left unreasonable for your client to occupy. Travelling was certainly possible although it would have been less convenient. Help with bathing etc could in theory have been provided through the assistance of social services in Newham but, on the basis of the facts as I know them, was not requested."

37. I can now turn to parties' submissions. To recap, the issue here is whether the authority's decision was unreasonable - was it such that no reasonable decision-maker could have reasonably reached?
38. For the appellant, Mr Knafler makes the following submissions. The respondent had to ascertain the appellant's mental condition and to ask whether in the light of her condition it was reasonable for her to continue to occupy 27 Linton Gardens. Mr Knafler for the appellant has criticised the decision because it refers to the appellant as socially isolated and not happy. In fact she is mentally ill. He submits that the medical opinion was that it was unreasonable for her to continue to remain at 27 Linton Gardens, and the decision fails to take account of the fact that Dr Steadman described her as one of the most vulnerable people he had seen in a long time. In disagreeing with his opinion as to the effect of unreasonableness, the decision had failed to give effect to the medical opinion and failed to take into account the appellant's individual circumstances, in particular her need to live nearer her siblings. Mr Knafler submits that the decision treats the appellant as a normal person. He also submits that the respondent asked itself the wrong question, namely whether it was "essential" for her medical well-being to live near her siblings instead of the right question, whether it was reasonable for her to continue to occupy 27 Linton Gradens. The medical evidence was that it was unreasonable for her to remain there. Moreover the local authority failed to have regard to the fact that in Dr Steadman's opinion it was in effect essential for her to live nearer her siblings. If there was any doubt about that, it should have asked Dr Steadman as to his opinion. The appellant did not voluntarily seek the situation which she now is in. In essence the housing authority had failed to give effect to the medical opinion of Dr Steadman.
39. For the respondent, Miss Clare Roberts submits there is no challenge by the authority to Dr Steadman's medical conclusions but the question is whether it is reasonable for the appellant to have remained at 27 Linton Gardens. That was a question for the authority. The respondent could take into account the possibility of public transport to her sisters and brothers. With regard to the references to social isolation, the decision refers to support because the appellant and her brother had said that it was not available. Social isolation was raised by the appellant's solicitors in their representations and therefore it was appropriate for the decision-maker to refer to social isolation. Likewise, the respondent had referred to the fact that the appellant was unhappy again because this had been raised by the appellant.
40. With respect to Mr Knafler's submission that the authority had wrongly misdirected themselves as to whether it was essential for the respondent to be near her siblings, Miss Roberts submits that the particular paragraph in the decision merely records a relevant consideration and does not state not an alternative test. The decision clearly refers to the test of whether it was reasonable for her to continue to occupy and makes references to it in several places. On her submission, the decision does not refer to travel as a panacea. It is a fact that the journey was reasonably straightforward and this was a relevant consideration although the respondent recognised that it would be less convenient.
41. As to Mr Knafler's submission that the respondent authority had applied an objective test without reference to the appellant's particular circumstances, the decision does consider, in Miss Roberts' submission, the individual circumstances of the appellant's case but on the other hand the shortage of housing was a factor which the respondent was entitled to take into account by virtue of section 177(2) of the Housing Act 1996. There is an objective element in the test of unreasonableness to occupy.
42. Miss Roberts disputes the suggestion that the respondent treated the appellant as a normal person once the medical evidence of Dr Steadman was supplied. In summary, Miss Roberts submits that the decision of the authority was not perverse. In relation to section 177(2) she relies on R v London Borough of Newham ex parte Tower Hamlets [1991] 23 HLR 62 at 80-81, in which Taylor LJ deals with a point which is not dealt with by the other members of the Court, namely the meaning of the expression "the general circumstances prevailing". In section 60(4) of the Housing Act 1985, the predecessor of section 177(2), he states as follows:

"The provision in section 60(4) that regard may be had to 'the regarding the general circumstances prevailing' is in my view primarily intended to allow an authority to take into consideration any shortage in its housing stock, the size of its waiting list, existing priorities and other problems bearing upon its ability to absorb and accommodate another family unit. The section is framed so as to permit those considerations to bear not upon the duty to have but upon the issue whether the applicant was reasonable in leaving his former accommodation. Yet, when he made his decision to leave, he is unlikely to have known 'the general circumstances prevailing' in the area to which he subsequently applied to be housed. He reiterates this is a satisfactory approach has been called into question before but the statute remains in that form."

43. Miss Roberts' submission, with which I agree, is that the point being made, which is an important and useful point, is that the local authority can look beyond the authority's stock of housing to other factors including the ability to absorb and accommodate another family unit. That is clear from the passage that I have read from the decision and is particularly relevant when the local authority has a large number of asylum seekers, many of whom will make special calls on under the resources of the local authority.
44. In this connection it is pertinent to refer to an authority on which Mr Knafler relies, namely R v Brent London Borough Council ex parte Bariise [1999] 31 HLR 50 at 58. This authority makes it clear that the body best able to form a view of the general circumstances is in fact the local authority itself. In this case the relevant decision was made by the homeless panel of the local authority. Housing. Millett LJ said:

"It is very much a matter for the Panel's experience to know whether or not the seriousness of the respondent's complaints took her case out of the ordinary. The Panel came to the conclusion that it did not. We cannot possibly say that this was wrong.

There is a housing crisis in the borough. The Panel is in the best position to assess the seriousness of the general conditions in the borough and the extent to which the respondent's complaints took her case out of the norm and make it unreasonable for a particular person to remain in occupation of the property, having regard to the general conditions in the Borough".

That passage emphasises the point that the local authority is in the best position to assess the position of the borough.

I have not yet referred to the decision of the judge, since the matter has somewhat evolved since it came before him, but it is fair to say that he considered the matter most carefully, and I can briefly summarise some of the points that he makes. He had a number of submissions put to him, including a criticism of the authority's approach to the opinion of Dr Steadman and particularly the passage that I cited. The judge said that Dr Steadman was required to look at only one side of the coin whereas the local authority would have to look at both sides of the coin and that to fail to accept what Dr Steadman said about unreasonableness of remaining at 27 Linton Gardens did not constitute an error of law.

He also makes a point about transport. He submits that in an ideal world it would be desirable for the family to live in closer proximity and that he rejects the criticism of the report on the basis that it referred all the travelling being inconvenient.

The third attack which was made before the judge was on the question of whether the decision-maker was right to ask whether it was essential for the appellant to leave her accommodation, and the judge concluded that the decision-maker addressed the correct test and gave the answer on the basis of the correct test.

In relation to the references to the word appellant's unhappiness, he found that that was a consideration which the decision-maker took into account in order to respond to points that had been made on behalf of the appellant.

Lastly, the judge rejected the submission that the appellant's case was clearly exceptional and, as it were, out of the ordinary in terms of the decision, and said that, sadly, her case was not wholly exceptional. In the event, the judge held that the decision was not perverse and he dismissed the appeal.

In my judgment, the judge came to the right conclusion. I shall set out my reasons. We have been referred in the written submissions to the fact that the decision refers to social isolation and unhappiness. I agree with the judge that these points were made by the appellant or had been made on her behalf. It is, in my judgment, also clear that the local authority took full account on the medical issues of the medical opinion of Dr Steadman.

However, the issue of reasonableness to continue to occupy, which is the statutory test of intentional homelessness, in my judgment was a matter for the authority itself and it would have been wrong for them to simply adopt the medical opinion of Dr Steadman on that point. As I see it, Dr Steadman in using the words "wholly unreasonable" is expressing a purely medical opinion. The use of those words was perhaps a little unfortunate because Dr Steadman's expertise was on medical matters. As I read it, what he said was that it would be much preferable from the point of view of the mental health of the appellant if she lived closer to her brother and her sister.

In my judgment, while I do not wish to criticise Dr Steadman, it would have been more helpful to this decision-maker if he had actually expressed his opinion in medical terms. Although, as I have said, I do not consider that he in fact expressed an opinion other than a medical opinion. Because he was expressing an opinion on medical matters, it is not right for us, or to counsel, to speculate about whether he was saying anything more than that it would be much preferable for the appellant to live near her siblings, for instance, that she would suffer a mental and nervous breakdown if she did not do so. As I see it, that would be speculation.

If I am wrong and Dr Steadman in fact expressed an opinion on the very issue which the local authority had to be satisfied about, namely whether it was reasonable for her to continue to occupy 27 Linton Gardens, then he would have expressed an opinion on the ultimate issue for the authority under section 191. As I see it, that decision is one which falls for the local authority to make. The fact that Dr Steadman expressed an opinion on that point is a matter which the local authority must of course take into account, but it is not bound to accept it. It is still for the local authority to take the relevant decision, that is as to whether or not it is are satisfied that the appellant was intentionally homeless.

The position here is not dissimilar to that in civil proceedings. We have been referred by the President to the decision In Re M and R [1996] 2 FLR 195. That case considered section 3 of the Civil Evidence Act 1972. This deals with the reception of expert evidence in civil proceedings and provides that, subject to any rules of court made in pursuance of the Act, where a person is called as a witness in any civil proceedings on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence. The section then defines "relevant matter" as including an issue in the proceedings in question.

The court in Re M and R decided that, contrary to the former position in which an expert was not entitled to express an opinion on the ultimate issue to be decided by a Court, it was clear that under the Civil Evidence Act 1972 an expert could express an opinion on an issue which the Court itself had to determine. I need not set out the a court's analysis of the provisions to be found in that Act. However, Henry LJ giving the judgment of the Court gave the following guidance:

"So the passing of the Act would not operate to force the court to, in Wigmore's words, waste its time listening to superfluous and cumbersome testimony provided the judge never loses sight of the central truths, namely that the ultimate decision is for him, that all questions of relevance and weight are for him. If the expert's opinion is clearly irrelevant he will say so. But if arguably relevant but in his view ultimately unhelpful, he can generally prevent its reception by indicating that the expert's answers to the questions would carry little weight with him. The modern practice is to regulate such matters by way of weight rather than admissibility. But when the judge is of the opinion that the witness's expertise is still required to assist him to answer the ultimate questions (including, where appropriate, credibility) then the judge can safely and gratefully rely on such evidence while never losing sight of the fact that the final decision is for him."

45. Section 3 does not of course apply when the local authority is making decisions under Part VII of the Housing Act 1996, but it is not for that point which I refer to this authority but rather for the usefulness of the guidance given by the Court in that case as to the proper approach for the judge to take where an expert does in fact give an opinion on the ultimate issue which the judge has to decide. The opinion of the expert is a relevant matter for the Court to consider, it can be guided by it if it is useful, but at the end of the day the final decision is clearly for the court. As I have said, the decision under section 191 was for the local authority. So far as expert evidence on the issue which the local authority has to decide is concerned, the local authority can adopt the same approach as I have described. It knows, in any judgment, that the approach of the local authority in the present case, which was to accept the medical opinion of Dr Steadman but then not to accept his views as to the effects of the medical condition on the question of reasonableness was one which the local authority was fully entitled to take.
46. Contrary to Mr Knafler's submission, in my judgment, when the decision is read as a whole, the local authority did not apply the wrong test. It was clearly entitled, as Miss Roberts submits, to consider the availability of housing and the demands being made on the authority's resources and its capacity to absorb homeless families.
47. In relation to the applicant herself, the authority must have regard to individual circumstances. It must consider her case in that sense objectively. Mr Knafler submits it can be irrational to balance general housing conditions against personal circumstances and in this connection has cited R v Brent London Borough Council ex parte Omar [1991] 23 HLR 446. He submits that the present case is indeed out of the ordinary scale, indeed an a fortiori case. In Omar the circumstances were such that Henry J found that the decision of the local authority that certain accommodation was suitable for the appellant was perverse. As I see it, each case which comes before the court in this field has to be decided on its individual facts. In the Omar case there were very different facts from the present case. There were several medical reports, that of the general practitioner, the consultant psychiatrist and the district medical officer, and it is clear that the appellant in that case was a suicide risk. In this case there was one report made on the basis of a single consultation and as far as the court knows from the evidence the appellant has not received any treatment for her condition.
48. The position here is that the local authority weighed all of the relevant considerations. It did so, as I see it, and came to the conclusion that in its experience her situation was sadly not uncommon, and therefore that it could not offer her temporary housing accommodation, and that it was reasonable for her to have continued to occupy 27 Linton Gardens. The question for this Court is whether it was unreasonable for it to have reached that conclusion. For the reasons given above I am satisfied that it did not come to a conclusion which was perverse or unreasonable. I would therefore dismiss the appeal.
49. LORD JUSTICE MUMMERY: I agree.
50. THE PRESIDENT: I agree that the judgment of Lady Justice Arden is correct and I agree with it. Therefore the appeal is dismissed.
(Appeal dismissed; no order for costs; legal aid assessment)