England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE PITCHFORD)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 21 August 2002

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal made by Mr Saria Anas, who has appeared as a litigant in person with the assistance of Mr Suleiman Feitury. Mr Anas wishes to appeal from an order of Pitchford J made in the Administrative Court on 10 July 2002 refusing him permission to apply for judicial review of a decision by Mr Hugh McGeever, the Operations Director (Assessment and Advice) of the City of Westminster's Housing Department.
2. Mr McGeever's decision was embodied in a letter dated 28 February 2002 sent to Mr Anas. It was taken on a review under section 164 of the Housing Act 1996 of the local housing authority's decision to remove Mr Anas from its housing register maintained under Part VI of the Housing Act 1996.
3. A local housing authority has a statutory power, conferred by section 163(5) of the Act, to remove a person from its housing register if it thinks fit. That power must not be exercised in an arbitrary way, but it is common ground that a prospective tenant's unreasonable refusal of an offer of suitable accommodation may be a sufficient reason to remove his name from the register. That was Westminster City Council's policy.
4. Mr Anas had been offered, but had declined, a permanent tenancy at 2 Avon Court, Elmfield Way, London, W9. That is a two-bedroom, ground floor flat in a new development just off the Harrow Road. It is owned by a Housing Association. Mr Anas is 34 years of age. He is married with two children. He felt that the flat at 2 Avon Court was not suitable because of his health problems and his need to be near what he called his support community, and that he was not, therefore, acting unreasonably in turning it down.
5. Much of the history of the matter can be traced by documents in the appeal bundle, although the history is rather confused by the fact that Mr Anas has changed his name more than once. In January 2001 proceedings between Mr Anas (then called Safwaan Ibrahim) and the City of Westminster were compromised in the Central London County Court. On 15 March 2001 the Assessment and Advice Centre wrote to Mr Anas accepting that other accommodation, 13 Hanwell House, offered to him was not suitable because of his medical condition. Mr Anas was then in temporary accommodation at 69 Queensborough Terrace, London, W2. Later, he was in temporary accommodation at 1 John Aird Court, London, W2.
6. On 20 July 2001 the Assessment and Advice Centre wrote to Mr Anas, then going under the name of Mr Rebai, as follows:

"This letter confirms that your position on the permanent re-housing list is number 5 for a 2 bedroom property, in North Westminster.

The property is to be ground floor or 1st floor lifted, to be adapted with shower facilities.

We understand your wish to be housed in Bayswater, but as stated in Claire Morgan's letter of 12 July 2001, there is nothing on file to suggest you cannot use public transport, or that you have overriding medical or support needs that make it necessary for you to stay in the Bayswater area."

7. This was followed by the offer letter on 17 October. It did not identify 2 Avon Court, but Mr Anas was told about the flat on, or very close to, that date. The letter warned him of the consequences of the unreasonable refusal of an offer.
8. There is then a gap in the correspondence, but by 2 November 2001 Mr Anas had instructed solicitors who were in their first letter speaking of an application for judicial review. The service manager replied on 9 November rejecting the suggestion that the Assessment and Advice Centre had not taken account of Mr Anas' circumstances.
9. On 30 November 2001 the service manager informed Mr Anas of his removal from the register and of his right to seek a review. The service manager listed documentary material that she had taken into account, including a medical report dated 19 October 2001 from Mr Anas' general practitioner, Dr Jayatillake. This listed numerous conditions for which Mr Anas was receiving medication, as he still is. It referred to Mr Anas as severely disabled.
10. It is not at all in dispute that Mr Anas is disabled. He has the misfortune to suffer from a number of distressing conditions. Some of these make it very uncomfortable for him to travel either by bus or by taxi and he has a strong preference for travel by the underground railway. He is entitled to disability living allowance at the higher rate in respect of mobility and at the lower rate in respect of care. He also has mental troubles, partly attributable to the experiences which led him to come to this country as a refugee. He believes himself to be under surveillance by agents of the Tunisian Government. He believes that he has been physically assaulted by them and that his personal safety is under threat. His name changes seem to be connected with his belief that he is in danger.
11. By 20 December 2001 Mr Anas had instructed new solicitors, Bindman and Partners. They wrote to the Assessment and Advice Centre on that date enclosing a psychiatrist's report dated 10 December 2001 by Dr Ahmed Farah, a consultant psychiatrist. In their letter Bindman and Partners also challenged the local housing authority's decision on suitability under the head of (i) travel arrangements; (ii) carer; and (iii) distance (that is distance from Bayswater where most of Mr Anas' friends live).
12. The psychiatrist's report described Mr Anas as having features of moderate to severe post traumatic distress disorder characterised by severe anxiety, panic attacks and nightmares. After advice on medication and treatment, Dr Farah said:

"I would be most grateful if the Council could reconsider their decision in the light of the above mentioned numerous medical problems and psychological/psychiatric problems this gentleman is suffering from. It would be highly desirable if the Council could consider offering Mr Saria Anas (formerly Mr Safwaan Ibrahim) an appropriate property nearer to where he feels safe, near his friends in the Queensway/Bayswater area. This would, undoubtedly, positively contribute to the stability of his mental health and his rehabilitation."

13. On 22 January 2002 the local housing authority wrote to the general practitioner asking for his medical reports and, in particular, information about his asthma and the reason why he became nauseous when travelling by bus. This letter was signed by a nurse practitioner, Miss Aldgate. The general practitioner replied on 14 February without adding much to what was already known.
14. On 26 February 2002 a new firm of solicitors, Samuel Davis, wrote stressing Mr Anas' reliance on his friends in the Queensway/Bayswater area. The letter stated:

"The friends of Mr Anas have always done the purchasing of essential provisions for him and his family. Mr Anas is prevented from doing this himself through physical disability. He suffers desperately with extreme fear and panic attacks when left alone, thus rendering his wife unable to leave him for any length of time. The importance of this shopping role of Mr Anas' friends cannot be underestimated. It has been very difficult for the help to be extended to the family in the same way given the current distance between Mr Anas and his old circle of friends.

Further, if Mr Anas wife did have to leave him for any length of time, one of their friends would sit with him in order to provide comfort and protection. Whilst living in the Queensway/Bayswater area, if Mr Anas did at any time feel the start of a panic attack or choking sensation whilst out, he could enter any number of premises or houses and be cared for a short time by the familiar people.

It should also be pointed out that the location of Mr Anas' residence will have a huge impact on his mental state. He has been the victim of physical attack three times. Each of these incidents occurred outside the Queensway/Bayswater area. The attacks have left mr Anas with recurrent nightmares. Mr Anas feels safe in the Queensway/Bayswater area, it is where he considers home. He settled there having been displaced from his country of origin, where he has had horrendous experiences.

Our client believes that the attacks outside the area have been the work of the Tunisian government. Mr Anas is convinced that he will be safe of the physical attacks if he lives in an area surrounded by friends and acquaintances and familiar faces. Even if you think this is not true, but a deeply held belief and a facet of the disturbed mental state of Mr Anas, what must be true is the effect of deliberately placing this very troubled and psychologically disturbed individual in an area which he intensely fears will be to further damage his mental health and hinder his rehabilitation."

15. Those were the materials before Mr McGeever, a senior officer who had not previously been concerned with the case, when he conducted his statutory review. His decision letter contains a clear and thorough review of the matter, running to over five pages. It begins with a correct summary of the legal framework under which all applications for housing by a local housing authority are now channelled through the register under Part VI of the Housing Act 1996.
16. The decision letter then addressed the question of suitability, highlighted in Bindman and Partners' letter of 20 December, as explained in Dr Farah's report of 10 December and as amplified by the letter from the new solicitors, Samuel Davis. The decision letter referred to the views of the authority's own medical adviser, which acknowledged that Mr Anas had difficulties, but pointed out that the purpose of the mobility element of disabled living allowance is to assist persons with mobility problems. The decision letter referred to, but then largely discounted, observations about Mr Anas' mobility which had been made by two members of staff at the Advice and Assessment Centre at 261 Harrow Road. The letter continued:

"Be that as it may, if we accept that you are unable to use the bus or walk to the tube, I do not consider that this would make the offer of 2 Avon Court unreasonable as your mobility is going to be restricted wherever you are located. We have very little stock in the immediate vicinity of tube stations and a limited number of units that would meet both this requirement and your medical needs ie ground floor or first floor lifted. You have previously advised Officers and Dr Farah that you wish to be rehoused in the immediate vicinity of Queensway Tube. We have very few properties in this area. The closest ones are in Queensborough Terrace of which several are sold on the right to buy and, as they are converted street properties, any vacancies would be unlikely to meet your medical requirements. No vacancies in these properties have arisen this financial year.

I have reviewed housing statistics over the last few years showing long term lets provided through Westminster's Housing Register. These statistics show that 2 bedroom long term lets are very scarce in the area you seek, and 2 bedroom ground floor lets would be even scarcer. For instance, in this financial year, of the 37 lettings in the City Council's own stock in the Bayswater Estate Office area only two were two bedroomed properties and only one would have met your medical needs (a ground/first floor maisonette). This property was near the Brunel Estate where you had previously refused a property on the grounds that the area was not safe for you.

Moreover, the aim of the additional financial assistance you receive through DLA is to enable you to get around eg by Taxi. These options would have been available to you at 2 Avon Court. The property we offered you, namely a ground floor property, would have met your previous assessed medical needs in terms of your home environment. I have taken these factors into account in my conclusion that the property was suitable for you.

I note that you are in receipt of higher rate DLA due to your restricted mobility and lower rate DLA because you need help in cooking a meal for yourself. Whilst this does not equate to requiring a full time carer, I do not consider that the position of the flat makes it unsuitable in relation to carers. Your friends in Queensway or any other carers eventually employed, could have easily reached the property by either walking or using public transport such as buses."

17. I will not read more but the letter, as a whole, seems to me an open minded, conscientious and thorough discussion of the intractable problem presented by Mr Anas' unusual needs and wishes. However, Mr Anas sought to challenge it by way of judicial review as being unreasonable and, therefore, an unlawful decision.
18. After his application was rejected on paper, Mr Anas renewed his application before Pitchford J. He relied on a typed document, "Grounds for Renewal of Application". In this court he has relied on the grounds of appeal in his appellant's notice and a further typed document "Supplemental Grounds of Appeal". Pitchford J came to the conclusion that the application was hopeless. Mr Anas has challenged that conclusion and has criticised the judge's reasoning in 7 paragraphs of his ground of appeal and five further supplemental grounds. I take these in turn.
19. Paragraphs 1 and 2 suggest that the judge did not take account of the grounds for renewal (which he had not read before the hearing) and that he should have adjourned to consider them. However, the judge's judgment shows that he had a firm grasp of the facts and the issues; the copy of the grounds for renewal with my papers has the judge's own manuscript annotations on it.
20. Paragraph 3 suggests that the judge erred in law as to the interaction of the Housing Acts of 1985 and 1996. But paragraph 11 of his judgment shows, clearly, that he did not err on this point. Rights under the Housing Act 1985 are now channelled through the Housing Register maintained under Part VI of the Housing Act 1996. Paragraphs 4 to 6, to which paragraph 7 adds nothing, appeared to make the error of treating the judge as the decision maker. But the primary decision was that of Mr McGeever, the Operations Director. The applicant had to show an arguable case that Mr McGeever's decision was so flawed as to be unlawful. He did not achieve that.
21. As to the supplemental grounds, grounds 1 and 2 add nothing to what I have said under paragraphs 4 and 7 above. Mr McGeever did not rely heavily on the personal observations made by the two managers. He largely discounted them as reasons for his decision. Ground 3 refers to letters written after the review had been completed. The judge was right to treat them as no part of the decision making process. Ground 4 revisits the relationship of the Housing Acts of 1985 and 1996, but Mr McGeever correctly directed himself about the law on that point, as did the judge. Ground 5 refers to Article 3 of the European Convention on Human Rights, which contains an absolute prohibition on torture or other inhuman or degrading treatment.
22. Mr Anas' complex medical problems, physical and mental, must attract great sympathy, but it is absurd to suggest that the local housing authority's conscientious attitude to his problems amounts to an infringement of Article 3. Westminster City Council Housing Department has huge demands on it and limited resources in respect of housing stock. Accommodation may be suitable, even if it is not ideal, for an applicant who has particularly demanding requirements. The question of unreasonable refusal of accommodation must be judged objectively and not subjectively.
23. I must therefore conclude that the judge was right in his view that the application was hopeless. I dismiss this application.
Order: Permission to appeal refused.