COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HASTINGS COUNTY COURT
Mr Recorder Digney QC
AND FROM THE CENTRAL LONDON COUNTY COURT
Judge Levy QC
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LADY JUSTICE ARDEN
LORD JUSTICE LONGMORE
| JAMES CRAMP
- and –
HASTINGS BOROUGH COUNCIL
- and –
LONDON BOROUGH OF CAMDEN
David Watkinson (instructed by Holden & Co) for Mr Cramp
Kelvin Rutledge (instructed by Legal Services, Camden LBC) for Camden
Zia Nabi (instructed by Lewis Nedas & Co) for Mr Phillips
Hearing date: 4th July 2005
Crown Copyright ©
|Part 1 Introduction||1|
|Part 2 The statutory scheme for homelessness cases||3|
|Part 3 Mr Cramp's case||16|
|Part 4 Mr Phillips's case||35|
|Part 5 Conclusions||57|
|Part 6 Should permission to make a second appeal be granted to Camden, notwithstanding the Uphill judgment?||60|
|Part 7 Procedure on a s 204 appeal||70|
Lord Justice Brooke:
Part 1 Introduction
Part 2 The statutory scheme for homelessness cases
"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –
(a) whether he is eligible for assistance, and
(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.
(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."
"(1)(c) a person who is vulnerable as a result of ... mental illness or handicap or physical disability or other special reason."
"The obligation to make inquiries, and satisfy themselves whether a duty is owed, rests with the housing authority and it is not for applicants to 'prove their case'. The nature and scope of inquiries will vary in individual cases, but they should be carried out as quickly as possible. Inquiries must be sufficiently thorough to establish the facts, and applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, intentional homelessness."
"Where applicants may have care, health or other support needs, the housing authority will need to liaise with the social services and health authorities, as appropriate, as part of their inquiries. An assessment by the relevant specialist authority may be crucial to establish whether the applicant has a priority need for accommodation and to determine what non-housing support needs may need to be met."
"In line with best value requirements, housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy themselves what duty, if any, is owed under Part 7. Housing authorities should aim to carry out an initial interview and preliminary assessment on the day the application is received or, where the application is received late in the day or after hours, the next working day. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s188. Wherever possible housing authorities should aim to complete their inquiries, and notify the applicant, within 33 working days of accepting the duty to make inquiries under s184."
"The burden lies upon the local authority to make appropriate enquiries ... in a caring and sympathetic way ... These enquiries should be pursued rigorously and fairly albeit the authority are not under a duty to conduct detailed CID-type enquiries."
"The duty to make necessary inquiries is not a duty to make all inquiries in fact necessary before the truth can be ascertained. A council which makes numerous inquiries can in my judgment only be attacked for failing to making one more if it failed to make an inquiry which no reasonable council could have failed to regard as necessary."
"(1) The duty to make inquiries is to make such inquiries as are necessary to satisfy the authority ... It follows therefore that as it is the authority which have to be satisfied the scope and scale of the inquiries is, primarily at least, a matter for them. But the introduction of the word 'necessary' indicates that there is a standard which those inquiries must observe. In other words, the inquiries must be those which are 'necessary' to enable the authority to make a decision.
(2) If the court is to intervene by way of judicial review, it must be on the basis, as I see it, that the inquiries have not reached the required standard in the circumstances of the case ...
(3) In deciding how a reasonable authority would have acted and what inquiries they would have made in the circumstances, the court must have regard to the speech of Lord Brightman in R v Hillingdon LBC ex parte Puhlhofer  AC 484 where he said at p.518:
'... it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case ... Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely' ...".
Part 3 Mr Cramp's case
"I have seen the patient twice. From the history and the psychiatric examination it appears that there may be symptoms which indicate an anxiety disorder or a mood disorder, anxiety, anger irritability. A definite diagnosis of a mental disorder can only be made once the detoxification from Valium has been completed. At this moment we can state that a mental disorder cannot be excluded definitely.
This letter concerns only information from a medical point of view and is intended to be used as one part of the assessment, of which other factors and sources of information are to be considered as well."
The solicitors did not suggest that any further psychiatric evidence was needed for the purposes of the review.
"Mr Cramp advises me that he has taken anti-depressants off and on since he was younger – possibly over a period of more than 15 years. He told me he has taken these in the past because he was bullied at work and generally 'picked on' which he finds frustrating and stressful. He does not feel he has a mental health problem. He told me that he has had 4 bereavements in the family that have left him very upset and that generally he agrees with the psychiatrist who told him he has a 'lot on his plate'; Mr Cramp feels this is the underlying problem.
Mr Cramp told me he has injured himself during outbursts of anger, for example damaging doors. Other than this the only self harm he says he has ever done to himself is through his drug use.
He told me he has thought about suicide but doesn't want to go through with this. It is feelings of frustration about the way other people have treated him, not taking him seriously, that have led him to have these thoughts.
In summary: Mr Cramp may have an anxiety or mood disorder but this is as yet undiagnosed. He has no history of self harm or suicide attempts. He is not expressing any serious suicidal ideation. His history indicates that any mental health problems he has have not prevented him working, studying, and finding and keeping accommodation. I am satisfied that he is no less able to fend for himself than an ordinary homeless person so that injury or detriment will result, because of his mental health."
"It must appear that [the applicant's] inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable."
Ms Stanley concluded, finally, that Mr Cramp was not in priority need for any other statutory or special reason.
"The Council are under a duty to carry out inquiries which enable them to answer the question and when I look at the papers in this case I can ask the question myself: Could I conclude, on the basis of this, whether the Appellant has priority needs? I simply could not answer the question and the officer who answered the question is in no better position than I am. She has no psychiatric training of her own. As I say, this letter is not sufficient to base the decision on as it is not sufficient to base the decision, but it, as it were, gives notice to the fact the psychiatric problems may well mean that the Appellant has priority needs, further inquiries should have been made, and it is not simply a question of some people would have made further inquiries, others would not and that the decision is within a range of possible reactions. I am quite satisfied, applying the reasoning in Pereira, that the decision not to make further inquiries was Wednesbury unreasonable for the simple reason that it is not possible to answer the question, and the letter, although it does not answer the question, certainly would give rise in the mind of anyone dealing with the problem that there is a real risk that the psychiatric problems do put the [Appellant] into the category of those as set out in the Pereira case."
He therefore quashed Ms Stanley's decision and ordered the council to pay Mr Cramp's costs.
"This is a second appeal. It is not an exceptional case. There is no important point of principle or practice raised by the proposed appeal nor is there any other compelling reason under Part 52.13 (2) for granting permission. Uphill applies."
"23. … What follows (which is not intended to be exhaustive) has been approved by the Master of the Rolls and the Vice-President of the Court of Appeal (Civil Division).
24(1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.
(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."
"The decision, although itself made on appeal, was made from an administrative decision. There is, in my view, a very high prospect that this court will be persuaded that the Recorder failed to give proper weight to the fact that Parliament has thought it right to entrust to the authority not only the decision as to what duty is owed to the applicant but also the decision what enquiries need to be made in order to reach that decision."
"The principles stated in Uphill are expressly said not to be exhaustive. In this case I am struck by two particular features. First, that the judge seems to have substituted his own view as to what was the limit of necessary enquiries for the authority to make, rather than considering whether the view taken by the authority was, as expressed in the review letter, a reasonable one. On that it seems to me there is a good prospect of success. Secondly, I am struck by the evidence of the housing officer, Mr Opreshko, that the extent of enquiries needed by the authority in a case such as this is a matter of great concern in its role as housing authority, particularly as future cases are likely to be heard by the same court. Together these points are compelling reasons sufficient to justify a second appeal."
Part 4 Mr Phillips's case
i) He was a person under the age of 21 who was in care (or should have been in care) between the ages of 16 and 18 but had left (or lost) that care; and/or
ii) He was vulnerable for some other special reason. Although his medical condition, prison sentence, or care needs when he was younger might not on their own mean he was in priority need (which they denied), collectively he was now less able to cope than a "normal" homeless person.
The first of these grounds appears to be a homespun version of one of the categories of "priority need" that appear in the 2002 Order (for which see para 6 above).
(c) is vulnerable as a result of ... handicap, physical disability or other special reason;
(f) is under the age of 21 who was in care between the ages of 16 and 18, but who has left care and is not a "relevant child";
(i) is vulnerable as a result of having a custodial sentence.
"The council failed to make adequate enquiries of (a) the appellant's probation officer; (b) the appellant's GP."
"It seems to me that admirable though the decision letter is, it would have been helpful if the reviewing officer had made enquiries of the appellant's probation officer. The Appellant had been in contact with his probation service, almost if not up to the date of the decision. Given the uncertain and unhappy background of the Appellant there might well have been additional information regarding the Appellant that the probation officer could have given. As to the Appellant's GP, it seems to me that the report of the Appellant's recently acquired GP was of limited use, in that it is not clear whether he had all the medical records, or even most of the medical records of the Appellant. Further enquiries not having been made on these points, I am not satisfied that the Reviewing Officer did consider all social and medical factors relevant to the Appellant's case."
Part 5 Conclusions
Part 6 Should permission to make a second appeal be granted to Camden, not-withstanding the Uphill judgment?
Part 7 Procedure on a s 204 appeal
"Unless it orders otherwise, the [county court as the first] appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the [senior housing officer on the review]."
In other words, judges in the county court need to be astute to ensure that evidential material over and above the contents of the housing file and the reviewing officer's decision is limited to that which is necessary to illuminate the points of law that are to be relied on in the appeal, or the issue of what, if any, relief ought to be granted. An undisciplined approach to the admission of new evidence may lead to the danger that the reviewing officer is found guilty of an error of law for not taking into account evidence that was never before her, notwithstanding the applicant's opportunity to make representations about the original decision.
Lady Justice Arden:
Lord Justice Longmore: