IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE COTRAN)
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE NEUBERGER
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MR I LOVELAND (instructed by TV Edwards Solicitors) appeared on behalf of the Respondent.
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"(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for reference to the case to another local housing authority, they may notify that other authority for their opinion.
"(2) The conditions for referral of the case to another authority are met if-
a) neither the applicant nor any person who might reasonably be expected to (inaudible) reside with him has a local connection with the district of the authority to whom the application was made.
b) the applicant or person who might reasonably be expected to reside with him has a local connection with the district of that other authority
c) neither the applicant or any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.
"(2A) That if the conditions for referral mentioned in subsection 2 are not met if:
a) the applicant or any person who might reasonably be expected to reside with him has suffered violence, other than domestic violence in the district of the other authority and
b) it is probable that the return of that victim will lead to further violence of a similar kind against him.
"(3) For the purposes of subsection 2 and 2a 'violent' means
a) violence from another person; or
b) threats of violence from another person which are likely to be carried out and violence is domestic violence if it is from a person who is associated with the victim."
[I omit subsections (4), (4A) and (4B)].
"(5) The question whether conditions for referral of a case are satisfied should be decided by agreement between the notifying authority and the notified authority, or in default of an agreement, in accordance with such arrangements as the Secretary of State may direct by order."
[I omit subsections (6) and (7).]
"1. Where a local housing authority notify an applicant that they intend to notify or have notified another local authority of their opinion and the conditions are met for referral to that other authority …
they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral of his case are met.
"2. Where it has been decided whether the conditions for referral are met, the notifying authority shall notify the applicant of the decision and inform him of the reasons for it. The notice shall inform the applicant of his right to request a review of the decision and of the time within which such a request may be made."
"In her letter 13 April 2005, Caroline Edge of Swansea Council Asylum Team states that you suffered 'harassment' during your time in Swansea. In December 2003 you told Miss Edge that you had been experiencing problems with young people on the council estate where you lived. You told Miss Edge that these 'youths' made trouble late at night near your house and at a nearby bus-stop. You also told Miss Edge that you were often shouted at when you waited for a bus. Further, a man on a bus would not let you sit next to him and used strong racist language. On 23 March 2004 you reported problems with youths shouting and flicking their middle fingers. You told Miss Edge that someone at a bus-stop asked you if you were Al-Qaeda.
"There were also two more serious incidents which occurred in January and June 2004. In January 2004 you were pushed from behind outside Town Hill community centre. You fell and hit your face … it is reported that you passed out and when you came round the perpetrator had gone. You were taken to hospital … and the incident was not reported to the police. Miss Edge confirmed to Miss Yates that no racist language was noted in her report. Initially you were unsure whether there was a racist element to the attack, and now you believe there was. In June 2004 you were assaulted in the city centre and some money was stolen from you. The incident was reported to the police but not pursued. [I omit words]
"[You told Miss Yates] that you do not believe the incidents were connected in any way or that a particular personal group was targeting you. However, you do believe you were targeted because you were an asylum seeker. When you were interviewed by Miss Yates on 3 May 2005, you told her about similar incidents. You said buses would not stop for your wife and she had been left standing in the cold and rain with your children. You told Miss Yates that people 'hassled' you if you went for a drink and that you felt people were looking at you in a certain way."
"I think you have been unfortunate regarding the two more serious incidents you have experienced. These were random incidents, and you accept they were not part of a course of harassment perpetrated against you and your family. You believe that these attacks were motivated by the fact that you are an asylum seeker. You base this on the fact that you have experienced verbal abuse. Although I understand why you might believe this, I am of opinion that you are mistaken.
"Firstly, Miss Edge of Swansea Council told Miss Yates that there was a lot of verbal harassment of asylum seekers but very little physical. Secondly, both the incidents you have experienced can be better explained without reference to racial harassment or abuse. The incident in the centre of Swansea was a theft, or mugging, motivated by financial gain, and the incident on the Townhill estate was of the type that is unfortunately becoming all too common these days. It was a random, motiveless attack. Being unknown to the perpetrators is reason enough for such attacks. While I am sympathetic to your situation, I do not believe there is any part of the UK that is free of this type of crime. It is not possible for any local authority to guarantee a crime-free existence to its residents.
"It seems to me that the verbal abuse suffered by you and your wife may have led you to see a pattern when none existed. I have considered the verbal abuse suffered by you and your wife [I omit words]. Although this incident may have been offensive or upsetting, it does not appear to me that either you or your wife were threatened with violence. It seems clear that neither you nor any member of your family were ever assaulted as consequence of a threat made to you. I am therefore satisfied that there is no reason to believe that you or your family [the word "you" is then wrongly included], have been threatened with violence, and that it is more likely than not that violence will result if you return to Swansea [again, it seems to me that a "not" is missing before the word "result"]. Further, as stated above, it is accepted that you have experienced two incidents of actual violence in Swansea. However, as both incidents were random in nature and more likely not to have been motivated by reasons other than hate/race, I am satisfied that it is more likely than not that you will not experience similar incidents if you return to Swansea. I have to conclude that it is not probable that you will be a victim of actual violence should you return to Swansea. I am of the decision by the Royal Borough of Kensington and Chelsea to refer your case is correct."
I shall call those the concluding paragraphs, but I should add that the review letter went on to consider very properly the question of whether, nonetheless, RBKC should exercise its discretion not to refer and came to the conclusion that it should not.
"26. … it is elementary that it is not necessary to have violence only with a battering. I do not think either that the reviewer has said that. What he did say is that he accepted there were two serious incidents of actual violence which clearly came within the definition of violence from another person [under section 198(2)(a)]. The reviewer did not seem to consider the definition [i.e. the statutory definition], threats of violence from another person which are likely to be carried out, and he did not consider the harassment itself insofar as it did not involve violence affecting the probability or likelihood of it occurring again if returned to that area.
"27. I think, looked at as a whole, he (that is, the reviewer) did not lay sufficient stress on the perceptions of the victims in this case, that is to say Mr Danesh and his wife, on the probability of this happening again of the same type if they were to return to Swansea. After all, they did not spend a very long time in Swansea, they lived in a community there and, in that short space of time, they had two incidents involving violence, which they both perceived to be racially motivated. Both he and she suffered other incidences of threats to violence. They certainly feared or understood there to be at least a possibility of them being carried out. I am of the view that, looked at as a whole, the finding that it is not for the housing authority to guarantee that these would not recur again is irrational in the circumstances of this case. I recognise, of course, that courts have said time and again that appeal from review decisions of local authorities are to be treated as in judicial review proceedings, i.e., based on the grounds of irrationality, illegality or procedural unfairness. Although there was no procedural unfairness here, there were in my judgment two blatant errors of law; one, in the approach to the definition of violence, and one in the probability of more violence taking place again on return to Swansea, given the reviewer accepted the facts as related by the appellant and his wife."
"An assault can be committed without touching a person. One always thinks of assault as the giving of a blow to somebody, but that is not necessary. An assault may be committed by a threat or a hostile act committed towards a person."
See also, more recently, Lord Steyn in R v Ireland  AC 147 162(A).
"In some cases severe harassment may fall short of actual violence or threats of violence to be carried out. Housing authorities should consider carefully whether applicants who have fled their homes because of non-violent forms of harassment, for example verbal or psychological abuse, or damage to property, are vulnerable as a result."
"only his perception or belief, and that it was not for Mr MacDougal to give a judgment or opinion on this matter".
Order: Appeal allowed.