England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
MS RECORDER WRIGHT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th October 2010

Lord Justice Sullivan:

Introduction

1. This is an appeal against the order dated 9 October 2009 of Ms Recorder Wright, allowing the respondent's appeal under Section 204 of the Housing Act 1996 ("the Act") against the appellant council's review decision dated 5 March 2009, made under Section 202 of the Act.

Factual background

2. In her application for assistance under Part 6 of the Act, the respondent said that "she would not like to live in Clapham Junction and Battersea because she had been attacked there in the past". The council accepted that it was under a duty to house her in a letter dated 20 November 2008. The respondent was told that the council would make one offer only of permanent accommodation and that she would be expected to accept a property in all areas of the borough:

"…however note has been made of your desire not to live in Clapham Junction/Battersea area"

3. The letter concluded:

"If you would like to discuss any aspect of your application, particularly with regard to where you cannot live, and why, i.e. estates or areas within areas you cannot live, do not hesitate to contact me. It will not be acceptable for you to bring to our attention any issues you may have once you have received an offer."

4. Having heard nothing more from the respondent the council offered her accommodation at 13 Norley Vale ("the property"). Norley Vale is in Roehampton at the extreme south-western edge of the borough where it borders on Richmond. The respondent did not view the property and she was warned that failure to accept the offer would lead to the cancellation of her housing application.
5. In a letter dated 31 Decedmber 2008 the respondent explained why the offer had not been acceptable to her. In addition to Clapham Junction and Battersea, she could not live in Roehampton, Wandsworth and Southfields "as a gang of people that live in those areas don't like me".
6. She explained that she had not mentioned Roehampton previously because it had slipped her mind that it was in the borough. She said that she would like to live in Balham, Tooting or Streatham. In reply the council said that it was felt that the property was suitable but that if the appellant felt that it was unsuitable she could request a review.
7. In a letter dated 6 January 2009 Mr Entwisle, the deputy service leader at Centrepoint, which was providing temporary supported housing for the respondent, wrote to the council saying:

"Tanya has rejected the property she was offered because it would be unsafe for her to live in the area. Tanya was assaulted by a female gang member at the beginning of 2008. Tanya's friend was also seriously assaulted by the same female gang member at the same time. These gang members are still after Tanya. The gang members with whom she has trouble all live and hang out in Roehampton, Wandsworth and Battersea.

Tanya did not specify on her original application that she could not live in Roehampton; she submitted a letter to the housing department [...] with a fuller list of the places she can and cannot live. Tanya understands that she should have put all of this information on the original form. She is an extremely vulnerable young woman who has suffered a history of abuse and neglect and was forced from her family home at the age of 17. These traumatic experiences have impacted negatively on her mental health, and Tanya has suffered from clinical depression as a result of them.

It is impossible for Tanya to live in the flat she has been offered. I fully understand the position taken by Wandsworth Housing towards refusals of properties, but I believe this is an exceptional case."

8. In a letter dated 15 January 2009 the council acknowledged the respondent's application for a review under Section 202 of the Act and invited her to submit any additional information that she wished to be taken into account.
9. Leona Crowe, a senior reviews officer, telephoned the respondent on 22 January 2009 to obtain more details about the assault that had been referred to in Mr Entwisle's letter and about the respondent's fears more generally. The details elicited in that telephone conversation were incorporated into a "minded to uphold" letter dated 26 January 2009 which was sent by Ms Crowe to the respondent. That letter invited the respondent to submit further information if she wished to do so. In response, the respondent provided some further details and reiterated her fears in a letter dated 19 February 2009.
10. The review decision letter written by Ms Crowe is dated 5 March 2009. It correctly identifies the sole ground of which the respondent had claimed that the property was unsuitable:

"You suggest that you are at risk of violence or threatened violence/harassment in Norley Vale..."

11. The letter then summarises the respondent's account of the attack upon her in 2008 by Ms Scott and the threats that she had received. The letter contains a very detailed explanation as to why the council did not consider that the respondent would be at risk in the Norley Vale area. That explanation included the following passages:

"Whilst we have no information to show where Ms Scott resides in the Roehampton area and you have not been able to confirm her exact address, information available to this office confirms that Ms Scott (who is also an applicant known to this office) does not reside in the Roehampton area. It is well documented that Roehampton is a very large area within the borough and it is not inconceivable that you could reside in one area within Roehampton and not come into contact with Ms Scott or any member of the SUK gang. There is no information before me to suggest that you have previously experienced violence in the Norley Vale area (where the offer is being made) or indeed been threatened with such in the vicinity of the said area. As a matter of fact Norley Vale is more than 30 minutes travel by public transport from the Ashburton Estate where you allege Ms Scott attacked you in January/February 2008. There is no information to satisfy me that there is a probable risk of violence, which may continue unabated if you were to reside in the property offered.

There is no evidence to suggest that you were either harassed or threatened with violence in the Norley Vale area. There is no evidence that you have been subjected (now or in the past) or that you are at risk of probable harm from the residents of the Norley Vale area. Hence I am satisfied that living in this property would not lead to a risk of harm or violence. I note that the alleged incident mentioned happened in Putney and not Roehampton.

Whilst I am sympathetic to the possibility of you coming into some contact with the alleged perpetrators, I can find no information to suggest that such is probable at the location of the offer [...]

I am aware that a gang called SUK exists but there is no information to satisfy me that they pose a risk of violence to you if you were to reside in Norley Vale. There is no information to suggest that any member of this gang resides in the Norley Vale area.

[...] There is certainly no information to suggest that Ms Scott resides in close proximity to Norley Vale and I can see no reason why she would threaten you with violence if you were to reside in an area where she does not reside."

12. Thus the essential point that was conveyed by the council was not that there had been no attack or that there had been no threats, or that a gang known as SUK did not exist, but that Roehampton was a very large area in the Borough and there was no reason why the respondent could not live in the Norley Vale part of Roehampton. The attack had not occurred there; the respondent had never been threatened there; there was no information to suggest that any member of the SUK gang lived in that part of Roehampton or that Ms Scott lived in close proximity. Indeed, on the information available to the council Ms Scott did not even live in Roehampton.
13. The respondent appealed against that decision. In a skeleton argument submitted on her behalf it was submitted that:
    

"The nub of the matter is that the appellant sought not to be accommodated in the 'Stick em up Kids' patch as they are a current and ongoing danger to her...

The claimant and her witnesses say the appellant is in danger from the Stick em up Kids, yet the respondent has offered her accommodation in Norley Vale within the patch of the Stick em up Kids. The respondent goes on to aver that Roehampton is within the patch of the Stick em up Kids, but Norley Vale is not in Roehampton. I refer to a map of Roehampton attached to the witness statement of the appellant which shows Norley Vale to be within Roehampton [...]

Here the facts averred by the respondent are demonstrably and plainly wrong. The respondent accepts the appellant is in danger from the Stick em up Kids; then offers her accommodation within its patch and then denies it is in its patch contrary to the geography of Roehampton. Accordingly the decision of the respondent does give rise to administrative law grounds of adversity, irrationality and Wednesbury unreasonableness."

The Recorder's Judgment

14. In a judgment dated 9 October 2009 the Recorder correctly set out the role of the court when considering an appeal under Section 204 of the Act:

"...In the case of Williams v London Borough of Wandsworth [2006] EWCA Civ Division 535, Chadwick LJ set out the process for the review of a decision taken by a local authority pursuant to section 202 of the Housing Act and went on to reiterate that it was local authority who assumed the fact-finding role. He said:

'Where what is alleged is a misconstruction of ascertained facts, 'obvious perversity' is required before the court can properly interfere with the authority's findings of fact.'

The issue in this case is whether the local authority's findings of fact set out in the review decision letter dated March 2009 that it was not probable the appellant would be at risk of violence or threats of violence was perverse."

15. It was not for the Recorder to substitute her view as to the merits of the respondent's application for review. She had to decide whether the council's review decision was Wednesbury unreasonable. The Recorder concluded that the council's decision had been perverse and that it had misconstrued the facts at the review stage. She reached those conclusions for the reasons set out in paragraphs 9 to 13 of the judgment:

"9. I find that the local authority did know clearly that the appellant was maintaining that the appellant was indicating she would be in fear of the threat and risk of violence in Roehampton by 6 January 2009 as this was set out in a letter from James Entwisle dated 6 January 2009. The local authority should have taken notice of what was Mr Entwisle said in his letter, particularly that this appellant was an extremely vulnerable young woman; she had been forced from her home at the age of 17 and she had suffered from clinical depression. Mr Entwisle stated that it would be impossible for the appellant to live in the flat she was offered. He said that this was an exceptional case.

10. The threat of violence and violence from gang members is real and serious. Although the reviewing officer set out the incidents relied on by the appellant, it is clear she was somewhat concerned that there was no supporting evidence other than the appellant's own account. There were supporting statements from the appellant's friends as indicated, although these were not available at the date of review. They confirm that the appellant has indeed been attacked in the past and that she has a real and continuing fear of attack and violence in the future.

11. Although Ms Scott does not live in Roehampton and the attack on the appellant by her happened in Putney some time ago, it is clear from the appellant's response that she did not know Roehampton is part of the London Borough of Wandsworth. She has made it very clear that members of the SUK gang have threatened her earlier this year and that a number of them live in Roehampton. Although the appellant was unable to say where indeed exactly they lived within Roehampton, she could reasonably be expected to know that they did indeed live there and she could can give a first-hand account of what happened to her and the fear she still had of being attacked in the future.

12. In those circumstances, and exceptionally, I find it was perverse for the reviewing officer to conclude, on the basis of the evidence presented to the local authority, that the appellant was not at risk at continuing risk of violence. I also find that it was perverse for the local authority to conclude if that were the case, inevitably there would have been suggestions to the local authority to consider the appellant's safety in a specific area as set out in the reviewing officer's decision letter. The reviewing officer makes no mention of the letter from Mr Entwisle which specifically sets out the continuing risk to the appellant; particularly within the Roehampton area; that she was an extremely vulnerable young woman and that this was an exceptional case.

13. In those circumstances, I find I am entitled to conclude that the local authority did indeed misconstrue the facts at the review stage and that the conclusions reached were perverse given the considerable evidence before it that the appellant was in continuing fear from gang members and those associated with them in the areas set out in her statement [...], namely Roehampton, Putney, near Wandsworth Town Hall, Clapham Junction and Battersea."

Discussion and Conclusions

16. Although the Recorder set out the correct legal test, she did not in my judgment correctly apply it to the facts of this review decision.
17. Firstly, the Recorder's reasons for concluding that the council's review decision was perverse on the basis of the evidence presented to the council and that it had misconstrued the facts at the review stage do not at any stage engage with the principal point that was being made in the review decision, namely that, whatever the position might be in Roehampton generally, Roehampton was "a very large area within the borough" and the respondent would not be at risk in the Norley Vale area within Roehampton. The respondent had never been harassed or threatened in Norley Vale; the attack in 2008 took place in Putney, not Roehampton; Ms Scott did not live in the Roehampton area, and there was no evidence that she resided in close proximity to Norley Vale or that any of the SUK gang lived in the Norley Vale area.
18. Secondly, none of the reasons given by the Recorder in paragraphs 9 and 10 of the judgment justified her conclusion that the council's decision was perverse. Taking the paragraphs in order, there was no need for the review letter to refer to Mr Entwisle's letter dated 6 January 2009 (paragraph 9 of the judgment). Mr Entwisle had merely set out in general terms the respondent's concerns and had made the point that she was a vulnerable young woman. The council had investigated the respondent's concerns and obtained further particulars of them (see the telephone conversation and the respondent's letter dated 19 February 2009 in response to the minded to uphold letter). There is nothing to suggest that the council was not aware of the respondent's vulnerability; she had explained her circumstances and the council had accepted that she was in priority need for accommodation precisely because she was a homeless young person. In effect, the Recorder's proposition that "the local authority should have taken notice of what Mr Entwisle said in his letter" is no more than an expression of her view that the council should have given greater weight to the matters raised by Mr Entwisle in his letter.
19. The supporting statements from the appellant's friends (paragraph 10 of the judgment) a) were not available at the date of the review and could not therefore have justified a finding of perversity "on the basis of the evidence presented to the local authority"; and b) in any event did not engage with the point that was being made by the council in the review area, namely that the respondent would not be at risk in the Norley Vale area within Roehampton because, amongst other matters, Roehampton was "a very large area" in the borough.
20. Turning to paragraph 11 of the judgment, the appellant's fears did not engage with the central point that was being made by the council in the review letter. Neither Ms Scott nor any members of the SUK gang lived, so far as the council was aware, in the Norley Vale area.
21. There was, in my judgment, no proper basis for the Recorder's conclusion that the council misconstrued the facts at the review stage (see paragraph 13 of the judgment). The council was well aware of the respondent's fear of violence from gang members in Roehampton and other parts of the borough, but did not consider that those fears were justified if she accepted accommodation in the Norley Vale area of Roehampton. That conclusion was a conclusion which was reasonably open to the review officer.
22. Although the respondent has chosen not to appear before us today, a skeleton argument been submitted on her behalf. In that skeleton argument the respondent accepts that it is difficult for her to establish that the council's decision was perverse, but it is contended that the recent decision of the European Convention on Human Rights on 21 September 2010 in K v The United Kingdom application number 37341/06 is of assistance to her. The decision in K is not, in my judgment, of any assistance to the respondent for two principal reasons. Firstly, the subject matter is very different indeed. K was concerned with possession proceedings. Article 8 was therefore engaged because the applicants in that case were being dispossessed from their homes. Article 8 is not engaged in the present case because the flat in Norley Vale was not the respondent's home; it was not the respondent's home because she had declined the council's offer.
23. Secondly, and in any event, the procedures in issue are very different. In K the council had an unqualified right to seek possession and the proceedings did not at that time provide any opportunity for a challenge to the merits of the council's decision to seek possession by reference to the applicant's personal circumstances. By contrast, in the present case there was a review under Section 202 which did take account of the respondent's personal circumstances; moreover, there was a right of appeal under Section 204 on judicial review grounds, and that right was exercisable as a matter of course and not simply in an exceptional case.
24. It follows that, in my judgment, this appeal must be allowed, but I would make the following these observations. This is a sad case. The review letter notes that the respondent is in temporary accommodation provided by Centrepoint and goes on to say "possession proceedings will commence on your current accommodation in the very near future. I am therefore advising you to start making alternative arrangements for accommodation immediately". When considering whether or not to take those proceedings, and indeed what further action to take if those proceedings are taken, the council might wish to bear these matters in mind. It is clear that the respondent's fears are entirely genuine, even though the council was entitled to conclude that they were not well founded. She declined the offer of the Norley Vale flat without the benefit of any legal advice. On the material before the court she is a young woman who, in her own words, is doing her best to "fight back" after a very difficult start in life. She clearly still needs help. The appeal to the Recorder was not conducted on the basis that, although the appellant's fears were false fears viewed objectively, viewed subjectively they were very real to her because of her mental state (although her vulnerable state was mentioned in correspondence both by Centrepoint and her). This aspect of the case was not supported by any medical evidence and was not pursued on appeal to the Recorder. It is perhaps unfortunate that it was not explored further. Maintaining "the one offer only" policy is undoubtedly an important objective for the council, but one cannot help but feel that an offer of alternative accommodation in Balham, Tooting, Streatham, might well have been somewhat less expensive than the cost of pursuing this appeal.
25. I would simply express the hope that in deciding what action to take, having succeeded in establishing that its decision was not perverse, the council considers what assistance it might offer to the respondent, perhaps using its social services powers to give her the assistance that she plainly still needs.
26. Having said that, for my part I would allow this appeal.

Lord Justice Etherton:

27. I agree that this appeal should be allowed for the reasons given by Sullivan LJ. I am, however, troubled by one aspect of this case.
28. In support of the respondent's objections to the accommodation that she was offered by the appellant, James Entwisle, deputy service leader at Centrepoint, where the respondent was then and is currently being accommodated, wrote as follows in a letter dated 6 January 2009:

"She is an extremely vulnerable young woman who has suffered a history of abuse and neglect, and was forced from her family home at the age of 17. These traumatic experiences have impacted negatively on her mental health, and Tanya has suffered from clinical depression as a result of them. It is impossible for Tanya to live in the flat she has been offered."

29. In a lengthy letter from the respondent herself to the appellant of 19 February 2009, she said among many other things the following:

"Due to stress I am now starting to feel my health is suffering because of the position the council is forcing me into, my eczema is starting to flare up and I am now suffering from cold sores for the first time. Following from my cold sores I now have a throat infection. The stress of knowing the only option I have to prevent myself from becoming intentionally homeless is moving to Roehampton and putting my life at risk has caused me also to develop hives, constant headaches and nausea. I also feel my depression is coming back as I feel there is no way out, it's either to put myself in a dangerous situation or become intentionally homeless…."

"Since a child I have suffered from severe eczema, which lead to bullying and very low self esteem. What is happening now with the lack of understanding, brings back issues of bullying and low self esteem…."

"As I am a vulnerable person the council should be aware of my sense of false fear or otherwise."

30. She then refers to various bullying episodes at school and other incidents from her background which show very keenly the difficult start she had in life.
31. The issue of the respondent's mental vulnerability and mental health was not explored further. She did not submit any medical evidence in support of the genuineness of her fears, even if false, and that in consequence of those she simply could not occupy the accommodation that was offered. The matter was not dealt with at all in the review officer's decision, nor was it raised on the respondent's behalf on the appeal under section 204. In her judgment the Recorder did say the following at paragraph 9 of her judgment:

"9. I find that the local authority did know clearly that the appellant was maintaining that the appellant was indicating she would be in fear of the threat and risk of violence in Roehampton by 6 January 2009 as this was set out in a letter from James Entwisle dated 6 January 2009. The local authority should have taken notice of what was Mr Entwisle said in his letter, particularly that this appellant was an extremely vulnerable young woman; she had been forced from her home at the age of 17 and she had suffered from clinical depression. Mr Entwisle stated that it would be impossible for the appellant to live in the flat she was offered. He said that this was an exceptional case."

32. The Recorder, however, unsurprisingly, in view of the way the matter was put on the respondent's behalf both in the skeleton argument in support of her case in the section 204 appeal and in oral submissions by counsel on her behalf, did not elaborate on those matters raised by Mr Entwisle. Instead, she addressed the reality of the violence or threat of violence from gang members and held that it was perverse for the reviewing officer to conclude, on the basis of the evidence presented to the appellant, that the appellant was not at continuing risk of violence.
33. Again on this appeal, although the respondent has issued a Respondent's Notice, the question of the respondent's mental health and the impact of her genuine fears on her ability to take up the accommodation was not a matter that has been raised in support of the Recorder's decision.
34. For those reasons, it is not a matter that can be taken into account by this court and, for the reasons by Sullivan LJ, the appeal should succeed. Nevertheless, it is clear as a general rule that, if fears such as those experienced by the respondent in the present case are genuinely held due to a mental illness or other mental vulnerability, that condition being supported by appropriate medical evidence, it is a matter which a local authority should and indeed must take into account in the usual way under section 193 of the Housing Act 1996, subsection (7F) of which provides that the accommodation being supplied must be both suitable and reasonable for the particular applicant for accommodation to accept. In such circumstances, the applicant's mental condition is, of course, not a trump card, but it is a factor which must be taken into account by the local authority and the review officer in determining whether or not the obligations of the local authority in a homelessness case are satisfied by the offer of accommodation. Each case inevitably turns on its own particular facts, its own particular medical evidence, and the particular strains and stresses within the particular authority of managing its housing stock in an appropriate manner.
35. In the present case, it is to be noted that the objection to the accommodation was not, as is usually the case, concerned with the facilities within or the configuration of the accommodation; it was to do merely with its location. One would have expected in those circumstances that it might have been possible for the appellant, bearing in mind, of course, its obligation to deal in a proper manner with the valuable and limited resource of housing stock, to take into account the respondent's genuine fears, if there had been proper medical evidence to support them, in deciding whether or not this particular accommodation was indeed both suitable and to be accepted.
36. However, for the reasons that I have given and that have been given by Sullivan LJ, those particular considerations cannot affect the disposal of this appeal, which must be allowed.

Lord Justice Mummery:

37. I agree with both judgments, and will add just a few short words to explain how this appeal came to be argued in the absence of the respondent.
38. The position is that permission to appeal was granted by Pill LJ on the papers on 11 March 2010. The appeal was listed for 5 and 6 July, but Wilson LJ agreed to adjourn the appeal at the respondent's request. She was seeking extra time because she had only just obtained legal representation. Wilson LJ said at the time that it seemed "almost inconceivable to me that the court would grant any further adjournment". What then happened was that the respondent's solicitor and counsel came off the record and she had not secured any other legal representation. Next, on 1 October, the respondent filed an application for permission to serve a respondent's notice out of time. Coupled with that there was an application that the hearing of the appeal listed for today should be adjourned until a later date because of recent developments in case law that now provided her, she contended, with a strong argument to defend the appeal. The developments in case law referred to was the case of K & Others v The United Kingdom which has been cited by Sullivan LJ in his judgment and which was published on 21 September 2010.
39. The matter was then put before me on 5 October when I declined to adjourn the hearing fixed for today, and I directed that the application for permission to file the respondent's notice out of time should be listed with the hearing of the appeal today.
40. I will deal in a moment with the respondent's notice. A letter arrived in the Civil Appeals Office and copied to the council from a firm of solicitors called Blacklaws, saying they had been consulted by the respondent; they said that she had made an application to adjourn, which I have just referred to, and then:

"Having discussed the case with us, Ms Russell-Watson informs us she does not wish to pursue her application to adjourn the hearing or make any further representations in this matter."

There was a request that the letter be put before the court at the hearing. There are observations about costs, which is not relevant to mention at the moment.

41. Just before the hearing this morning there was a telephone conversation between the respondent and a court official in which she made it clear that she would not be attending and would not be represented. It was in those circumstances that the court heard submissions from Mr Lintott about the respondent's notice. He took the point that the K decision was not going to assist and, as I understood him, he was formally objecting to the grant of permission to the respondent's notice.
42. We decided, however, that permission should be given for the notice to be filed out of time, though for reasons which have been given by Sullivan LJ and agreed to by Etherton LJ and with which also I agree, we accept Mr Lintott's submission that the K decision of the court in Strasbourg does not apply in the circumstances of this case.
43. So, to sum up, the position is that we have heard this appeal in the absence of the respondent. I have explained the circumstances how she chose not to be here and the circumstances in which her respondent's notice has been allowed in out of time. There are matters of costs, but I will not say anything about those until we have heard Mr Lintott's submissions about what the proper order should be on our allowing the appeal, on which we are unanimous.

Order: Appeal allowed