England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th October 2002

 


Mrs Justice Rafferty :

1. Consequent upon permission granted on the 20th August 2002 by Crane J the Claimant challenges the 3^rd July 2002 decision by the Defendant that she is not of priority need, pursuant to a S.202 Housing Act 1996 review. In March 2002 the Claimant was granted indefinite leave to remain in the United Kingdom, thus becoming eligible for assistance under Part VII of the Housing Act 1996. On the 18^th March she was examined by Doctor Baluchi, a psychiatrist, and she later provided a letter from her general practitioner dated the 20^th March 2002. On the 22^nd April 2002 her case was considered by the Mental Health Assessment Panel (MHAP) and the London Borough of Enfield (LBE), the Defendant, made a S.184 decision. On the 2^nd May there was a request for review, with detailed representations. On the 7^th May the Defendant exercised its S.188(3) discretion, challenged on the 15^th May. Elias J gave permission to apply for judicial review, and granted interim relief. On the 3^rd July the LBE made a S.202 review decision, the Claimant asked it to exercise its discretion under S.204(4), and it declined to continue the provision of temporary accommodation, giving reasons. On the 10^th July Crane J ordered it to provide interim accommodation with liberty to apply on notice, and directed an oral hearing.
2. In the S.184 decision letter dated the 22^nd April 2002, the Defendant rejected the Claimant’s assertion that she was vulnerable. Available to it was the report by Doctor Baluchi, of the Kimia Institute, and the first of the general practitioner letters, that of the 20th March 2002. Doctor Baluchi’s report reads where relevant as follows:

“I must emphasise that Ms Yeter is presently in a very vulnerable state and if his (sic) housing situation is prolonged, this will undermine our efforts towards her treatment and will further exacerbate his (sic) psychological symptoms. Subsequently, this would have an adverse effect on her mental state and her general well being to the extent that she would be unable to function normally, and her ability to undertake daily chores and manage her day-to-day life would be tremendously affected with possibility of consequent impairment of her cognitive functions and thought processing.”

In summary therefore Doctor Baluchi concluded that she was vulnerable, albeit he had identified no suicidal ideation, and his prognosis was that she needed both treatment and housing.

3. In his letter of the 20^th March, Doctor Kabir, her GP, made an identical diagnosis. Although Doctor Kabir’s second letter of the 23^rd May and that of his partner Doctor Chatterjee of 13^th May reached much the same conclusion, neither was available to the LBE at the point of the S.184 decision. The decision letter recites the consideration of the application by the LBE’s MHAP, but is criticised by Mr Hodgson for the Claimant because it does not state the qualifications held by the panel members. It is agreed that there was no medically qualified doctor on the panel.
4. The review decision of the 3^rd July 2002 is in terms similar to the S.184 decision.
5. S.188(3) Housing Act 1996 so far as material provides that a local housing authority:

“may continue to secure that accommodation is available for the applicant’s accommodation pending a decision on a review.”

6. S.204(4) Housing Act 1996 so far as material provides that:

“Where the authority were under a duty section 188, 190, or 200 to secure that accommodation is available for the applicant’s occupation, they may continue to secure that accommodation is so available – (a) during the period for appealing under this section against the authority’s decision….”

7. In Mohammed (1997) 30 HLR 315 QBD, criteria were identified to which the Defendant must have put his mind before a challenge could arise. The relevant officer must consider whether the decisions were sound, reach a conclusion as to whether enquiries made had been adequate, review any fresh evidence, look at all personal circumstances, and review any new information likely to affect the review decision. In Nacion (1999) 31 HLR 1095 CA, Tuckey LJ described at page 1100 as “entirely futile” an attack upon the exercise of such discretion were the Mohammed criteria met.
8. The Claimant submits that the LBE failed to follow Mohammed guidance, in particular by its failure to recognise the merits of the Claimant’s case.
9. In R v Newham LBC ex parte Lumley (2001) 33 HLR 124 the court drew a distinction between a challenge to refusal pending appeal as opposed to one pending review. After review, the fact finding exercise was complete, it concluded, saying at paragraph 46 “by this time most of the errors if any made on the first consideration of the case should have been put right by the senior officer who conducted the review….”. Such has been recognised by parliament in the new version of the Homelessness Code of Guidance for Local Authorities, which at paragraph 14.12 reads:

“In considering whether to exercise their power to accommodate pending a decision on a review, housing authorities will need to balance, on the one hand, the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to them, and, on the other, proper consideration of the possibility that the applicant might be right (and the housing authority wrong) and that to deprive the applicant of accommodation could result in the denial of an entitlement under Part 7. In weighing the balance, there are certain matters that the housing authority will always need to consider (although other matters may also be relevant):

a) the merits of the case itself and the extent to which it could be said that the decision was either one that appears to be contrary to the merits of the case or one that required a very fine balance of judgment that could have gone either way;

b) whether any new material, information or argument has been put to the housing authority, which could have a real effect on the decision under review; and

c) the personal circumstances of the applicant and the consequences to him or her of a decision not to exercise the discretion to accommodate.”

Arguably, this distinction in approach has effectively been removed by paragraph 14.18 which reads as follows:

“In deciding whether to exercise their power to accommodate pending an appeal to the County Court, housing authorities will need to adopt the same approach, and consider the same factors, as for a decision whether to exercise their power to accommodate pending a review (see paragraph 14.12).”

10. The irrationality which the Claimant seeks to establish is said to be evidenced by the description of Doctor Baluchi’s opinion in the 3^rd July decision letter where it reads as follows:

“I believe that the decision review letter covered consideration of Doctor Baluchi’s letter and explained why more weight was given to evidence from the GP…… No evidence was rejected, it was carefully weighed against medical evidence which gave a differing opinion. Just because the panel chose to give more weight to certain evidence does not mean that any evidence was rejected.” And later

“The Decision Review panel noted that the commissioned report from the Kimia Institute was based on one meeting with you of an hour and half duration. There were two recent letters and a report from your GP surgery and the panel felt more weight should be placed on the information from the surgery.”

11. Mr Hodgson submits that this correspondence shows the authority mistakenly concluding that medical opinion differs as between consultant psychiatrist and general practitioner, whereas that is, he contends, simply wrong.
12. It is important to remember that there is here pending a defended appeal to the County Court. The LBE has twice considered the Claimant’s case. It had the benefit of the report from Doctor Baluchi, the opinion of the MHRP, and the review panel made its decision (under S.202 Housing Act 1996) thus equipped. The challenge here is to the section 204(4) decision and therefore the attention of this court should go to the decision letter of the 3^rd July 2002.
13. The first letter dated 3^rd July 2002 reads:

“Review under S.202 Housing Act 1996

The council has now completed a review of our homeless decision of 22 May 2001.

In carrying out the review the council has taken into account all relevant considerations, including the following:

(1) The Housing Act 1996

(2) Code of Guidance

(3) Relevant Caselaw

(4) Documents and notes from the homeless file

(5) Interview notes with yourself

(6) Medical evidence from your GP

(7) Report from Dr Baluchi

(8) Opinion from the council’s Medical Assessment Officer and the council’s Mental Health Assessment Panel.

(9) Representations from your solicitor.

It has been decided that the original decision that you are not in priority need is correct and should be upheld.

The Act states that a person has a priority need for accommodation in particular circumstances. These circumstances are:

(a) A pregnant woman or person with whom she resides or might reasonably be expected to reside.

(b) A person with whom dependent children reside or might reasonably be expected to reside.

(c) A person who is vulnerable as a result of old age, mental illness or handicap or physical disability, or other special reasons or with whom such a person resides, or might reasonably be expected to reside.

(d) A person who is homeless or threatened with homelessness as a result of an emergency such as fire, flood or other disaster.

The council considered whether you came under category © as a result of your depression, and in reaching our decision the council had special consideration of the following:

1) Your GP’s letters of 20 March 2002, 13 May 2002, and report of 23 May 2002, stating that you were feeling stressed and low as a result of a recent pregnancy termination, and being made homeless from the accommodation provided by the council’s Asylum Team. Also that you have flashbacks, paranoid feelings and sleep disorder.

2) The report commissioned from the Kimia Institute, and completed by Dr Baluchi. The report concluded that you are suffering from depression and anxiety as reactions to Post Traumatic Stress Disorder, following your experiences in Turkey. This has been exacerbated by having to move to a ‘strange land’, cultural changes, and by your housing problems.

3) The council’s Mental Health Assessment Panel’s opinion was that you are suffering from anxiety termination, and not from a severe and enduring mental illness.

The decision Review Panel noted that the commissioned report from the Kimia Institute was based on one meeting with you of an hour and half duration. There were 2 recent letters and a report from your GP surgery and the panel felt that more weight should be placed on the information from the surgery. The panel accepted the Kimia report’s findings that there is an underlying problem relating to Post Traumatic Stress Disorder. The medical evidence points to this now being exacerbated by housing problems and your pregnancy termination, as outlined by the GP surgery. The panel felt that it would not be unusual in these circumstances for a person to experience feelings of depression. The problems relating to moving to a “strange land” and coping with cultural changes, are not out of the normal experiences for those seeking asylum, and in your case your move to the UK was in 1995, over 6 years ago. It appears that your recent anxiety and depressive episodes have coincided with the pregnancy termination and you loss of accommodation.

The council considered carefully your personal circumstances and how far your medical and physical ailments would affect you as a homeless person. On the basis of the evidence available the council cannot conclude that you are vulnerable as a result of physical, or mental illness or handicap, nor are you less able to fend for yourself than an ordinary homeless person, so that you would suffer any injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects.

The council does not have a duty therefore to secure accommodation for you. Your temporary accommodation booking at Flat 10, Lousianna Close, Enfield will end on Thursday 11 July 2002 and you should arrange to leave on, or before that date. You are able to get advice and assistance to assist you in finding accommodation. The Housing Advice Team can be contacted at the Civic Centre on 0208 379 4384.

You have the right to appeal this decision to the county court, if there is a point of law which you believe has not been decided correctly. The county court proceedings must be brought within 21 days.”

14. The second 3^rd July 2002 letter reads:

“I refer to your letter of 3^rd July 2002, requesting an extension of the provision of accommodation pending an appeal to the county court.

This request has been declined for the following reasons:

I believe that adequate medical enquiries have been carried out including consideration of:

2 letters from GP

Report from GP

Opinion from Mental Health Assessment Panel

Report from the Kimia Institute.

I believe that the decision review letter covered consideration of Dr Baluchi’s letter and explained why more weight was given to evidence from the GP.

The correct ‘Pereira test’ was applied.

No evidence was rejected, it was carefully weighed against medical evidence which gave differing opinion. Just because the panel chose to give more weight to certain evidence does not mean that any evidence was rejected.

Temporary accommodation is an extremely expensive and scarce resource. The council is therefore under a duty to council tax-payers to ensure that it is used carefully. In this case you are providing no new information which would affect the decision reached by the Decision Review Panel. I am satisfied that this decision is safe and on that basis the accommodation will be cancelled on 11^th July 2002.”

15. It is plain that the LBE applied the correct test as set out in Periera (1998) 31 HLR 317 CA. It accepted the medical evidence the Claimant provided, but nevertheless concluded that the test, in its judgment, was not satisfied. In my view it is clear that there had been no rejection of the opinion of Doctor Baluchi, but that, as it was entitled to do, it had taken into account the more recent conclusions of the Claimant’s GPs. It is a misreading of the longer 3^rd July 2002 letter to suggest that “special consideration” of the medical evidence and assessment is anything other than a recitation of fact. One letter from her GP recorded the distress she had suffered because of the termination of pregnancy she underwent on a date close to 20^th March 2002.
16. It was always open to her to provide the LBE with more medical evidence, a course she did not adopt. It is not bound to accept a consultant’s opinion, but must reach its own conclusion on whether the Periera test be satisfied. Comparison is to be made with an ordinary person who is homeless, and such would be expected to endure by virtue of the homelessness some features of depression. That depression is likely to be exacerbated if the homelessness continues.
17. Doctor Baluchi found some memory and concentration impairment and loss, and described the Claimant as apparently fairly intelligent, lacking thought disorder or any indication of cognitive problems.
18. Lumley is in my view plainly distinguishable. This case is a claim going to S.204(4), not to S.188(3). In Lumley major shortcomings were conceded. In this case the MHAP gives reasons so that the review panel may consider them. It had the benefit of a report from a consultant. Finally, it cannot be that a review decision is tainted in the Lumley sense merely because a case arguable on the appeal is made out.
19. I can find no grounds for describing the 3^rd July 2002 S.204(4) decision letter perverse. The author of both 3^rd July letters was the same, a Mr Neil Harris, whose composition makes plain that he had a good grasp of relevant facts. This case does not come within the exceptional circumstances which would allow a successful challenge, and for the reasons rehearsed, this claim fails.