England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 July 2015

1. THE DEPUTY JUDGE: In this matter, the Claimant challenges the Defendant's decisions of 1 May, 19 May, 20 May and 3 June 2015 to refuse to exercise its discretion under section 188(3) of the Housing Act to secure that accommodation is available to the Claimant pending the outcome of its review of her application for assistance under Part 7 of the Housing Act 1996.
2. The law on the subject is to be relevantly found at section 175. All of these are from the Housing Act 1996. 175:

i. "A person is homeless if he has no accommodation available for his occupation."

3. Then under section 184(1):

i. "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 -

(b) whether he is eligible for assistance, and

(c) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part."

4. One of the key points here is whether the Council made such inquiries as are necessary in relation to the Claimant's medical condition. It is accepted that the onus of proof is not on the Claimant.
5. Section 188 provides at 188(3):

i. "The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review."

6. Section 189, priority need, "The following have a priority need for accommodation". That includes by (1)(c) a person who is vulnerable as a result of old age, mental illness, et cetera.
7. Section 193 deals with the duties to persons with priority needs who are not homeless intentionally.
8. There is then provision for a review and by section 204, if an Applicant has requested a review and is dissatisfied with the review, he may appeal to the County Court.
9. The only other matter relied on by the Claimant is under the public sector equality duty under section 149 of the Equality Act 2010. The relevant parts are:

i. "A public authority must, in the exercise of its functions, have due regard to the need to...

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it."

10. The parties have very helpfully analysed the law on this matter. It is important to bear in mind that there has been an important recent case called Hotak v London Borough of Southwark [2015] UKSC 30 which was decided on 13 May 2015. That was decided after all but the last of the decisions under challenge.
11. This reviewed a decision called R v Camden London Borough Council, Ex p Pereira [1999] 31 HLR 317 whereby the test for whether someone was vulnerable was whether they were less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.
12. The Hotak decision clarified that when a housing authority is considering whether an Applicant falls under section 189, the decision maker should compare the Applicant with an ordinary person when the ordinary person is made homeless, not an ordinary actual homeless person. It was emphasised by the Supreme Court that the issue of vulnerability must be determined not so much by reference to each of the Applicant's problems, but by reference to them when taken together and that homelessness covers a number of different situations and is not limited to street homelessness. Also, Ms Lloyd relied on paragraph 41.
13. I agree with Mr Peacock in general terms that Hotak is clarifying an ambiguity that may have arisen from the Pereira decision rather than applying a new test altogether. That is relevant because of the circumstances as to whether the Council applied the proper test in the original letter.
14. It is important that the scope of judicial review is understood in this case. There are two relevant authorities on this. The first is Francis v Kensington and Chelsea Royal London Borough Council [2003] 1 WLR 2248 where between paragraphs 15 and 27 the Court of Appeal stressed that the matter is a matter of discretion.
15. Ms Lloyd refers to R (on the application of) Paul-Coker v London Borough of Southwark [2006] EWHC 497 (Admin) where Forbes J does at paragraph 35 refer to the fact that the notes in that case:

i. "plainly demonstrate little more than a fairly nominal exercise in enquiring into the circumstances of the claimant."

16. At paragraph 48 Forbes J said:

i. "The letter of 24 January 2006 does little more than identify the relevant criteria, but does little or nothing to apply the relevant facts of this case to those criteria and reach a properly or adequately reasoned decision."

17. While it is true, as Mr Peacock pointed out, that this was an unusual case because it depended partly on a test for habitual residence, as can be seen in paragraph 42, I do accept Ms Lloyd's proposition that if lip service alone is paid to the relevant test and to the information put forward by the Claimant, then this would be unlawful.
18. By way of brief background, the Claimant is 58 years old and is single without children. She resided in Tunbridge Wells for about eight years until spring 2013. She was evicted after the property was sold by the landlord Housing Association. She was offered alternative accommodation in Tunbridge Wells for which she signed a tenancy agreement, but never moved in because she feared for her safety.
19. She is said to have been the victim of attempted murder and two attempted abductions and it is said that she was subject to a campaign of harassment. I am taking this from the Claimant's skeleton argument.
20. She has made applications to a number of Local Authorities for assistance under Part 7 of the Housing Act and has been accommodated temporarily, in some instances, by them. Otherwise, she has been staying in hotels and bed and breakfast accommodation on some occasions and in other places, including cafés and night buses.
21. On 7 April 2015 the Claimant approached the Defendant for assistance under Part 7. The Claimant informed the Defendant she was in receipt of Disability Living Allowance as well as Severe Disablement Allowance. She does not use conventional medicine and suffers from various medical conditions.
22. It is now necessary to consider in some detail the relevant correspondence thereafter. The original notice under section 184 referred to the Pereira test and said that the Council had been advised that the burden of proof rests on the Authority. It said that she was not registered with a GP anywhere in the UK and she could not take medication as she was violently allergic to conventional medicine.
23. The letter said that they:

i. "Were unable to take the client's verbal explanation of medical issues. Would require some sort of medical documentation in order to trigger a reason to believe that you are in priority need. I concurred that the burden of proof rests on the Local Authority, but you have not provided a single point of information or evidence for this Authority to investigate you. You have confirmed during the interview that you are not in receipt of any secondary or specialist medical treatment and thus we are unable to make inquiries."

24. So the Council made it very clear that albeit they accepted that the general burden of proof rested on them, they were effectively unable to make inquiries as to her vulnerability.
25. They did, however, attempt to take the matter further because she did attend a GP appointment who wanted to refer her on to a further appointment, but this was rendered impossible because she failed to attend that appointment.
26. Although I fully understand the position taken by Ms Lloyd on behalf of the Claimant (I should say Ms Lloyd has taken all proper points on her behalf), it is difficult to criticise the Local Authority for not making further inquiries when they sought to make them and the Claimant for whatever reason, and they may be good or bad reasons, was unable or unwilling to allow them to do so.
27. The letter, in any event, goes on to say that:

i. "We are of the opinion that if you are suffering from anxiety, panic attacks, IBS and foot pain, you are able to access appropriate medical care from a GP should you wish to do so. Therefore, there is no reason to indicate why this level of care should not be available to you while you are homeless."

28. They go on to say in the letter:

i. "Having considered the evidence, I am not satisfied that you suffer from a severe or substantial physical or mental health disorder or that your activities and basic day to day living are particularly affected. Also, there is nothing to impede your basic daily activities or your ability to support yourself and there are no apparent risks to your health if homeless. There is no evidence to suggest your mental and physical health will make you less able to fend for yourself as a homeless person."

29. Now, clearly that did not take into account the precise guidance in Hotak, but that guidance had not yet been given. I accept Mr Peacock's assessment that this was not, however, entirely different to the principles that were applied in Hotak.
30. What followed is a very strong and convincing letter from Steel & Shamash dated 30 April 2015 and marked "very urgent". It includes this material. It says:

i. "Our client spent her time in hostels, hotels, shelters and seeking assistance from other Authorities. Our client has exhausted any options for accommodation and can no longer cope with being homeless."

31. They then set out what the client suffers from in some detail. I am only going to set out the headings, but there is narrative attached:

i. "(A) Eating disorder; anorexia.

ii. (B) Obsessive compulsive disorder.

iii. (C) Severe irritable bowel syndrome [and I am going to read this section out]. Our client was diagnosed by a specialist in Hove General Hospital with IBS. This condition means sudden and violent emptying of the stomach contents. In the event of an ongoing attack and symptoms, she has no choice but to wash her clothes out in a public toilet while being pressured by members of the public. Our client experiences significant discomfort aggravated by poor sleeping arrangements, little to no food or liquid.

iv. (D) Panic attacks and anxiety.

v. (E) Foot injury.

vi. (F) Exhaustion."

32. They make a request for provision of temporary accommodation.
33. The response to that letter of 1 May, I agree with Ms Lloyd, does not properly respond to the issues. Under "merits of the case" where one would expect normally to find the material on the Mohammed three-stage principles, it simply says:

i. "The background to this case is set out in full in the Council's original decision. I am of the view that the reasoning in this letter is perfectly clear and the decision is entirely lawful."

34. That does appear to me to be the work of someone who is not carrying out the conscientious requirements under the public sector equality duty referred to Lord Neuberger in the Hotak decision and it can properly be read as simply paying lip service to the points put.
35. I do, however, accept what Mr Peacock says to that one has to look at the matter in general terms, but I do think that even if one takes together the material under "new information, material or argument" and "personal circumstances", two things are simply not addressed. Firstly, what appears to be the extreme set of conditions set out quite clearly in the letter of 30 April and secondly the fact that she has been a rough sleeper. I do not think that these are properly addressed.
36. Whilst I fully accept that one should not intervene too much in these sorts of decisions and I also accept Mr Peacock's submissions that these have to be taken quickly and it may be that the Claimant's solicitors were somewhat unreasonable in requesting an immediate response, I do not that think that this conscientiously carries out the duties on the Local Authority.
37. There was then a further letter of 18 May 2014 referring to an occupational therapist report. It is true that that does effectively repeat what the Claimant has said, but it does include these parts:

i. "Mood: Miss Barrett feels exhausted and disheartened most of the time due to her situation. She suffers from severe sleep deprivation. She is in fear of being attacked on the street and this only worsens her anxiety of fear of being in public places."

38. Under "toilet/catheter":

i. "Miss Barrett struggles with public toilets. If she is eating food, this is additionally difficult as she also suffers from OCD which often prevents her using public toilets."

39. There are remarks under "continence, eating, drinking, sleep pattern":

i. "Miss Barrett suffers from extreme sleep deprivation, unable to sleep on the streets, and she is therefore sitting in a night bus some nights. She is in constant fear of being attacked or robbed. She has been attacked on several occasions whereby she had her belongings and handbag and purse stolen while being physically threatened by the attacker. She feels particularly vulnerable to most people being men late at night, often under the influence of alcohol. They are more likely to approach a female more aggressively and this is Miss Barrett's experience while being street homeless."

40. The response to that is a further Council letter of 19 May, which is somewhat surprising in that under "new information" it says:

i. "The OT report does not provide any new information in relation to medical conditions and these have been fully addressed in my previous letter."

41. It does seem to me that the Council has not carried out the due consideration which is necessary.
42. There is a further coda in that on 19 May 2015 Steel & Shamash refer to the then recent case of Hotak and the response on 20 May is that:

i. "I have considered the totality of the evidence on the housing file in light of the new test for priority need and I am satisfied the merits of Miss Barrett's case on review are not in her favour."

43. As I have sought to indicate already, my conclusion is that, unusually, the Council has not given conscientious consideration to the necessary matters. I do not accept that the original decision was unlawful. I do, however, think that the subsequent three Mohammed letters, particularly the first and the second, were unlawful and that the proper course is that the Defendant reconsiders the matter, which is the relief that is sought.
44. I will hear the parties on the question of the appropriate relief, but in general terms I am minded to make a mandatory order that the Defendant reconsiders forthwith whether to provide the Claimant with accommodation pending review.
45. MS LLOYD: My Lord, in light of that, could I invite you to grant interim relief in the form of accommodation pending the decision of whether to accommodate pending review?
46. THE DEPUTY JUDGE: But that is not one of the orders you have sought in your skeleton argument, is it?
47. MS LLOYD: No. There was an original application for that accommodation interim relief in that form.
48. THE DEPUTY JUDGE: Can you just show me it, please?
49. MS LLOYD: It was refused by Parker J and then it was refused again.
50. THE DEPUTY JUDGE: Why is it not in your skeleton argument?
51. MS LLOYD: It is an error on my part.
52. THE DEPUTY JUDGE: What are the terms in which you seek that?
53. MS LLOYD: Sorry, my Lord. The original request was accommodation pending review, but I suppose that the only proper course would be to grant. What we can ask for really is interim relief in the form of accommodation pending the Mohammed decision.
54. THE DEPUTY JUDGE: I am going to hear Mr Peacock on that. Are there any other applications you want to --
55. MS LLOYD: Costs.
56. THE DEPUTY JUDGE: Are you publicly funded?
57. MS LLOYD: Yes.
58. THE DEPUTY JUDGE: What would be the appropriate order?
59. MS LLOYD: That the -- (Pause)
60. THE DEPUTY JUDGE: Come back to me on that point.
61. MS LLOYD: Yes.
62. THE DEPUTY JUDGE: Yes.
63. MR PEACOCK: My Lord, I cannot resist the application for costs.
64. In terms of the application for interim relief, which I am slightly surprised by, the consequence of the claim being allowed is that the Defendant has to take a lawful decision.
65. THE DEPUTY JUDGE: Can I just ask you how long that is likely to take?
66. MR PEACOCK: Well, as I understand it, the review process has got to a "minded to" stage where the reviewing officer has written a letter saying that she is minded to uphold the decision that the Claimant is not in priority need. She has asked for written oral representations in response to that, I think, today and an extension of time for the refusal decision to, I think it was, 4 August. So at some point next week.
67. THE DEPUTY JUDGE: But the consequence of my judgment is surely that you have to take a further Mohammed decision.
68. MR PEACOCK: Yes, I was going to say. Yes.
69. THE DEPUTY JUDGE: How long will that take?
70. MR PEACOCK: I mean, they are taken quickly.
71. THE DEPUTY JUDGE: Yes.
72. MR PEACOCK: Maybe tomorrow or the day after --
73. THE DEPUTY JUDGE: I see.
74. MR PEACOCK: I would have thought.
75. THE DEPUTY JUDGE: In the light of the fact that a further decision will be taken imminently and also the fact that I am not sure that any interim application is really before me, I am not going to make any interim order. I will give both parties liberty to apply if anything goes wrong with that.
76. So you can perhaps write this into the order. You will draw up the order, Ms Lloyd. You can write into the order, I think, an undertaking that the new Mohammed decision will be -- if there is no undertaking, I am going to make an order to that effect -- taken imminently.
77. MR PEACOCK: I am slightly reluctant to give an undertaking simply because I do not know whether the relevant decision makers are there today or tomorrow and so on.
78. THE DEPUTY JUDGE: Well, I am going to make an order that the decision be taken by Friday, so --
79. MR PEACOCK: Right. I think I can consent to that.
80. THE DEPUTY JUDGE: You can consent to that, okay.
81. Well, please make it an undertaking that the renewed Mohammed decision will be taken by close of business on Friday.
82. So just to go through it so there is no misunderstanding, the order will be that there be an order quashing the three Mohammed decisions; not the original decision, but the three Mohammed decisions.
83. MS LLOYD: My Lord, there are four decisions. I did not go to the final one because it just rejects the doctor's letter.
84. THE DEPUTY JUDGE: Okay. Well, if there is a fourth one, then set out the dates of them in the order, please.
85. Then an order that the Defendant reconsiders whether to provide the Claimant with the accommodation pending review. You have your costs and whatever taxation is relevant.
86. Is there anything else?
87. MS LLOYD: No. I do not think so, no.
88. THE DEPUTY JUDGE: No. Okay. Thank you both very much for your assistance. You are free to go. I just need to close my computer.
89. MS LLOYD: Thank you.