England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 June 2019

HHJ Walden-Smith

Introduction

1. Ms Rania Ades has brought this claim to judicially review the decision of the London Borough of Camden ("Camden") pursuant to the order made on 28 November 2018 by Philip Mott QC, sitting as a Deputy High Court Judge. Camden did not appear at that hearing as they had not received notice.
2. Permission was limited to the application to quash the decision of 30 April 2018 and a subsequence decision made on 12 September 2018 on the grounds of failing to take proper account of the medical evidence and/or failing to give proper reasons for awarding zero Health and Housing points and zero Adverse Housing Conditions points.
3. I had the benefit of hearing Ms Ades acting in person and Mr Gallivan on behalf of Camden. Both had provided written submissions prior to the hearing. Ms Ades is an extremely articulate and intelligent individual and was able to deal with all the points that she wished to make in support of her application in considerable detail. She had sensibly notified the court prior to the hearing of various reasonable adjustments that she required in order to meet her various medical difficulties and it was possible to make those adjustments without difficulty.
4. Ms Ades is originally from Egypt. She sought asylum in the UK as a persecuted Jew approximately seven years ago. She is now naturalised in the UK.
5. Ms Ades has made a number of applications to Camden from mid-2014 in order to obtain secure local authority housing. Her motivation for doing so is that she believes that such secure accommodation would assist her in recovering from her various mental and physical health issues and she contends that her physical and mental health has deteriorated considerably since she has been living in her current privately rented accommodation since 3 May 2011. Ms Ades did not succeed in those applications for housing for a variety of reasons which are set out in detail in her statement of facts. In April 2018 she made a further application which resulted in the decision promulgated on 30 April 2018, and the subsequent decision of 30 September 2018, which is subject to challenge.
6. Ms Ades challenges the decisions of Camden on the basis that Camden have acted illegally, irrationally and unreasonably. She contends that there has been deliberate premeditated bias on the part of the different officers who have been involved in Ms Ades's application for housing, on the basis of her race, religion and disability. That allegation is extremely serious and is most strenuously denied by Camden.
7. Camden contend that allegations of such seriousness, particularly where there is an implicit (if not explicit) allegation of conspiracy between the various officers of Camden to act against Ms Ades on the basis of bias and discrimination, need to be supported by clear evidence and there is no evidence whatsoever to support her allegations.
8. Ms Ades does not limit her claim to an order setting aside the determination of Camden and for it to be remitted for further consideration. She considers that would not be sufficient as Camden will simply continue in the same way. What she seeks is an order from the court that Camden rehouse her in ground floor one-bedroomed secure accommodation.

Allocation of Housing

9. Section 166A of the Housing Act 1996 provides:

"(1) Every local housing authority in England must have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation."

Camden allocate housing to applicants in accordance with their housing allocation scheme, which was updated in August 2018. The allocation scheme expressly sets out who can apply for social housing in Camden and how priorities are set for who is housed. The strains on social housing are extremely well-known. There is a very limited supply and high demand. This mismatch between demand and supply is particularly acute in the centre of London and allocation schemes are designed to ensure best use is made of the social housing available. The allocation scheme awards points to prioritise social housing for those who are eligible for assistance and are in the greatest need. The scheme sets out eight points groups. Ms Ades contends that she ought properly to have been awarded points within two of the groups and her complaint is that having been awarded nil points under both schemes is irrational.

10. Group B1 relates to insanitary, unsuitable or overcrowded housing conditions. Clause 4.4.1 provides that an individual may be eligible for points if that individual is living in insanitary, overcrowded or unsuitable housing conditions and the Council agrees to award point under this category. 4.4.2 provides that an individual will be eligible for 50 points if: "you are a private sector tenant renting a property where a move is desirable as your housing situation could seriously affect your health and wellbeing. The Council will assess your case and determine that: * there are significant hazards in your property, and /or * your property is uninhabitable, and/or * you are living in conditions that the Council should be able to improve through informal or formal enforcement action" and that an individual will be eligible for 300 points if "you are a private sector tenant renting a property and you have an urgent need to move because there is an immediate threat to your health and wellbeing. The Council will assess your case and determine that *there are significant hazards in your property, and/or * your property is uninhabitable, and/or * your living conditions cannot be improved."
11. 4.5.5 of the allocation scheme provides that a Camden Council tenant will be eligible for 600 points if the Council property has been assessed as needing essential repairs. Ms Ades contends that, while she rents a studio flat on the private market, she should properly be considered as a Camden Council tenant as the freehold owner of the property is Camden and that Camden has let the property on a long lease to her immediate landlady. In fact, the property was purchased pursuant to the right to buy legislation, and while Camden retain ownership of the freehold, Ms Ades is a tenant of a private landlord and her tenancy operates in accordance with the provisions of the Housing Act 1988. There is no substance in Ms Ades' contention that she should be treated as a local authority tenant. Her landlady is a private individual and the fact that the freehold owner is Camden and that the property used to be rented by them is of no consequence. She does not have security of tenure and Camden are not her landlord.
12. With respect to her health conditions, Ms Ades relies upon clause 4.6 (house and health related needs). That clause provides, under 4.6.2, that to be assessed as eligible for housing and health related needs points, you must demonstrate that "* your medical condition is being caused or made worse by your housing conditions, and * your current property cannot be improved or adapted to meet your needs at a reasonable cost, and * rehousing is likely to significantly improve your condition".
13. Clause 4.6.4 provides that for Category 1 an individual is eligible for 500 points if the applicant's medical condition and housing circumstance are having a serious impact on that individual's health and wellbeing and they are in urgent need of rehousing. Clause 4.6.5 provides that for Category 2 an individual is eligible for 150 points if the medical conditions and housing circumstances of that individual are having a serious impact on their health and wellbeing and rehousing would be necessary.
14. Clause 4.6.9 provides that more information on medical points and assessment is contained in appendix B. Appendix B sets out a non-exclusive list of conditions which provides what an individual needs to be eligible for points under a health and housing points assessment. To be eligible for points due to urgent housing and health related needs, an individual needs to show, amongst other things, that they are housebound due to housing conditions, that there are substantial care needs, that there is permanent use of substantial medical equipment such as kidney dialysis, there is advanced motor neurone disease or multiple sclerosis. These examples show the extreme nature of the conditions in order for an individual to be eligible for points due to urgent housing and health related needs. To be eligible for any points due to housing and health related needs which means that it would be desirable for an individual to move then matters that are listed include having significant back or knee problems and difficulty carrying children or shopping upstairs, have a severe and enduring mental illness where a move would substantially improve well-being, Chronic Obstructive Pulmonary Disease or Emphysema, schizophrenia or bipolar affective disorder.
15. The housing allocation scheme additional includes a discretion whereby there may be exceptional circumstances giving rise to a housing need not described or anticipated by the scheme.
16. The purpose of the housing allocation scheme, in accordance with the provisions of section 166A of the Housing Act 1996, is to prioritise social housing for those who are both eligible for assistance and in the greatest housing need. As Camden makes clear in its decision letter:

"There are not enough Council and Housing Association homes in Camden to meet the enormous demand, so even those with high points totals may not be considered for housing offers."

17. Ms Ades complaint is that Camden have acted irrationally, motivated by "persistent bias and discrimination against her on racial, religious and disability grounds", in failing to award her any housing and health related points and in failing to award any insanitary or unsuitable housing condition points.

The application

18. The relevant application for this review is that made by Ms Ades in April 2018, numbered 407130. The application was considered by the Medical Assessment Officer and zero medical and insanitary and unsuitable housing condition points were awarded. This decision was a stage 1 decision and pursuant to paragraphs 9.2.4 and 9.2.5, Ms Ades was entitled to request a stage 2 review.
19. Ms Ades requested the stage 2 review which was determined on 12 September 2018. In the meantime, a lengthy pre-action letter had been sent on 25 July 2018 and these proceedings were instituted on 10 August 2018. Initially, the application for permission to judicially review Camden was refused by Murray J. He had not seen the determination promulgated on 12 September 2018 and refused permission on the basis that the application had been made prematurely as Ms Ades had not yet exhausted the internal review procedure.
20. Ms Ades renewed her application for permission to bring judicial review proceedings before Mr Philip Mott QC. Permission to bring these judicial review proceedings was given on the grounds that it was clearly arguable that (1) no reasonable authority could have awarded zero medical points in light of the evidence before Camden with respect Ms Ades' medical conditions, including the psychiatric report; (ii) the decisions of 30 June 2018 and 12 September 2018 were "so devoid of reasoning" that they failed to give proper or sufficient reasons for the refusal of giving any points.
21. Sensibly, the Deputy Judge put forward a pragmatic suggestion that

"It would save both the claimant and the Council having to go through a full hearing if the Council would agree to withdraw its existing decision, to obtain full medical evidence from and on the claimant together with evidence relating to her property and to take a fresh decision subject to the usual review process. By agreement, the claimant could be stayed for a number of months to allow that process to be completed. "

22. In light of that indication from the court the parties agreed to a three months stay to enable Camden to reconsider. After consideration, on 4 April 2019, Camden sent a 5 page detailed "minded to" letter indicating that Camden was minded to find that she did not have a housing need to be on Camden's Housing Register. The letter acknowledged that Ms Ades qualified for consideration as she had been living in Camden for at least five years out of the previous seven. However, she did not satisfy the second criteria – namely that it was her housing situation which contributed to her medical conditions. The "minded to" letter set out the various medical evidence that had been provided, and considered by Camden including the letter dated 13 September 2017 from Dr Petros Lekkos, a consultant psychiatrist. Camden also took into account the report of the neurosurgeon dated 2 July 2013. Ms Ades has another appointment with a neurosurgeon. Camden had indicated that they would take into account any new report from a neurosurgeon but that appointment has now been put back to 9 July 2019 and so Camden were willing to adjourn the hearing of Ms Ades' application. However, Ms Ades was insistent, both before and at the hearing, that her application should proceed without the benefit of any further evidence from the neurosurgeon.
23. In essence, Camden's minded to letter set out the medical and other evidence that had been taken into account and concluded that while it was acknowledged that Ms Ades may have had repair issues in her home:

"… in applying the criteria from the scheme … I can see no correlation between any repairs issues and your health and wellbeing that would determine a desirable or urgent need for you to move. Neither have you provided any information to support this. In conclusion apart from the reported water penetration, no other mention has been made regarding the condition of the property."

24. At that point Camden acknowledged that there was to be an appointment with the neurosurgeon and that would be taken into account once received. However, as set out above, that appointment was put back to 9 July 2019 and Ms Ades wanted to have the determination made without the benefit of that evidence.
25. On 11 April 2019 Camden issued its stage 2 decision letter setting out what had been set out in the "minded to" letter – in particular that there was no correlation between repairs and health and well-being that would determine a desirable or urgent need for Ms Ades to move. Since 11 April 2019, Camden has been endeavouring to obtain agreement from Ms Ades to allow the matter to be adjourned in order to enable further consideration of the up-to-date medical situation after the 9 July 2019 appointment. Ms Ades was not willing to agree to that course and I allowed the hearing to proceed as Ms Ades has taken the unambiguous stance that she has provided sufficient medical evidence and her needs and conditions are already fully set out and she contends that this further medical evidence would not make a difference to the outcome with Camden.

The Challenge

26. Permission was granted to challenge the decisions communicated in the letter dated 30 April 2018 and the subsequent decision of 12 September 2018. By virtue of the local authority reconsidering that decision in line with the suggestion made by the Deputy Judge when permission was granted, Ms Ades has already had the benefit of obtaining a review of that decision. Consequently, what she is now challenging is the decision made on 11 April 2019. She does not have permission for that challenge but Camden have taken the pragmatic approach of dealing with this hearing as a challenge to that decision of 11 April 2019.
27. The decision letter of 11 April 2019 clearly takes into account all the medical evidence available and sets out in full the reasoning behind the decision made. The concerns expressed by Mr Mott QC in the decision granting permission to bring judicial review proceedings have been met and no longer apply so that the challenge to the 30 April 2018 and 12 September 2018 decision letters falls away. In considering the challenge to the later decision letter dated 11 April 2019, the court is guided by the Court of Appeal guidance provided in R (o.a.o. Ariemuguvbe) v Islington LBC [2009] EWCA Civ 1308. Ariemuguvbe explicity deals with the provisions of part 6 of the Housing Act 1996, the statutory procedure that governs the allocation of social housing by local authorities. While the facts differ from Ms Ades' case, that does undermine the fundamental principle set out by Lord Neuberger (then Master of the Rolls) who said as follows:

"While any document prepared for public consumption should be as clear, short and simple as possible, it is particularly true of housing allocation schemes …They are intended to be read by, and administered for, the benefit of people who require public housing and their families, and they are intended to be applied in multifarious different circumstances in which great difficulties can often arise…It is plainly right for the court to apply a common sense and a practical approach to the interpretation of the scheme, and indeed an interpretation which allows a sensible degree of flexibility when it comes to dealing with individual cases. That this approach is appropriate is reinforced by the wide discretion given to local housing authorities by [part 6 of the Housing Act 1996]."

28. In applying the allocation scheme, the housing officers charged with the decision making, have to take into account the "multifarious different circumstances" that will be presented by the many individuals with social housing needs living within the London Borough of Camden. Those housing officers have a knowledge of the range of needs across applicants and whether the need being presented is sufficient, in all the circumstances, to qualify for the award of points.
29. The wording contained within 4.4.2 of the allocation scheme, dealing with the condition of the property, contain words which plainly require the decision makers to exercise judgment. There is not an automatic awarding of points as the scheme provides that "You may be eligible for points if you are living in insanitary, overcrowded or unsuitable housing conditions and the Council agrees to award points."
30. The decision letter of 11 April 2019 properly sets out the evidence with respect to the allegations of disrepair, including the report of Silvia Suarez – the Environmental Health Officer – contained in the letter dated 25 May 2018. In that letter she reports that under the category Damp and Mould Growth hazards "the damp patch does not represent a serious hazard" and that while repairs should be undertaken to the living room there is no purpose until the source of the leak has been identified and remedied. The issue with respect to identifying and remedying the leak is an issue with Camden as the freehold owner which is separate to the housing allocation issue. While it may indicate a failure on the part of Camden as freehold owner to keep the properties in repair so that Ms Ades' landlady should be taking the matter up with Camden – it does not affect the allocation points as it has been assessed as not representing a serious hazard. It is not apparent that there has been any further leaks and the author of the decision letter quite clearly takes into account all the evidence available to her and assesses that as against the allocation scheme and comes to a perfectly proper conclusion that there is neither an urgent need to move nor is a move desirable within the context of the allocation scheme.
31. I appreciate from what Ms Ades has said that she would like to move and finds her present accommodation difficult. I further appreciate from the photographs that there is some evidence of disrepair but it cannot be said that Camden have acted irrationally or unreasonably in coming to the conclusion that there are no points to be awarded on the issue of disrepair in light of the evidence before the decision maker.
32. With respect to ill-health, I am satisfied that Ms Ades does suffer from both physical and mental ill-health. Evidence was put before Camden in the form of a Lumbar Spine report dated 30 January 2012, a report from a Consultant Neurosurgeon dated 2 July 2013, a report from a Consultant Psychiatrist (Dr Lekkos) dated 13 September 2017, a NHS diagnostic report dated 11 January 2018, and a letter from Dr Ward of Camden's Pain Service dated 1 February 2019. In summary, the pain included neck and shoulder pain, pain at the back of her head, frozen shoulders, low back pain, significant Achilles tendon pain, and significant anxiety and depression. Dr Lekkos' report refers to Ms Ades being socially isolated, and that she is desperate to move out of her current accommodation into secure council accommodation which would provide her with stability and that living in that studio flat is a "constant reminder of the trauma she has been going through". The letter from Dr Thakur of the Department of Neurosurgery dated 18 February 2018 refers to the low back pain but that surgical intervention will not assist and the things that are most likely to benefit Ms Ades are physiotherapy and pain team input. The letter from Camden Pain Service also notes her conditions, including the lumbar pain, and refers to pain management. Contrary to Ms Ades' submissions, it appears from the decision letter that Camden did accept that Ms Ades does have medical issues but Camden does not accept that those issues were caused by her accommodation or that she was properly entitled to be awarded any housing points as a consequence. Camden were not failing to take into account relevant evidence. The conclusions reached by Camden are ones that Ms Ades does not agree with, but that does not mean that Camden has acted irrationally.
33. The decision letter properly records the various conditions that Ms Ades is afflicted with but concludes that there is a lack of causal nexus between the accommodation and the ill health. The conditions Ms Ades suffers from are not those that fall within the requirements for urgent housing and health related needs and while it is argued that the various ailments make it desirable for her to move from her current accommodation, the decision maker came to a properly reasoned decision that her health issues are not being caused or being made worse by her current housing circumstances. It appears that Ms Ades may have been interpreting the allocation scheme to mean that if she has any of the listed conditions then she is eligible for points as it would be desirable for her to move, whereas the scheme clearly provides that in order to be eligible for points there has to be a finding that health condition is caused or made worse by reason of the housing. While Ms Ades contends that she is entitled to be rehoused and that the accommodation is having a significant effect on her well-being, the decision maker has made a properly reasoned conclusion that while Ms Ades does have various conditions these have not been caused or made worse by the housing conditions. That conclusion is one that Camden were properly entitled to reach and is unimpeachable.
34. Ms Ades further contends that Camden failed to meet her legitimate expectations. There is nothing to support such a finding. Ms Ades may have herself an expectation that she would be rehoused by Camden into secure accommodation but that is not a legitimate expectation created by the allocation scheme which clearly sets out the various matters that Camden will take into account. It does not suggest that there can be an expectation of rehousing. Any such expectation on the part of Ms Ades is unrealistic.
35. Finally, Ms Ades contended that she was vulnerable as a consequence of her situation as a single female refugee and that she had the difficulty of not being accepted as a consequence of not being able to prove being Jewish through the maternal line. Such vulnerability caused by isolation is sadly not exceptional and there is no basis for contending that Camden acted irrationally by virtue of not treating her as an exceptional case.

Bias/discrimination

36. Ms Ades does make serious allegations that Camden have acted with bias and have discriminated against her. She contends that the decision is irrational and unlawful and relies for her case law upon which looks to be an extract from a paper given by a member of the Bar at 39 Essex Chambers. The cases referred to therein are well known authorities for the principles upon which judicial review rests. As I have already set out the decision letter is entirely rational and clear and I do not accept that Ms Ades has a proper challenge.
37. It is necessary, however, to consider the allegations of bias and discrimination. Ms Ades contends that these allegations arise from the fact that she is a Jewish refugee and that she was referred to Jewish Care when she was assessed as not being eligible for social housing and that she ought to have been assisted and would have been assisted if she were not Jewish. She contends that Camden unlawfully delegated their responsibility to Jewish Care to look for suitable accommodation for her. The documentary evidence clearly shows that is not what happened. Camden were not "disregarding her needs" rather they were suggesting different charities, including a charity that assists single homeless persons, which might be able to assist her. Given that Ms Ades describes herself as isolated, without friends and family, a single female refugee unable to establish that she was Jewish because of not being able to establish her mother was Jewish, the suggestion of support from a charity does not in any way seem inappropriate. The note relied upon so heavily by Ms Ades dated 30 April 2018 sets out that if she were to be made homeless then she should be contacting the homelessness prevention team and that as she is isolated and lacking support she could contact Jewish Care for support and help her into accommodation. That is not a delegation of responsibility and it is not discriminatory.

Conclusion

38. There is no evidence whatsoever that Camden had pre-determined that they would not offer housing by reason of her race or religion. On the contrary the decision letter clearly sets out all the evidence presented to Camden and sets out clearly and rationally the basis for the decision in accordance with the allocation scheme.
39. There is no justifiable complaint about the decision making process of Camden and this judicial review fails.
40. An order has been drafted to reflect the decision that this judicial review of the decisions of Camden contained in the letters dated 30 April 2018, 12 September 2018 and 11 April 2019 are dismissed. Camden has not sought costs and there is, therefore, no order for costs. Ms Ades has indicated a wish to appeal and I deal with that application separately.