Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 162

P779/15

OPINION OF LADY WOLFFE

In the petition

LW (AP)

Petitioner;

for

Judicial Review of Decision letters of 28 October 2014 and

4 February 2015 of Stirling Council

Petitioner:  Beynon;  Drummond Miller LLP

Respondents:  Stalker;  CMS Cameron McKenna LLP

4 December 2015

Introduction
[1]        By this petition for Judicial Review the petitioner challenges the review decision of the respondents dated 4 February (no 6/2 of process) (“the Decision” or the “Decision letter” as the context requires) upholding the earlier decision dated 28 October 2014 (no 6/1 of process) (“the first decision”) that the petitioner was intentionally homeless.

Scope of matters argued in these proceedings
[2]        While the petitioner has now obtained other accommodation, in a B&B, it was explained that the petition was not thereby rendered academic.  This was because there may subsequently arise an issue as to whether her present B&B accommodation would be such as to render her “homeless from home” (meaning that, while physically accommodated, it was not reasonable for her to be expected to reside there on a permanent basis) and, if her present accommodation were of that character (which is not an issue in these proceedings), there was the prospect of a fresh application for permanent accommodation from the respondents.  In determining that matter, should it arise, it would remain relevant for the respondents to consider whether the petitioner was or was not intentionally homeless, and which was the essential issue in these proceedings.  It was for this reason, which the respondents’ counsel fairly explained, he was not insisting in his averments at the end of answer 5, nor his fourth plea-in-law, which had challenged the lack of utility of this petition.

The facts
[3]        The petitioner was a tenant of private rental property at an address in Stirling (“the rental property”) from 1 August 2013 until decree for recovery of possession was granted in September 2014, following a Notice to Quit served on her  on 17 February 2014 (“the NTQ”).  While initially, the lease of the rental property had been a short assured tenancy of six months duration commencing on 1 August 2013, it had been continued by tacit relocation on 31 January 2014.  On the material presented to the court, on about 13 June 2013 a case worker of the respondents met with the petitioner in advance of the commencement of her tenancy of the rental property.  The petitioner was advised at that meeting that, while she would receive Housing Benefit (“HB”) in respect of her forthcoming occupation of the rental property, there would be a shortfall of about £10.80 per week (“the shortfall”).  This was due to deductions from that HB by the Department of Works and Pension (“the DWP”) to recoup an overpayment of benefit to the petitioner at an earlier point in time.  She was also advised at that meeting of the importance of meeting her obligations under the tenancy, in particular, to pay the shortfall from other sources of income.

[4]        In point of fact, the petitioner did pay the shortfall for a period of four months, to the end of November 2013.  It is understood that rent arrears only began to accrue in respect of the rental property in December 2013 and January 2014, with the consequence that the landlord proceeded to serve the NTQ. 

[5]        The petitioner has a history of mental health issues.  In particular, as noted in a letter from a Community Practice Nurse (“CPN”) dated 19 November 2014 (the “CPN Letter”) (no 6/8 of process), the petitioner first became known to Psychiatric Services in 2006, after referral by her GP for depression, anxiety and agoraphobia.  She was assessed as also experiencing psychotic symptoms, being paranoid and suspicious of others and of her environment.  It is also recorded in the CPN Letter that, during that time, her contact with the community mental health team included hospital admission (for suicidal ideation) and outpatient care, albeit at some unspecified point she disengaged from Psychiatric Services.

[6]        In about March or April 2014, the petitioner again came to the notice of the CPN by reason of her admission to hospital and detention under the Mental Health (Care & Treatment) (Scotland) Act 2003.  She was discharged, but again detained under the same legislation.  As at the date of the CPN Letter it was noted that her treatment continued under community treatment order. 

[7]        The CPN Letter concluded that the nature of the petitioner’s illnesses:

“significantly affected her ability to function and reduced her level of being responsible ...  At this time, [the petitioner] had no apparent insight to how unwell she was and unaware of her day-to-day responsibilities.”

The CPN Letter concluded by noting that the care and the treatment of the petitioner remained in place for the foreseeable future.

The Decision
[8]        The Decision extends to three closely-typed pages.  So far as material, it notes that the petitioner wished to appeal against the first decision, making a finding of intentional homelessness, because “there are significant mental health issues which you believe if taken into account would mean that you did not make yourself intentionally homeless”.  Thereafter the author of the Decision letter sets out the material to which she has had regard, which included “information supplied by your CPN [Community Psychiatric Nurse]….”  as well as the  respondents’ mental health officer, its housing options and homelessness team and the housing support officer. 

[9]        It is accepted that the author of the Decision letter set out the correct test she had to apply, namely that in order to be assessed as intentionally homeless, the applicant:

“must have deliberately done or failed to do something the likely result of which is that he/she will be required to leave their accommodation that was reasonable to occupy.  The applicant must also have been aware of all of the relevant facts before taking or failing to take the deliberate action”.

[10]      After narrating the homelessness assessment comprising the first decision and the fact of the NTQ, the Decision letter then states “[i]n reaching my decision I have taken into account a number of factors outlined below”.  The next two paragraphs of the Decision letter state:

“With reference to your mental health, there is no disputing that you have been known to Stirling Mental Health Services for some years and have suffered periods of significant mental health difficulties over a number of years.  I am also aware that you had periods in and out of hospital both voluntarily and involuntarily and that you are currently on a Community Treatment Order and working well with all services.  In terms of the homeless assessment, I have looked at the duration of the tenancy at [the rental property], with reference to your mental health, I am aware you suffered short periods of mental health difficulties and that you were in hospital for a short time on a voluntary basis.  However, I am of the view that the duration of your difficulties was not for the whole duration of the tenancy.   In addition I understand you have been assessed as being competent and having the capacity to manage your own financial affairs and that you have sole responsibility for doing so. I spoke to [the CPN] who has confirmed that you have been assessed as having capacity to deal with your financial affairs and I have no information to suggest you have ever been assessed as NOT having capacity to deal with your financial affairs.

In terms of demonstrating your ability to manage your own financial affairs, I have taken account of the following facts.

(1)You have a bank account in your own name and your benefits are paid into this account.

(2)        Your Housing Support Assessment only identified that you required assistance with ‘Housing Benefit, Council Tax and Rent payment’;  you were not identified as needing help with ‘Budgeting and Paying Bills’.

(3)        The short assured tenancy was continued for a further 6 months from 31 January 2014 with the NTQ only being issued in February 2014.  I am of the view that the landlord would not have continued the tenancy for a further 6 months if he was not content with the way the tenancy was operating immediately before renewing it.

(4)        In the 3 months before the start of your short assured tenancy you made payments to your temporary accommodation account and you also made some payments to your private landlord during the tenancy.  I am also aware that currently you are continuing to make payments to your temporary accommodation costs.  This demonstrates to me that you understand your responsibilities to pay rent/accommodation costs.”

[11]      The Decision letter then details in the next three paragraphs matters about the petitioner’s ability to pay the shortfall (about which there is no issue);  it refers to the meeting of council officers with the petitioner to ensure she understood the impact of the DWP deduction from her HB, which created the shortfall, and that it was incumbent upon the petitioner to meet that shortfall;  and about the additional practical support afforded and assistance in relation to white goods and utilities provision for the rental property. 

[12]      The Decision letter then states:

“Weighing up all the evidence available to me and taking the above factors into account, I am of the opinion that like many other tenants, although you may have sometimes struggled to make rent payments, with reference to your short-assured tenancy at [the rental property], you had sufficient income to meet your rent payments, you understood your responsibilities to pay rent and keep your benefits up to date and demonstrated the ability to do this.  Finally, a significant amount of Housing support was provided to you in order to help and assist you to maintain this tenancy.

Taking all the above into account I am of the opinion that your tenancy ultimately failed because of your own choices and actions/inactions and that the original decision was correct and the appeal is not upheld.”

[13]      The only other document placed before the court at the first hearing, apart from those referred to above, was a document internal to the respondents and which was a two-page proforma “Housing Support Assessment” (comprising no 6/3 of process) (“the HS Assessment”).  In that document, which is dated  8 August 2013 and signed by the petitioner as well as on behalf of the respondents, the petitioner is assessed as “requires support” in respect of two matters: “HB, C/T & Rent”, and “Understanding of Tenancy & Tenancy Management”.  In no other area (out of a total of 10 areas) is the petitioner identified as requiring support.  It would appear that the HS Assessment could be signed in two ways: to signify acceptance of the support identified or, if, seemingly, support is refused or is assessed as not necessary, to the effect that the signatory does “not require assistance from Stirling Council, Housing Services with housing support at this time.  I am aware that I can access this service at any time in the future”.  Notwithstanding that the petitioner was assessed in the HS Assessment as requiring support in the two areas identified, the second form of signing was used.  Counsel for the respondents could not explain the apparent discrepancy.  However, nothing turns on the manner in which the HS Assessment  was signed off.  It is clear that the petitioner was assessed as needing, and was supplied with, certain assistance in relation to assumption by her of the tenancy of the rental property.  As it was also explained by the respondents’ counsel, had three or more areas of assistance been identified, a fuller package of support would have been provided to the petitioner.  This had not been the case, and she was supplied with the level of support identified. 

Petitioner’s submissions
[14]      The petitioner sought reduction of the Decision on three grounds, which are commendably concisely set out in statement 5 of the petition.  These are:

(i)         That there was no proper basis in fact to support a determination that the petitioner had made herself intentionally homeless without having secured alternative accommodation;

(ii)        That the Decision letter failed to take into account “properly and reasonably” the significant psychiatric history and ongoing treatment of the petitioner;  and

(iii)       That the Decision was Wednesbury unreasonable.

[15]      The petitioner’s counsel accepted that the author of the Decision letter had set out the correct test for determining intentionality of homelessness:  this is quoted in paragraph [9], above.  He also accepted that this was not a case of the petitioner being completely incapable of managing her affairs.  It was also not disputed that non-payment of rent, or non-payment of the shortfall, by the petitioner led to the loss of the tenancy of the rental property.

[16]      In setting a legal framework for his decisions, the petitioner’s counsel referred to the well-known passage of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, at 347 to 348.  The three grounds of challenge relied on in the petition corresponded to the last three categories of ultra vires decisions set out in that passage.  Without needing to go to any particular passage, he referred to the case of Kelly v Monklands DC 1986 SLT 169 as authority for the proposition that the test of Wednesbury unreasonableness was available in this statutory context, a contention that was not disputed.  Lastly, he referred to Holmes-Moorhouse v Richmond upon Thames LBC [2009] 1 WLR 413 for the observation of Lord Neuberger, at paragraph [50], enjoining a “benevolent” approach to be adopted by the courts when interpreting review decisions such as that under consideration.

[17]      Turning to the documentation, he noted the terms of support for which the petitioner was assessed in the HS Assessment, and which I have set out in paragraph [13] above.  From the CPN Letter he noted the passages I have set out in paragraphs [5] to [7] above.  While the involvement of the CPN in March or April 2014 post-dated the date of the accrual of the rent arrears by several months, his contention was that the court could in effect extrapolate back from that in terms of the mental health of the petitioner at the material time.  There was nothing, he said, in the CPN Letter to suggest that the mental health issues that had emerged in respect of the petitioner in 2006 had ceased to affect her.  Accordingly, the respondents had information about the petitioner’s long-term history of mental illness. 

[18]      In respect of the first ground of challenge, that there was no basis in fact for the respondents’ conclusion  that the petitioner had made herself intentionally homeless, he argued that the information before the respondents was two-fold: they had assessed her as unable to manage her financial affairs in the HS Assessment, and she had a long history of serious mental illness.  There was no other information available to the respondents that was contradictory to the terms of the CPN Letter.  Under reference to the end of the first paragraph  of the Decision letter (set out in paragraph [10] above), which is the only passage of the Decision he referred to in his submissions, the petitioner’s counsel argued that the summary of the evidence in that passage was not a fair reflection of the views expressed in the CPN Letter.  There was, therefore, no basis for the factual conclusion that the petitioner’s  conduct had the requisite quality of intentionality.

[19]      In respect of his second ground of challenge, the petitioner’s counsel argued that the decision failed to take into account “properly and reasonably” the significant  psychiatric history and ongoing treatment of the petitioner.  As was set out in the CPN Letter, while her involvement with Psychiatric Services did not commence until March or April 2014, one could not presume a rapid deterioration in the petitioner’s mental health.  The pattern could be similar to that in 2006.  She had had two compulsory mental health detentions in 2014.  Further, the respondents had not taken into account that two areas of support had been assessed in terms of the HS Assessment.  It was said that, even on a benevolent approach, the Decision letter failed properly to take into account these matters: the assessed need in  the HS Assessment and the seriousness of past mental illness, as referred to in the CPN Letter.  There had not been the appropriate balancing exercise.  For the same reasons, he contended that the decision was Wednesbury unreasonable.

Respondents’ submissions
[20]      The respondents’ counsel began by referring me to the statutory provision governing intentional homelessness, in section 26 of the Housing (Scotland) Act 1987 (“the Act”).  As it is accepted that the respondents applied the correct test, I do not need to set out the terms of section 26.  He also referred me to paragraph 7.8 of the Code of Guidance on Homelessness produced by the Scottish Government (“the Code”) and to which local authorities were directed to have regard when taking decisions under the Act, such as that under challenge.  Under the rubric, “Criteria for determining intentionality”, the second bullet point, states:

“The person concerned should have acted or failed to act in a way which that person knew could result in homelessness.  So, for example, a mentally ill person, or someone with learning disabilities, may well have been unlikely to have acted deliberately, and so should not be treated as intentionally homeless.  Similarly …”

In the light of that passage, the respondents accepted that, in considering whether conduct was “deliberate”, it was necessary to take into account any mental health illness that affected an applicant. 

[21]      However, he argued that the determination of whether by some conduct a person had become intentionally homeless was a judgement made by the local authority to whom Parliament had entrusted the taking of such decisions.  Further, it was not correct, as the petitioner’s counsel had contended, to read the original letter and the Decision letter “together”;  the latter superseded the former.  This was because the latter was, in effect, a decision taken de novo and in the light of the circumstances then prevailing.  This principle was well understood in this statutory context. 

[22]      He next turned to the case of Holmes-Moorhouse, cit supra, and in particular he cited the extended passage from paragraphs [45] to [47], and which was the fuller context to the passage quoted by the petitioner’s counsel of the benevolent approach to be taken by courts in interpreting review decisions.  (He noted, in passing, the observation of Lord Hoffmann at paragraph [26] of that case, that the opinions of Baroness Hale and Lord Neuberger’s should be “required reading” for courts considering inter alia appeals such as that in the Holmes-Moorhouse  case.)  He also referred to paragraph [51], to the effect that such a decision is not necessarily vitiated if an error is found in it, although he stepped back from any suggestion that there was an error in the Decision.  In short, if there was some substance to the petitioner’s criticisms, there remained sufficient in the material before the decision-taker to justify the conclusion reached in the Decision letter.

[23]      Finally, he referred to Hijazi v Kensington and Chelsea Royal LBC [2003] HLR 1113, a decision of the English Court of Appeal comprised of Mr Justice Judge and Lord Justice Dyson (as each then was).  So far as counsel’s researches disclosed, this was the only reported case whose facts bore any similarity to those in the instance case: of mental illness falling short of total incapacity, and where non-payment of rent led to eviction and to a determination of intentional homelessness under the Act.  The facts in Hijazi were more involved than in the instant case, and, in contrast to the position here, there had been  a number of medical reports detailing the mental state of the applicant in that case.  However, like the instance case, the applicant there had been evicted by reason of non-payment of rent and had been determined by the local authority to have been intentionally homeless.  In the impugned decision in that case there had been a complete failure to refer to a medical report that had been most supportive of the of the applicant , in terms of assessing his incapacity by reason of mental illness.

[24]      In upholding the decision of the respondents local authority, the Court of Appeal looked with real care at the different medical reports and the periods of time they covered.  While there had been a failure to have regard to the omitted medical report, that was of no materiality because it had not been addressed to the state of mind of the applicant at the material time.  The decision-taker had concluded that the applicant in that case was capable of managing his own affairs at the material time, and this was based on the fact that (i) the applicant had the requisite understanding and awareness of his responsibility to pay rent, (ii) the applicant’s mental state had not precluded him paying rent in the period shortly before the period of default, and (iii) that the applicant had had the support of his co-habiting partner.  These same factors were, it was said, present in the instant case.  The petitioner had initially paid the shortfall and discharged her rent obligations in respect of the rental property;  the respondents had concluded that she was capable of dealing with her financial affairs;  and there had been the support provided by the respondents’ housing services.

[25]      Turning to the Decision letter, it was apparent from its third paragraph (referred to above, at paragraph [8]), that the decision-taker was well aware that the basis on which review was sought of the first decision was the mental health issues of the petitioner.  It was significant that the petitioner had paid the shortfall for a full four months before she fell into arrears.  The critical period, against which her mental health had to be assessed, was that leading up to the issue of the NTQ;  not the subsequent period, as the petitioners counsel endeavoured to argue.  The petitioner’s counsel’s approach to the Decision letter had been highly selective.  Read as a whole, and benevolently (per Holmes-Moorhouse), it was clear that the decision-taker had taken into account all material factors and had not come to any unfounded factual conclusion.  As noted, in those paragraphs  of the Decision letter set out at paragraphs [10] and [12] above, the decision-taker expressly acknowledged the petitioner’s long-term mental health problems with periods of significant difficulty resulting in hospitalisation.  The decision-taker’s conclusion that the petitioner was able to manage her financial affairs was borne out by the factors set out in the four enumerated subparagraphs.

[26]      These matters tracked quite closely the factors that the court considered relevant in Hijazi.  In particular, the petitioner here understood the need to make payment of the rent, especially the shortfall;  the petitioner’s mental state in the period immediately before the default did not support a contention that it precluded her from paying the shortfall;  and, like the applicant in Hijazi, the petitioner also had support, albeit from a different source.  Indeed, it was argued that this case was a fortiori Hijazi, because the petitioner had more support in the instant case.  The author of the Decision letter had identified the correct issues;  she had recognised the seriousness of the petitioner’s condition and she had expressed the basis on which she was satisfied that at the relevant time the petitioner was capable of managing her affairs.

[27]      In reply to the specific criticism made by the petitioner, it was not correct to suggest that there was no factual basis to support the Decision.  Even if there was some force in the petitioner’s criticisms, the author of the Decision letter had set out the basis upon which she had concluded that the petitioner was capable of managing her own affairs at the relevant time.  In respect of the petitioner’s reliance on the HS Assessment, that document was not an identification of impairment;  but simply a means to identify if support was necessary.  The petitioner’s approach was not a benevolent one.  It was not correct to infer from the HS Assessment, as the petitioner appeared to do, that the petitioner had been found to be incapable.  She was capable, with support.  It was not a relevant ground of challenge to say that something had not been “properly” taken into account.  This was just another way of saying that the decision-taker should have given different weight to a factor, and that was not a permissible ground of judicial review.  The challenge on the basis of Wednesbury unreasonableness did not add anything.  The petition should be refused, and the respondents’ third and first pleas-in-law sustained.

Petitioner’s reply
[28]      The petitioner’s counsel’s reply was brief.  In respect of the Hijazi case, each case was fact-sensitive, and no set of facts in case dictated the outcome in another.  Further, the Decision letter in Hijazi was very detailed.  By contrast, the Decision letter was superficial.  There was not a sufficient basis to entitle the author of the Decision letter to make a finding that the petitioner was intentionally homeless.  The petitioner’s counsel accepted that, in contrast to the position in Hijazi, there was no medical assessment of the mental health of the petitioner at the material time. 

[29]      The petitioner’s counsel did not comment on the Code or refer me to any other part of the Decision letter or to any documentation produced in process. 

Discussion and Decision
[30]      In relation to the first ground of challenge, the petitioner argues that there is no proper basis in fact for the respondents to have concluded that the petitioner was intentionally homeless.  As it was put in statement 5 of the petition, it was said that in the light of the petitioner’s psychiatric history, the petitioner  had “little if any capacity to manage her financial affairs properly” and that this “inability” was known to the respondents.  However, in submission, it was accepted that the petitioner’s case was not one of total or complete incapacity. 

[31]      In terms of the guidance in the Code, it is acknowledged that a person suffering from mental illness may be unlikely to have acted deliberately.  In other words,  mental illness might deprive that person of the ability to act deliberately or with purpose in a way relevant to the intentionality test in section 26 of the Act.  Notwithstanding what the petitioner’s counsel said under reference to those passages of the CPN Letter detailing the petitioner’s mental health difficulties in 2006, there was no medical assessment that would evidence her suffering from mental illness at the material time. 

[32]      On the basis of the HS Assessment it was contended that the petitioner was assessed as “incapable” of managing her financial affairs.  However,  I accept the respondents’ counsel’s submission that this is to misunderstand the purpose of a short proforma HS Assessment and to place a weight on it that it cannot bear.  That document did no more than identify the kinds of support that the petitioner was assessed as needing in order to manage her obligations in respect of the tenancy of the rental property.  The respondents subsequently supplied the desiderated support.  There is no challenge to that assessment or to the level of support supplied by the respondents to the petitioner.  It was not suggested she was incapable at the time she assumed the tenancy of the rental property.

[33]      The only passage of the Decision letter the petitioner’s counsel referred to was the single sentence referencing the CPN Letter.  Even if the sentence criticised is not the most accurate summary of the import of the CPN Letter, the fact is that the author of the Decision letter did not preclude herself from continuing to address the relevant question namely, whether the petitioner could act deliberately, that is with the requisite degree of intentionality, such that any failure on her part (by failing to pay the shortfall) which led to the loss of her tenancy would justify a finding of intentional homelessness.  The author of the Decision letter plainly did go onto consider these matters in the following paragraphs of the Decision letter, and which are quoted at paragraphs [10] and [12], above.  As against the acknowledged history of mental health illness of the petitioner, the author of the Decision letter weighed the other factors, as enumerated by her.  These included the fact of the petitioner having and operating a bank account, and into which benefits were paid;  other conduct instructing the petitioner’s understanding of the need to pay rent/accommodation costs, and the reasonable inference that the petitioner had discharged her obligation as tenant of the rental property in a sufficiently satisfactory manner that the landlord was content for the tenancy to be continued by tacit relocation in the month before the NTQ was served.  In the light of these factors, it cannot be said that the decision-taker had no basis of fact from which the requisite intentionality could be found.  More properly, as this was an assessment of matters of fact vested by parliament in the decision-taker, it cannot be said to be one that no reasonable decision-taker properly directing itself as to its task and on the basis of the material before it, could have reached. 

[34]      In relation to the second ground of challenge, I agree with the respondents’ counsel’s submission that this ground amounts to no more than a complaint that the decision-taker did not give certain factors the weight that the petitioner would have wished.  This is not a permissible ground of judicial review of administrative decision-taking.  Once there is relevant material before a decision-taker, the weight to attach to it is a matter for it to assess.  It is not enough to say another decision would have been reached.  Even if the decision-taker’s assessment of the factual material is open to criticism, that may amount to no more than an intra vires error.  Putting it another way, any such error would not be an error of law rendering the decision susceptible to judicial review, unless it can be shown that the decision-taker misapprehended a potentially decisive element of the evidence on material before it.  That is not the case here.

[34]      Other than to assert that the Decision was Wednesbury unreasonable, no more analysis or argument was offered to support this ground.  Whether the court is applying the formulation in Wednesbury, or any more recent formulation of that (such as perversity) it is a very high test.  Given that I have found that there was material before the decision-taker on the basis of which a finding of fact of intentionality could be made, it cannot be said that the decision was anything approach Wednesbury unreasonable or perverse. 

[35]      I shall accordingly repel the petitioner’s pleas in law, uphold the first and third pleas-in-law for the respondents and refuse the petition.  I shall reserve the questions of expenses meantime.