London Borough of Enfield v Kruja

J U D G M E N T

Friday, 5th November 2004

1. LORD JUSTICE LAWS: This is the local housing authority's appeal with permission granted by Rix LJ on 6th July 2004 against the decision of His Honour Judge Cotran given on 5th March 2004 in the Edmonton County Court, sitting at Shoreditch, when he allowed the respondent's appeal under section 204 of the Housing Act 1996 and quashed a review decision made by the appellant under section 202 of the 1996 Act.

2. The respondent, his wife and son are nationals of Kosovo who have been granted asylum and enjoy indefinite leave to remain in the United Kingdom. On 17th April 2003 the respondent applied to the appellant authority on behalf of himself and his family for accommodation or assistance as homeless persons. That was, of course, under the provisions contained in Part VII of the 1996 Act. In barest outline a local housing authority is, by section 193 of the Act, obliged to secure that accommodation is available for an applicant who they are satisfied is homeless, eligible for assistance and has a priority need.

3. Section 189(1) provides in part:

"The following have a priority need for accommodation -

...

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

4. On 3rd June 2003 the appellant issued a decision letter indicating that they found the family to be homeless but there was no priority need under section 189. The letter included this:

"We have had special regard to whether your 21 year old son, Mr Dritan Kruja in particular is 'vulnerable' as a result of a mental illness..."

5. Then over the page:

"We have considered the information supplied by Dr Scurlock (Consultant Psychiatrist) on your behalf in relation to your various health problems. On advice of the council's Mental Health Panel that convened on 2 June 2003, it is our opinion that despite his admission to hospital regarding his post-traumatic stress disorder, Mr Dritan Kruja is not vulnerable. He is at no more risk of harm or detriment than anyone else in the event that he becomes homeless and is no less capable of finding or maintaining accommodation. His medical needs are minimal according to the report submitted as he 'does not suffer from a mental illness'. Furthermore the report goes on to state that 'Mr Kruja (Dritan) was discharged without medication and with no out-patient appointment arranged'. Dritan also is ably supported by his parents."

6. There is then reference to a claim that Mrs Kruja was depressed, although it was noted that she had not found it necessary, seemingly, at that stage, to seek medical attention.

7. The respondent's solicitors sought a review pursuant to section 202 of the 1996 Act. That provides, so far as material:

"(1) An applicant has the right to request a review of -

...

(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193..."

8. Subsection (4) reads:

"On a request being duly made to them, the authority or authorities concerned shall review their decision."

9. The review decision was issued on 13th October 2003. Among the material stated to have been taken into account was medical evidence from the respondent's GP and psychiatrist, an opinion from the medical assessment officer, and an opinion from the Mental Health Panel.

10. I must set out the substance of the decision:

"Your request for review was based on the following:

•Mr Kruja has backache and painful knee joints and is 59 years old.

•Mrs Kruja has post traumatic stress and depression.

•Mr D Kruja has serious psychiatric problems.

•You maintain that your family has a lesser ability to fend for itself in a housing context, if homeless.

The panel had particular consideration of the following:

1) Shemsi Kruja :

The GP's reports (6/8/03 & 2/7/03) which outlines your ailments of backache, painful knees/legs due to osteoarthritis and possible lumber spondylosis. This causes some difficulties in walking long distances and climbing stairs. The report states that you are taking analgesics to aid sleeping but that you manage the activities of daily living satisfactorily.

That Shemsi is 59 years old.

Remzi Kruja :

The GP's report (2/7/03 & 3/9/03) which states that you are suffering post traumatic stress and depression following a sexual assault in Kosovo. You are receiving counselling and anti-depressant medication.

Dritan Kruja:

The GP's report (2/5/03) and the psychiatric report (25/2/03) from Dr Blaj, which outlines the symptoms of post traumatic stress disorder. The symptoms developed following experiences in Kosovo which included witnessing a sexual assault on Remzi (mother).

There was an admission to Chase Farm hospital for 6 days in February 2003 after being taken into police custody. He described symptoms of vivid memories, sleeplessness, nightmares, and agitation. There were also outbursts of anger on the ward and there was a positive blood test for cannabis.

The diagnosis was that there was no evidence of psychotic disturbance or mood disorder and it was felt that he did not suffer from a mental illness. He was referred to the Post Traumatic Stress Disorder Clinic for outpatient treatment.

In addition there was a psychiatric report from Dr Moorey (7/7/03) prepared at the request of the probation service. The opinion was that Dritan suffers severe PTSD and depression and that he needs treatment through the PTSD Clinic.

2) The council's Medical Assessment Officer recommended that the case be referred to the Mental Health Assessment Panel.

3) The council's Mental Health Assessment Panel considered your case on 2/6/03, 15/9/03 and 30/9/03. The panel comprises Housing Managers and Mental Health professionals. They have considerable experience of assessing cases where there are borderline mental health issues, involving depression and post traumatic stress. The panel looked at the above medical evidence and considered the symptoms described of post traumatic stress.

On 2/6/03 the panel considered the evidence relating to Dritan and noted that he was not suffering from mental illness and concluded that he was not considered vulnerable.

The second panel had regard to Remzi's medical evidence and noted that she was not receiving services from the Community Mental Health Team or hospital and did not meet the criteria for being vulnerable on mental health grounds.

The last panel on 30/9/03 considered the psychiatric report from Dr Moorey. The panel accepted the diagnosis of PTSD but noted that the condition had not worsened since the last panel and that no medication was being taken.

The Mental Health Assessment Panel did not support a finding of vulnerability on mental health grounds.

The panel considered that you as a family have suffered ill-treatment and trauma whilst in Kosovo. The medical evidence suggests strong symptoms of post traumatic stress (in Dritan's case) and depression (in Remzi's case) linked to your previous experiences. These are unfortunately, very common conditions in many people who approach this service for assistance. Dritan is continuing to receive treatment from the PTSD Clinic and Remzi is getting counselling and anti-depressant medication. This panel has agreed with the Mental Health Assessment Panel that the family are not vulnerable on the grounds of mental health. Shemsi is 59 years old but that is 6 years off pension age. Accepting that he has osteoarthritis of the knees, it is not a disabling condition and not unusual in a person of that age. He is able to walk and is still relatively mobile.

The conclusion is that on the basis of all the evidence available, we council cannot conclude that you, as a family, 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 injury or detriment, in circumstances where a less vulnerable person would be able to cope without harmful effects.

The council has no duty to accommodate you."

11. The respondent lodged a statutory appeal in the County Court pursuant to section 204 of the 1996 Act. That provides, so far as is relevant:

"If an applicant who has requested a review under section 202 -

(a) is dissatisfied with the decision on the review...

He may appeal to the county court on any point of law arising from the decision..."

12. Subsection (3) reads:

"On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."

13. So it was that the matter came before His Honour Judge Cotran on 5th March 2004. The judge recited the report of Dr Helen Moorey (consultant psychiatrist) which had been prepared at the request of Dritan Kruja's probation officer. He was, it seems, facing criminal proceedings at the time. As is plain from the decision letter, which I have set out, this report had been before the appellant's review panel. Dr Moorey concluded that Dritan Kruja was suffering from severe post-traumatic stress disorder and a concurrent depressive illness. She referred to his treatment, consisting of psychotherapy, and states that she had recommended a course of antidepressant medication.

14. The judge also referred briefly to reports concerning the respondent himself and his wife. Then he said this at paragraph 25:

"Only one point is taken in this appeal, and that is that this conclusion, on all the evidence available, is Wednesbury unreasonable. I fully agree. This decision is Wednesbury unreasonable for two principal reasons. The first reason is that under the Act there is no necessity to have a mental illness as such. It is, as I have said before, based on s.189 subsection (c), which says 'a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason or with whom such a person resides or might reasonably be expected to reside'. Here we have a situation where the mother is not suffering from mental illness, but certainly has, on all the evidence available, a mental handicap or a mental disability. We have a situation where a psychiatrist says the son is mentally disturbed and has a mental illness and has been in a mental hospital, sectioned at one stage but has been released, and was during the interview mentally disturbed and recommended for PTSD treatment. We have a situation where the father, whether one calls him old or not at the age of 59, is physically disabled. On that evidence it is trite law that one must look not at one person or two persons, but at the family as a whole."

15. The judge then proceeded to refer to the authority of ex parte O'Hara and with respect I need not take time with that. I may proceed to paragraph 27:

"Mr David Lintott, who appears for the respondent, argues strenuously that the question of vulnerability is ultimately for the Council to decide, and they considered everything and they came to the conclusion which they did, and the cases show that essentially it is a matter for them. That of course I accept, but it must be based on the evidence which is before them and it must not be Wednesbury unreasonable. He accepts that if it is perverse, then it must be quashed. I have already said that I have come to the definite conclusion that it is perverse. In fact, I can safely say that where you have a situation where the evidence all goes one way, it is quite impossible for any person, properly directing himself, to come to the conclusion that this officer, Mr Harris, came to. For those reasons this decision is quashed and the appeal succeeds."

16. It is clear that in the course of arriving at that conclusion (see paragraph 26) the judge expressed the firm conclusion that one member of the family has a mental illness. That was a reference to the grown-up son Dritan Kruja.

17. The appellant's case on appeal to this court may be encapsulated in these propositions: (1) The judge usurped the authority's fact finding role. The court under section 204 conducts what is no more nor less than a statutory judicial review (see Nipa Begum v Tower Hamlets [2000] 1 WLR 306); (2) the judge misdescribed the evidence. He stated the evidence was all one way, in effect holding that there was no evidence on which a decision-maker could hold that Dritan Kruja was not suffering from a mental illness. It is said that there was such evidence, the report of Dr Blaj of 25th February 2003 which was before the review panel. (3) If, contrary to the appellant's principal submissions, the judge was entitled to hold that the appellant's decision that Dritan Kruja did not suffer from a mental illness was perverse, he should have, but failed to, consider whether the appellant had been wrong in law to conclude that the Kruja family were no less able to fend for themselves than an ordinary homeless family so that injury or detriment to them would result when a less vulnerable family would be able to cope without harmful effects. That is the test for vulnerability propounded by Hobhouse LJ, as he then was, in Pereira [1998] 31 HLR 317 at 330.

18. I find it convenient to deal with the second proposition first. In my judgment it is well-founded. The judge was quite wrong to hold that the evidence was all one way in relation to the issue whether the son suffered from a mental illness or not. In his report of 25th February 2003 the consultant psychiatrist Dr Blaj said this:

"He displayed outbursts of anger on the ward. Complained of 'bad memories' regarding the traumatic events in Kosovo and described hearing night 'voices' and vivid noise connected to his traumatic experiences in Kosovo. During this admission there was no evidence of psychotic disturbance or mood disorder. He settled quickly on the ward and during the subsequent ward round, when he was seen by Dr Scurlock on 12th February 2003, it was felt that Mr Kruja did not suffer from a mental illness and, therefore, he was discharged from Section 2 and discharged from hospital."

19. In the next paragraph:

"Mr Kruja was discharged with no medication and with no outpatient appointment arranged. Dr Scurlock has advised a referral to the PTSD Clinic."

20. On the question whether Dritan Kruja suffered from a mental illness, this was plainly relevant and it may be thought powerful evidence. It was simply not right to say that all the evidence went one way. That ignores this piece of material which was before the review panel, who referred to it and clearly took it into account.

21. I turn then to the first proposition. Plainly, if the County Court conducting a statutory judicial review under section 204 of the 1996 Act is confronted by a true case of perversity in the review decision that is an elementary error of law and the County Court has ample jurisdiction to correct it. Although His Honour Judge Cotran categorised the case as of one of perversity, in my judgment he was not entitled to do so.

22. As I have indicated, there was evidence that Dritan Kruja was not mentally ill. There is, moreover, not the slightest inaccuracy in the reasoning of the review panel set out in the decision letter of 30th October 2003, which I have read, when set alongside the primary documents, not least the medical reports to which Mr Okai has understandably made considerable reference this morning. The reality is that the judge has simply formed his own view that Dritan Kruja was mentally ill. That was, in my view, in excess of his statutory jurisdiction.

23. I have looked again at the review panel decision in light of Mr Okai's submissions this morning that it is in any event flawed, not least because, as he submits, the panel should have considered in the round whether the family was vulnerable for other special reasons within section 189(1)(c). In my judgment it is plain from the passage that I have read that the panel was responding, and responding fully, to the way the case was being put on behalf of the family. Some might consider the decision a harsh one. Some decision-makers might have arrived at a different conclusion. It is elementary that matters of that kind were not for the judge, nor are they for us.

24. Those conclusions are enough to make good this appeal which I would accordingly allow. There is, however, a further point represented by the third proposition which I set out earlier. The judge seems to have given no consideration at all to the test for vulnerability as it was articulated by Hobhouse LJ in Pereira . By contrast the review panel expressly applied that test. It seems to me that although in terms of reasons for allowing this appeal this point may be said to be the fifth wheel of the coach, it is nevertheless important to recognise that the review panel indeed directed themselves correctly according to the law.

25. In short there was no legal basis here upon which the judge could properly have overturned the review panel's decision. As I have said, I would, for my part, allow the appeal.

26. SIR MARTIN NOURSE: I agree.

27. LORD JUSTICE PILL: I also agree.

ORDER: application allowed; costs order for appellant under section 11(1) of the Access to Justice Act 1999.