Crossley v City of Westminster

In this appeal, brought by permission of Neuberger LJ, Westminster City Council seeks to overset the judgment of HH Judge Collins CBE at Central London County Court on 28 April 2005. By his judgment Judge Collins allowed the appeal of Stephen Crossley against the refusal of Westminster to treat him as in priority need of housing. He quashed the council’s decision, taken following an internal statutory review on 7 January 2005, with the result that Westminster was obliged to retake it.

The jurisdiction the judge was exercising was the jurisdiction created by s.204 of the Housing Act 1996, empowering him to intervene if, and only if, the decision of the local authority was erroneous in law. Error of law in this context includes any error susceptible of judicial review: Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306.

The basis of this appeal is that there was no such error, and that in its absence the judge was not entitled to prefer his appraisal of the facts to that of the reviewing officer. In addition, Clive Jones, counsel for the City of Westminster, in reliance on the decision of this court in R v Waveney DC, ex p Bowers [1983] 1 QB 238, submitted in his skeleton argument that as a matter of legal policy drug abuse should be treated like drunkenness and any consequent vulnerability be regarded as self-induced. This proposition has not, however, formed any part of his oral submissions.

Mr Crossley, who is now 36, grew up from the age of 3 in local authority care, emerging, as the judge put it, “without any ability to organise any ordinarily acceptable kind of life”. He has since the age of 17 lived rough on the streets of central London, with spells in short-term hostels and in prison. He is chronically depressed, suffers from mild asthma and hepatitis C, and has since the age of 13 been addicted to hard drugs, principally heroin.

Mr Crossley has, however, sought help, and the help has to an extent been effective. The Hungerford North drugs project, run by the charity Turning Point, had reported to Westminster on 11 October 2004:

“…..

Mr Crossley has been a client of our organisation for in excess of 15 years. Throughout the vast majority of that time he has lived on the streets of Soho or in short term hostels. Throughout the course of this time his self-care has been extremely poor, and his mental state has often been a cause for concern. We have, one one occasion, had to resuscitate and hospitalise him after he took a life-threatening heroin overdose. Mr Crossley is subject to intense depression following a difficult upbringing and a serious assault he underwent a few years ago, and has throughout this period, wrestled with a severe and enduring addiction to heroin and crack cocaine.

Since he was temporarily housed we have noticed a significant upturn in Mr Crossley’s engagement with services, and are pleased that he now regularly receives methadone maintenance treatment, and has largely broken his ties to the street-drug scene. He remains severely depressed, but has recently with our and the Caravan’s help, sought specialist counselling services with a view to beginning to address the causes of his long-term mental ill-health, and we are hopeful that, if this trend continues, he stands a fair chance of finally beginning to build on his recent progress and perhaps moving forward toward a steadier state of mind which may enable him to undertake independent living eventually. We would be concerned at the prospect of Mr Crossley losing access to housing at this stage, as it is our belief that it has played a vital role in enabling him to begin to move tentatively forward, and the recent beginning of counselling will, we think, render him vulnerable to relapse in the near future if his current support network is weakened by a return to the street-scene.

….”

A medical practitioner at the local NHS Trust Drug Treatment Centre, who had last seen him in July 2004, recorded on Westminster’s medical assessment questionnaire that Mr Crossley was now on a supervised drug replacement regime. Since he considered that the depression, manifested in “self-neglect and self-isolation”, was probably secondary to the drug dependency, he gave it as his view that the condition of drug dependency might improve (he underlined the word “may”) “if social circumstances are ameliorated”. To the question “Are there physical/mental health reasons, which prevent your patient finding and keeping his/her own accommodation?” he answered “Possibly the above diagnosis”. To the pro-forma question whether the patient’s health problems made him, when homeless, “less able to fend … more than an ordinary person” – a double comparative not warranted by either statute or case-law – the doctor answered “Yes, quite vulnerable with personal difficulties in dealing with authority.”

The medical evidence was unanimous that Mr Crossley presented no appreciable threat of self-harm or of harm to others. By self-harm, of course, was meant suicide or self-mutilation; but nobody can have doubted that Mr Crossley’s drug habit was extremely harmful to him both physically and mentally.

There was a letter from Anita Hobbs of the Caravan Project (a therapeutic project run from St Mary’s Hospital, Paddington) dated 2 August 2004 and recording that Mr Crossley was attending daily “for support relating to his substance misuse” and for hepatitis treatment. Ms Hobbs went on:

“My client is currently 9 weeks abstinent from all street illicit drugs and is receiving treatment for depression and methadone maintenance at the Westminster Treatment Team in Paddington….

It is my professional opinion that Mr Crossley would benefit immensely from secure independent housing to further support and facilitate his recovery.”

It was on the day this letter was written that Mr Crossley was provided with temporary accommodation by Westminster. It followed that his progress with the Caravan Project had been made while he was still living on the streets.

The council also had the report of Dr Hickey dated 12 October 2004 which, after tabulating the recorded medical history, said this:

“….

Mr Crossley is a 34 year old unemployed man with as long history of drug dependency which began at the age of 13. He has a very poor family background of violence and alcoholism and appears to have known little affection and support in his youth. It is not surprising that he drifted into substance misuse and criminal activities and has spent much time in prison. It is very encouraging that he is presently drug-free and he is to be applauded for returning to treatment despite his lapses. I believe he is a vulnerable man, suffering from depression which is very likely to deteriorate if he is roofless. Hepatitis C needs to be further investigated and may adversely affect his health. It is also predictable that he will lapse into substance abuse if he does not have accommodation and adequate support.

….”

Westminster’s Joint Assessment Service interviewed Mr Crossley and reported upon his mental state. Its reasoned conclusion was that he was “not vulnerable because of mental illness” and that “drug misuse appears prominent and … depressive symptoms are secondary to his situation”. The council also had its own assessment made of his physical condition, again with negative results.

The judge noted - although this information was not before the reviewing officer - that Mr Crossley had apparently relapsed, exactly as predicted, into drug abuse after being required to leave his temporary council accommodation in mid-October 2004. A spell in hospital for treatment to a consequent abscess had, however, been followed by temporary accommodation funded by Thames Outreach. Mr Crossley’s future at the date of the appeal was thus on a knife-edge, and it is in some ways unfortunate that the judge was put under the pressure it created. For completeness, nevertheless, we have been told by counsel that following Judge Collins’ decision Mr Crossley was provided with hostel accommodation by Westminster. He left it after about three weeks and returned to the streets. Since then he has been assisted by a street outreach worker to obtain shelter in a St Mungo’s hostel in Hackney, where he still is but cannot remain indefinitely.

Section 184 of the Housing Act 1996 requires a local authority to make “such inquiries as are necessary” to ascertain the nature and extent of any duty they may owe to an apparently homeless person. The question in relation to Mr Crossley was whether he was in priority need. S.189(1)(c) includes in this class “a person who is vulnerable as a result of old age, mental illness or  handicap or physical disability or other special reason”. The last of these is a freestanding category unconstrained by the classes which precede it, but requiring proof of particular difficulties graver than are ordinarily faced by homeless persons: R v Kensington and Chelsea RBC, ex p Kihara (1997) 29 HLR 147, CA. In addition, by virtue of the Homelessness (Priority Need for Accommodation) (England) Order 2002, the class includes persons who have been “looked after, accommodated or fostered” – as Mr Crossley is agreed for this purpose to have been – and who, if over 21, are vulnerable as a result.

In deciding on vulnerability for special reasons the local authority “must consider whether [the applicant] is, when homeless, 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”: R v Camden LBC, ex p  Pereira (1998) 31 HLR 317, per Hobhouse LJ. Such a comparison is, as Auld LJ pointed out in Osmani v Camden LBC [2004] EWCA Civ 1706, [2005] HLR 22, necessarily imprecise and highly judgmental.

Jan Luba QC, for Mr Crossley, does not contend that a recovering drug addict at risk of relapse is necessarily (that is, as a matter of law) “vulnerable as a result of … [a] special reason”. Mr Jones for his part no longer contends that such a person cannot fall within this class. We accept and endorse both propositions; but they create what Mr Jones has called a grey area within which a decision may legitimately go either way. Accepting this too, as we do, it means in our view that judgments within the grey area, if they are not to be arbitrary, have to be made with especially careful regard for the statutory criteria and purposes and conscientious attention to the evidence.

Two aspects of this obligation are highlighted by the present case. One is that what has to decided is a single composite question: see R v Camden LBC , ex p Pereira (1998) 31 HLR 317, 330. It is not, in other words, a progression from vulnerability to its cause but an appraisal of whether the applicant’s condition, so far as it comes within the prescribed classes, makes him vulnerable. Here, for example, it fell for consideration whether not only his condition as a recovering addict but his experiences as a child in care made Mr Crossley vulnerable.

Secondly, although the decision letter nowhere mentions it, there is a Code of Guidance to which decision-makers are required by s.182 to have regard. In the main it is a helpful synthesis of statutory provision and case-law, but in places it goes further. In relation to persons who have been in care it says:

“8.19

Housing authorities will need to make enquires into an applicant’s childhood history to establish whether he or she had been looked after, accommodated or fostered in any of these ways. If so, they will need to consider whether he or she is vulnerable as a result. In determining whether there is vulnerability (as set out in paragraph 8.13, above), factors that a housing authority may wish to consider are:

i)

the length of time that the applicant was looked after, accommodated or fostered;

ii)

the length of time since the applicant was looked after, accommodated or fostered, and whether the applicant had been able to obtain and/or maintain accommodation during any of that period;

iii)

whether the applicant has any existing support networks, particularly by way of family, friends or mentor.”

In relation to the category of “other special reason” it says:

“8.28

Section 189(1)(c) provides that a person has a priority need for accommodation if he or she is vulnerable for an “other special reason”. A person with whom such a vulnerable person normally lives or might reasonably be expected to live also has a priority need. The legislation envisages that vulnerability can arise because of factors that are not expressly provided for in statute. It does not permit housing authorities to predetermine that some groups can never be considered vulnerable for an “other special reason”. Each application must be considered in the light of the facts and circumstances of the case. Moreover, other special reasons giving rise to vulnerability are not restricted to the physical or mental characteristics of a person. Other special reasons may include a combination of factors and circumstances that render a person less able than others to fend for him or herself when homeless. Where applicants have a need for support but have no family or friends on whom they can depend they may be vulnerable as a result of an other special reason.”

In the review process which followed the council’s initial refusal of priority needs status, Mr Crossley was competently represented by solicitors, Gillian Radford and Co, acting under the Legal Help Scheme. The review decision is contained in a letter which needs to be read in full and is annexed to this judgment, with paragraph numbers added for ease of reference. Taking it as read, we turn directly to Judge Collins’ judgment.

The judge said:

“The reviewing officer appears to have compressed the information that the appellant’s drug abstinence was of comparatively short duration, in the context of a clear medical history of constant relapsing, into an unqualified statement that the appellant has remained abstinent from all illicit street drugs. In my judgment that is a misleading compression.”

He went on to note the passage of the decision letter (§6) which acknowledged the upturn in Mr Crossley’s engagement with the support services since he was temporarily housed – that is, since 2 August 2004 - but which continued:

“I am not satisfied that if you were to continue to be homeless you would not be able to continue to receive treatment and support …I am satisfied that you would be able to continue to remain abstinent from illicit drugs.”

The judge’s view about this was unequivocal:

“I am bound to say it does not seem to me that there was any material upon which the reviewing officer could sensibly come to such a confident statement about the future. If he had said ‘I am satisfied that there is a reasonable chance or a worthwhile chance of your being able to remain abstinent from illicit drugs’, one would not have quarrelled. But the confidence with which the reviewing officer expresses himself is, in my judgment, simply not justified by any material whatsoever.”

The compression of the evidence, foreshortening as it did the evidence of an ongoing risk of relapse, in the judge’s view vitiated the reviewing officer’s conclusion that there was no ‘special reason’ bringing Mr Crossley within the statutory class.

One can see why the judge balked at this aspect of the decision letter. It put the applicant in a lose-lose situation. If it was to be shown that his vulnerability could be addressed by housing, evidence was needed that he was capable of responding to therapeutic support. But, since he was inevitably at that point of time homeless, any such evidence would suggest that he did not need housing in order to respond to help. When the judge called the analysis ‘compressed’, what he evidently had in mind was that it was one thing to take a sanguine view of Mr Crossley’s chances at the date of the Caravan Project letter and the grant of temporary accommodation, 2 August 2004, but quite another to infer that it would continue to be so when (as happened in mid-October 2004) the temporary accommodation was withdrawn. Yet the decision letter, drafted in mid-December 2004 and rewritten in early January 2005, not only fails to draw the distinction; it says: “despite being homeless you have remained abstinent from all street illicit drugs”. Irrespective of the late (and inadmissible) evidence that a relapse had in fact occurred following the loss of housing, the judge considered that the most that could be said, on the evidence, was that what would happen was uncertain.

But, as the judge recognised, the decision letter sought to guard itself against this criticism. It went on to say (§7):

“Even if you did recommence using illicit drugs and continue to abuse alcohol I am not satisfied that it would make you less able to fend so that you would suffer injury or detriment greater than an ordinary homeless person.”

Although this contingent finding might otherwise have shielded the decision-maker’s conclusion, it too depended on the ‘compression’ of facts identified by the judge. The most that could legitimately be said at the point of review was that the prospects of continued recovery – over what was inevitably going to be a prolonged period - were uncertain if Mr Crossley were back on the streets; and even this might have been attacked as over-sanguine in the light of such evidence as that of Dr Hickey.

As to the evidential basis of the reviewing officer’s conclusion about sorting out benefits and managing his own affairs, the judge expressed surprise in the light of the apparently uncontested evidence, contained in Mr Crossley’s solicitor’s letter of 8 October 2004, that he had survived only by begging because he did not understand how to claim benefits and depended on help in obtaining them. In the light of this the judge considered the finding irrational – meaning, in its context, that it lacked any evidential basis. He took much the same view of the finding that “despite your being in care, you have shown to be able to fend for yourself”. In the light of a history of having gone from local authority care to the streets, “wholly incapable of being able to cope with the ordinary requirements of life”, the judge found the conclusion “staggering”.

Mr Jones submits that, whether or not the judge agreed with them, these findings were properly open to the reviewing officer in the light both of the known history and of the events between the application and the decision, including the keeping of appointments and the support and assistance available to Mr Crossley. He reminds us of how “judgmental” the local authority’s decision necessarily is. Mr Luba responds that even a judgmental decision has to be founded on properly appraised facts.

The judge summarised his decision in this way:

“24.

In conclusion, he would be likely to be less able to look after his physical health than an ordinary homeless person so that injury or detriment in the terms of increased drug addiction, possible infection, possible suicide, possible risks of death from overdoses would result, when a less vulnerable man would be able to cope without having those harmful effects. It seems to me that in coming to a contrary view the reviewing officer was Wednesday [sic] unreasonable and perverse in his assessment of the facts. Alternatively on a narrower basis, that it was a central question in the case which he did not seriously engage with at all.”

It is ordinarily implicit in a true perversity finding that only a contrary decision was rationally possible. That this was not such a case is demonstrated by the fact that the judge remitted the case for reconsideration. Mr Luba accepts as much. It follows that if the judgment is defensible, it is on the judge’s alternative ground that a central question had not been engaged with in the decision letter. That central question was, in the judge’s view, whether the specific possibility of relapse and the wider inability of the claimant to cope, which had been treated separately in the decision letter, were in truth two sides of a single coin to which not merely insufficient weight but barely any attention had been given.

The principal basis of the claim was that Mr Crossley was vulnerable for some ‘special reason’ within the statute. Yet the decision letter does not deal with special reasons for vulnerability until §13, which simply says:

“Further to this, taking into account your social, financial, medical and housing circumstances together I am not satisfied that you are vulnerable for a special reason.”

We are prepared to accept Mr Jones’ submission that this has to be read as a drawing together of the preceding paragraphs, which deal with vulnerability in the context of drug use (§6-7), mental health (§8), ability to cope (§9)and having been in care (§11) and in prison (§12). But Mr Luba points out, as the judge did, that these passages themselves overlook material evidence. Thus in §6, which contains the most material findings, the history of repeated relapses after partial recovery, support notwithstanding, is left out of account in reaching a conclusion that, given support, Mr Crossley will be able to stay off drugs without being housed.

Mr Luba’s other main target is the formulation variously seen in §9, §11 and §12: that Mr Crossley has proved able to apply for housing and benefits, to engage with services and to manage his own affairs. In so deciding, Mr Luba submits, the contrary evidence has been almost entirely overlooked. Thus, far from being able to seek accommodation, much less obtain it, Mr Crossley had been sleeping on the streets for 16 years with only occasional hostel accommodation. The only application for secure housing was the one the council had before it, which Mr Crossley had made with professional support. Because he had no National Insurance number Mr Crossley had been unable to access many benefits and has lived chiefly by begging. He was receiving no benefits at the time of the application and had run up a large rent debt in his temporary council accommodation because he had failed to obtain housing benefit. As to managing his own affairs, Mr Luba asks rhetorically where this is apparent.

In our judgment these are well-founded points. Although there may have been, as Mr Jones submits there were, indicators in the evidence which pointed towards the decision-maker’s eventual conclusion, there were also stark facts, or appraisals of fact, pointing towards vulnerability for a statutorily recognised reason; and these the decision-maker had an obligation to acknowledge, take into account and evaluate along with everything else. In this, for the reasons discussed above, he partly failed.

This is enough to sustain the judge’s decision that the case must be reconsidered. In reconsidering it, for reasons mentioned earlier in this judgment it will be necessary for the decision-maker to consider whether Mr Crossley’s having been in care is also a cause of vulnerability. While we do not need to decide whether the conclusion set out in §11 of the decision letter is legally erroneous otherwise than for its failure to take material facts into account, drug addiction cannot necessarily be regarded as the sole cause of vulnerability here. There is on the evidence a live question whether Mr Crossley’s introduction at the age of 13 to hard drugs had to do with his period in care and, if so, whether his present state is at least in part a continuing consequence of this.

Neither the present care-based claim nor the special reasons claim engages the difficult questions of legal and public policy which surround self-induced mental and physical states. It is no doubt for this reason that Mr Jones has not pursued the issue. Plainly drug addiction by itself, for all its personal and social consequences, cannot amount to a special reason for vulnerability which is capable of being addressed by housing. If there was a special reason here, it began with the fact that Mr Crossley, as a recovering addict, was vulnerable to relapse if he had to remain on the streets. So seen, the condition does not attract the policy questions raised by self-induced states. Nor, however, does it determine where in the grey area the case lies. What the decision-maker must consider with great care is whether there are other factors which do render the claimant vulnerable for a special reason. One such reason might be that he had suffered some particular form of harm, such as the alcoholic applicant in R v Waveney DC, ex p Bowers [1983] QB 238. Another might be that he had spent a significant amount of time in care without family support.

This appeal has not needed to address the question of how the decision-maker should deal with a case involving two of the prescribed causes of vulnerability – here, if the claimant is right, having been in care and some other special reason. We would nevertheless observe that where two such causes have produced a single set of effects, it would not seem consistent with Parliament’s intention that the effects should be artificially distributed between the causes in arriving at a decision on the critical question of vulnerability.

We appreciate that even these limited propositions are unwelcome to local housing authorities which have worked hard to clear drug dealers and users from their housing stock and their estates. They do not want tenants who, even if themselves staying off drugs, are likely to be visited, possibly be pestered, and have their accommodation and its surroundings used by their former associates. But this is not a relevant consideration under s.189, except – and perhaps importantly - to the extent that a judgment has to be made about the dependability and prognosis of the applicant’s abstinence.

This appeal is accordingly dismissed. The judge’s order quashing the decision contained in the letter of 7 January 2005 stands. On reconsideration, assuming that the application is pursued, the local authority will of course need to act on up-to-date evidence.