Royal Borough of Kensington & Chelsea v Danesh

LORD JUSTICE NEUBURGER: This is an appeal from a decision of HHJ Cotran given in the Shoreditch County Court, on 17 March 2006, it is brought with the permission of Jonathan Parker LJ. The judge had before him an appeal under section 204 of the Housing Act 1996, and all references are to sections of that Act unless the contrary is stated. The appeal has been brought by a Mr Mohammed Danesh against a decision of the Royal Borough of Kensington and Chelsea (“RBKC”), who had decided that it did not have a duty to house Mr Danesh, because it should refer his application for housing to the Swansea City Council (“SCC”).

Mr Danesh and his family entered the United Kingdom as asylum seekers in August 2003. After a short period residing in Barnsley, they were provided with accommodation by the National Asylum Support Service (“NASS”) in Swansea in September 2003. On 19 October 2004, Mr Danesh was granted indefinite leave to remain, and, accordingly, he became eligible for assistance and housing under part VII of the 1996 Act, pursuant to section 185 thereof. As a result, NASS stopped providing him with assistance, albeit allowing him a period of grace. On 22 November 2004, Mr Danesh came to London with his family and stayed overnight with a friend in Kensington. The following day, he applied to RBKC for assistance under part 7 of the 1996 Act and, while his claim was being investigated, he was placed by RBKC in temporary accommodation in Shoreditch.

I turn to the relevant law. Part VII of the 1996 Act imposes duties on local housing authorities to provide housing advice and/or accommodation to homeless persons who apply to them and satisfy certain criteria. In particular, there is, in general, an obligation to provide accommodation to persons such as Mr Danesh “with priority need” and “who are not homeless intentionally”.

Section 198, which is the perhaps centrally relevant provision for present purposes, provides as follows:

“(1)

If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for reference to the case to another local housing authority, they may notify that other authority for their opinion.

“(2)

The conditions for referral of the case to another authority are met if-

a)

neither the applicant nor any person who might reasonably be expected to (inaudible) reside with him has a local connection with the district of the authority to whom the application was made.

b)

the applicant or person who might reasonably be expected to reside with him has a local connection with the district of that other authority

c)

neither the applicant or any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

“(2A) That if the conditions for referral mentioned in subsection 2 are not met if:

a)

the applicant or any person who might reasonably be expected to reside with him has suffered violence, other than domestic violence in the district of the other authority and

b)

it is probable that the return of that victim will lead to further violence of a similar kind against him.

“(3)

For the purposes of subsection 2 and 2a ‘violent’ means

a)

violence from another person; or

b)

threats of violence from another person which are likely to be carried out and violence is domestic violence if it is from a person who is associated with the victim.”

[I omit subsections (4), (4A) and (4B)].

“(5)

The question whether conditions for referral of a case are satisfied should be decided by agreement between the notifying authority and the notified authority, or in default of an agreement, in accordance with such arrangements as the Secretary of State may direct by order.”

[I omit subsections (6) and (7).]

Section 200 sets out the duties of a local housing authority after it has decided that an applicant should be dealt with by another authority under section 198. Section 200 provides:

“1.

Where a local housing authority notify an applicant that they intend to notify or have notified another local authority of their opinion and the conditions are met for referral to that other authority …

they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral of his case are met.

“2.

Where it has been decided whether the conditions for referral are met, the notifying authority shall notify the applicant of the decision and inform him of the reasons for it. The notice shall inform the applicant of his right to request a review of the decision and of the time within which such a request may be made.”

Sections 200(2)(i)(c) and (d) entitle an applicant to request a review by the housing authority of its decision to notify another housing authority under section 198(1) and 198(5). Section 203 sets out the procedure for such a review. Section 204 entitles an applicant who is dissatisfied with the decision of the housing authority under the section 202 review to appeal to the County Court on a point of law.

On 4 January 2005, following an interview with Mr Danesh the previous day, RBKC decided that he had a local connection with Swansea by virtue of his previous residence there, that he had no local connection with Kensington, and accordingly that his application would be referred to SCC. Mr Danesh sought a review of that decision, which resulted on 4 March 2005 in RBKC upholding a decision on that point. Following discussions between RBKC and SCC, RBKC wrote to Mr Danesh on 9 March 2005 to tell him that SCC had accepted the referral of his application and that he had a renewed right under section 200 to seek a review of RBKC’s decision. Mr Danesh duly exercised that renewed right. This initially resulted in what is an admittedly flawed review by RBKC upholding the decision, which was withdrawn.

A further review was carried out, and, this resulted in RBKC upholding its decision, as recorded in a letter dated 2 December 2005, the review letter written by a housing review officer, Mr Sandy McDougall. Having dealt with the issue of Mr Danesh’s local connection, the review letter turned to the ground upon which the review was sought, namely under section 198(2)(a). The letter recorded the experiences upon which Mr Danesh relied, and I quote from the review letter:

“In her letter 13 April 2005, Caroline Edge of Swansea Council Asylum Team states that you suffered ‘harassment’ during your time in Swansea. In December 2003 you told Miss Edge that you had been experiencing problems with young people on the council estate where you lived. You told Miss Edge that these ‘youths’ made trouble late at night near your house and at a nearby bus-stop. You also told Miss Edge that you were often shouted at when you waited for a bus. Further, a man on a bus would not let you sit next to him and used strong racist language. On 23 March 2004 you reported problems with youths shouting and flicking their middle fingers. You told Miss Edge that someone at a bus-stop asked you if you were Al-Qaeda.

“There were also two more serious incidents which occurred in January and June 2004. In January 2004 you were pushed from behind outside Town Hill community centre. You fell and hit your face … it is reported that you passed out and when you came round the perpetrator had gone. You were taken to hospital … and the incident was not reported to the police. Miss Edge confirmed to Miss Yates that no racist language was noted in her report. Initially you were unsure whether there was a racist element to the attack, and now you believe there was. In June 2004 you were assaulted in the city centre and some money was stolen from you. The incident was reported to the police but not pursued. [I omit words]

“[You told Miss Yates] that you do not believe the incidents were connected in any way or that a particular personal group was targeting you. However, you do believe you were targeted because you were an asylum seeker. When you were interviewed by Miss Yates on 3 May 2005, you told her about similar incidents. You said buses would not stop for your wife and she had been left standing in the cold and rain with your children. You told Miss Yates that people ‘hassled’ you if you went for a drink and that you felt people were looking at you in a certain way.”

The review letter went on to say that Miss Yates’ enquiry showed that only two per cent of Swansea’s population was from ethnic minorities and that “asylum seekers will be a very small minority of the community”. The letter also recorded that Miss Yates had been told that the police “took a very proactive and robust stance where racist and hate crimes are reported” and that there had been “unrest across the whole community” in 2004 following the murder of a Kurdish asylum seeker, but then this had now abated. The letter then referred to “verbal attacks” which Mrs Danesh said she had suffered in Swansea, and which she believed were racial in nature and would resume if she returned to Swansea.

The essence of the reasoning for the conclusion in Mr McDougall’s letter, upholding the decision of RBKC, is in the following three paragraphs:

“I think you have been unfortunate regarding the two more serious incidents you have experienced. These were random incidents, and you accept they were not part of a course of harassment perpetrated against you and your family. You believe that these attacks were motivated by the fact that you are an asylum seeker. You base this on the fact that you have experienced verbal abuse. Although I understand why you might believe this, I am of opinion that you are mistaken.

“Firstly, Miss Edge of Swansea Council told Miss Yates that there was a lot of verbal harassment of asylum seekers but very little physical. Secondly, both the incidents you have experienced can be better explained without reference to racial harassment or abuse. The incident in the centre of Swansea was a theft, or mugging, motivated by financial gain, and the incident on the Townhill estate was of the type that is unfortunately becoming all too common these days. It was a random, motiveless attack. Being unknown to the perpetrators is reason enough for such attacks. While I am sympathetic to your situation, I do not believe there is any part of the UK that is free of this type of crime. It is not possible for any local authority to guarantee a crime-free existence to its residents.

“It seems to me that the verbal abuse suffered by you and your wife may have led you to see a pattern when none existed. I have considered the verbal abuse suffered by you and your wife [I omit words]. Although this incident may have been offensive or upsetting, it does not appear to me that either you or your wife were threatened with violence. It seems clear that neither you nor any member of your family were ever assaulted as consequence of a threat made to you. I am therefore satisfied that there is no reason to believe that you or your family [the word “you” is then wrongly included], have been threatened with violence, and that it is more likely than not that violence will result if you return to Swansea [again, it seems to me that a “not” is missing before the word “result”]. Further, as stated above, it is accepted that you have experienced two incidents of actual violence in Swansea. However, as both incidents were random in nature and more likely not to have been motivated by reasons other than hate/race, I am satisfied that it is more likely than not that you will not experience similar incidents if you return to Swansea. I have to conclude that it is not probable that you will be a victim of actual violence should you return to Swansea. I am of the decision by the Royal Borough of Kensington and Chelsea to refer your case is correct.”

I shall call those the concluding paragraphs, but I should add that the review letter went on to consider very properly the question of whether, nonetheless, RBKC should exercise its discretion not to refer and came to the conclusion that it should not.

Mr Danesh appealed under section 204 to the County Court, and HHJ Cotran decided to quash the decision. His reasons are contained in summary form in paragraphs 26 and 27 of his judgment where he said this:

“26.

… it is elementary that it is not necessary to have violence only with a battering. I do not think either that the reviewer has said that. What he did say is that he accepted there were two serious incidents of actual violence which clearly came within the definition of violence from another person [under section 198(2)(a)]. The reviewer did not seem to consider the definition [i.e. the statutory definition], threats of violence from another person which are likely to be carried out, and he did not consider the harassment itself insofar as it did not involve violence affecting the probability or likelihood of it occurring again if returned to that area.

“27.

I think, looked at as a whole, he (that is, the reviewer) did not lay sufficient stress on the perceptions of the victims in this case, that is to say Mr Danesh and his wife, on the probability of this happening again of the same type if they were to return to Swansea. After all, they did not spend a very long time in Swansea, they lived in a community there and, in that short space of time, they had two incidents involving violence, which they both perceived to be racially motivated. Both he and she suffered other incidences of threats to violence. They certainly feared or understood there to be at least a possibility of them being carried out. I am of the view that, looked at as a whole, the finding that it is not for the housing authority to guarantee that these would not recur again is irrational in the circumstances of this case. I recognise, of course, that courts have said time and again that appeal from review decisions of local authorities are to be treated as in judicial review proceedings, i.e., based on the grounds of irrationality, illegality or procedural unfairness. Although there was no procedural unfairness here, there were in my judgment two blatant errors of law; one, in the approach to the definition of violence, and one in the probability of more violence taking place again on return to Swansea, given the reviewer accepted the facts as related by the appellant and his wife.”

This reasoning, as I understand it, reflected the two main grounds upon which Mr Danesh’s section 204 appeal was mounted by Mr Loveland, before HHJ Cotran, and upon which he seeks to defend the decision below in this court. First, that the reviewer misunderstood the meaning of the word “violence” in section 198; secondly, that, in any event, the decision reached in the review letter was irrational. I turn to consider those points.

On the first point, the meaning of the word “violence”, it is said on behalf of Mr Danesh that Mr McDougall misdirected himself in the review letter into thinking that “violence” required physical assault or physical contact of some sort, whereas, at any rate in the context of a case such as this involving violence to the person, it includes words, actions or gestures, which cause the applicant to fear physical attack. In other words, in the context of a case such as this (involving, as I say, violence to the person) “violence” in section 198 embraces the concept of “assault” as that term is used in criminal law. As was said, in that criteria but is not limited to, by Lord Goddard, LCJ in R (The Queen) v Rolfe [1952] 36 Cr App R 6:

“An assault can be committed without touching a person. One always thinks of assault as the giving of a blow to somebody, but that is not necessary. An assault may be committed by a threat or a hostile act committed towards a person.”

See also, more recently, Lord Steyn in R v Ireland [1998] AC 147 162(A).

RBKC’s contention in this connection is that, as Mr McDougall thought, “violence” in section 198 involves, in a case such as this, some sort of physical contact. In my view, that contention is correct, and the judge was wrong. In section 198, “violence” means physical violence and the word “violence” on its own does not include threats of violence or acts or gestures, which lead someone to fear physical violence. I reach that conclusion for a number of reasons.

First, this is the natural meaning of the word “violence”. I appreciate that an acontextual meaning of a word is not, of itself, an entirely safe basis for interpretation a particular word must be construed in its context. However, when an ordinary English word is used, one is entitled to assume that, in the absence of good reason to the contrary, it should be given its primary natural meaning, and to my mind, when one is talking of violence to a person, it involves physical contact.

Secondly, in section 198(3), violence is defined as (a) violence or (b) threats to violence which are likely to be carried out. It seems to me that if Mr Loveland’s contention is correct and the judge was right, the sort of actions which are said to be encapsulated within paragraph (a), really render paragraph (b) redundant. It is a little difficult to see how “violence” extends to the full concept of assault in criminal law; if it was necessary to include the extension in paragraph (b). Indeed, paragraph (b) involving as it does a purely objective criterion, seems positively inconsistent with the judge’s view.

Thirdly, relying on the meaning of a different word, “assault”, in a different context, namely the criminal law (the common law, and sections 18, 20, 47 of the Offences Against The Persons Act 1861) to assess the meaning of “violence” in section 198 of the Housing Act 1996 seems to me quite wrong in principle and likely to lead to error as it has done in the present case. It is true that Mr McDougall, at one point in the review letter, used the word “assaulted”. However, it is quite clear from its context and common sense that he was using it to mean “suffered violence”, rather than the somewhat esoteric criminal law meaning of that expression.

Fourthly, there is the guidance to which the local housing authorities are statutorily required to have regard under sections 182 and 198 of the 1996 Act. It seems to me that in various passages that guidance is consistent with the view that the word “violence” in part VII of the 1996 Act must involve some sort of physical contact. To take one example, in paragraph 8.32 of the guidance one sees this:

“In some cases severe harassment may fall short of actual violence or threats of violence to be carried out. Housing authorities should consider carefully whether applicants who have fled their homes because of non-violent forms of harassment, for example verbal or psychological abuse, or damage to property, are vulnerable as a result.”

Fifthly, Mr Loveland accepts that, if his definition of violence is correct, an applicant would be entitled to have a subjective test applied to the question of whether or not he feared violence. That appears to me to be inappropriate. The terms of section 198 are objective in nature: whether violence occurred, whether a threat of violence had occurred, whether either is likely to occur, and whether it is probable that such acts or threats may occur. Subjective concepts do not seem to be involved in that section. Furthermore, it seems somewhat difficult for a housing officer to assess the genuineness of an applicant’s fears and it is, further, questionable, at least to my mind, whether a housing authority’s duty under section 198 should be influenced, indeed determined, by the subjective feelings of an applicant about the likelihood of violence.

Accordingly, I consider that the review letter adopted a proper approach to the meaning of the word “violence” in section 198 and I would allow the appeal on that ground.

However, it is also necessary to consider the other ground upon which the judge decided in favour of Mr Danesh, even if, as I have found, “violence” had the meaning which the review letter rightly assumed. As I read the judgment, the judge said that RBKC had adopted the wrong approach to the question of whether it was “probable” that Mr Danesh and his family would suffer violence if they returned to live in Swansea. In this connection, it seems to me that there may be three limbs to the judge’s reasoning.

First, that the conclusion reached by RBKC in the review letter was one which could not reasonably have been reached. Secondly, that the conclusion gave insufficient weight to the “perceptions” of Mr and Mrs Danesh. Thirdly, that it was “irrational”, at least “in the circumstances of this case”, for RBKC to say that it was not for them to guarantee that violence would not occur again if Mr Danesh and his family were returned to Swansea.

In my view, each of these points is flawed -- indeed, with due respect to the judge, plainly wrong. As to the first point, namely inherent irrationality, the judge rightly recorded, in the penultimate sentence of paragraph 27 of the judgment, that irrationality was the only basis for challenging the decision in the review letter, as neither illegality nor procedural unfairness arose. In this connection, earlier in his judgment, paragraphs 19-21, the judge had gone through the concluding three paragraphs of the review letter, interposing various criticisms of Mr McDougall’s reasons. All these criticisms were, in my view, baseless. Thus, he said that Mr McDougall had not been entitled to rely upon information given by NASS to Miss Yates. He also criticised Mr McDougall’s conclusion on various issues, eg whether the two incidents of violence were racially motivated, or whether there was a risk of repetition of violence if Mr Danesh and his family returned to Swansea as:

“only his perception or belief, and that it was not for Mr MacDougal to give a judgment or opinion on this matter”.

Further, the judge even criticised Mr McDougall’s conclusion, and indeed purported to overrule the conclusion, that there was no racial basis for the two incidents of physical violence that did take place. Given that Mr McDougall was carrying out a statutory review, which required him to come to and express conclusions on all these matters, these observations were, in my view, wholly misconceived and, to his credit, Mr Loveland did not, as I understand it, seek to justify them.

Looked at more generally, far from being irrational, either in the sense of being a decision which no reasonable person could have reached or a decision which contained effective reasoning, it appears to me that the review letter represented a full and careful analysis which set out all the facts accurately, analysed the facts properly and reached a conclusion which was eminently open to the reviewer.

As to the second criticism made by the judge, namely the perceptions of Mr and Mrs Danesh not being taken into account, it seems to me (as I have said) quite clear as a matter of language, and indeed of policy, that the “probability” under section 198(2)(a)(b) is to be assessed objectively by the person carrying out the assessment. The fears or concerns of the applicant might be taken in to account, but in my view, in many, indeed, in most cases, such concerns and fears would be of little or no value. It is the facts upon which such fears are based which would be relevant. In this case, the fears and understandings of Mr and Mrs Danesh were carefully recorded in the review letter, but the decision on probability was made very properly on the basis of objective facts viewed in the light of the judgment of the reviewer, Mr McDougall.

As to the judge’s criticism of Mr McDougall’s statement that it was not a question of RBKC guaranteeing the safety or freedom from violence of Mr and Mrs Danesh, it seems to me that that criticism is plainly misconceived. It was not for RBKC to guarantee the safety of Mr and Mrs Danesh if they were to be returned to Swansea; it would be a remarkable thing if the Act had so provided. It was for RBKC to assess the probability of violence being suffered by the Danesh family and, almost by definition, if one concludes that it is improbable they would suffer violence, one is accepting that it is possible that they will do so. Unfortunately, it is a fact of life, as it has always been, that people might suffer violence wherever they are. It would therefore be absurd if the law was as the judge seems to have thought.

Mr Loveland did suggest that Mr Danesh and his family might be more prone to violence in Swansea than in Kensington or many other places in the United Kingdom, and for all I know that may be right, but it is not to the point. The statutory test is clear and the suggestion has no bearing on this issue.

I would therefore allow this appeal, but I think it right to add two further points.

First, it seems to me that as my Lord, Lord Justice Mummery, said in argument, that in a second appeal such as this, the primary question is normally not whether the tribunal deciding the first appeal was right but whether the original decision was right, or at least one the decider was entitled to reach. In this case, as I have already made clear, it seems to me that the original decision was a clear and careful one and involved reaching a conclusion which was plainly unassailable.

Secondly, I regret to say that the judge appears to have decided a number of issues against RBKC in circumstances which, at least on the arguments we have heard and the documents we have taken to, appear to have been unfair. First, he found that the two violent attacks relied on by Mr Danesh were racially based, contrary to what was said in the decision letter, when it was made clear, very properly by Mr Loveland in argument on behalf of Mr Danesh, that the review letter’s conclusion on that issue was not being challenged. Secondly, again although Mr Loveland accepted that no criticism could be made in relation to the “guarantee point”, ie the third aspect of the judge’s reasoning on the second point, yet the judge proceeded to criticise the review letter on this ground. Thirdly, the judge quite mistakenly said that the review letter had failed to deal with any issue relating to acts of violence, whereas no such submission had been made on behalf of Mr Danesh and therefore no opportunity had been given to RBKC to deal with it.

In all the circumstances therefore, for the reasons I have given, I would for my part allow this appeal and restore the decision contained in the review letter.

LORD JUSTICE JACOB: I agree with every word that has fallen from my Lord, Lord Justice Neuberger. I specifically agree with the criticisms made of the judge’s judgment.

LORD JUSTICE MUMMERY: I agree with both judgments. The appeal is allowed. We set aside the order of the judge on 17 March 2006 and we restore the decision of the review officer of 2 December 2005.