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:

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:

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:

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:

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:

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:

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:

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:

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.