Khelassi v London Borough of Brent

By section 189(1) of the Housing Act 1996 it is provided that homeless persons who have a priority need for accommodation include:

“(c)

a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason … .”

The respondent, Azzedine Khelassi, is a French national who is now 35 years of age. He arrived in the United Kingdom from Algeria in 1996. He was married in 2000. Prior to August 2003 he and his wife were living in a flat in north London. In that month they separated, she having required him to leave the flat which was in her name. Since then Mr Khelassi has been a homeless person for the purposes of Part VIII of the 1996 Act. He claims that he is a person who is vulnerable as a result of mental illness within section 189(1)(c) and accordingly has priority need for accommodation. The local housing authority, the appellants the London Borough of Brent (“Brent”), have at all times maintained the contrary.

The facts can be taken from the judgment of His Honour Judge Richardson in the court below and can be stated mainly in his own words. On 1^st September 2003 Mr Khelassi approached Brent for housing assistance. Having completed a medical assessment which indicated that he suffered from depression, he was interviewed by Brent’s housing department. At about the same time Dr Patel, a non-specialist doctor at a walk-in centre in Wembley, wrote to Brent stating that Mr Khelassi was suffering from anxiety and depression and offering the opinion that his homeless state was aggravating his condition. Dr Patel thought that Mr Khelassi was a vulnerable individual.

On 11^th September 2003, his current accommodation being due to be terminated on 18^th September, Brent’s housing department decided that Mr Khelassi was not vulnerable and accordingly not in priority need. No copy of the decision has been made available either to the judge or to this court.

On 16^th September 2003, on the instructions of solicitors acting for Mr Khelassi, Dr Philip Steadman MRCPscyh, a consultant psychiatrist specialising in general and rehabilitative psychiatry, prepared a medical report on Mr Khelassi. In the body of the report, under the heading “Psychological Difficulties”, Dr Steadman, having set out what Mr Khelassi had told him, said:

“It is my view that this gentleman urgently requires to be under the care of a local community mental health team to assist him with his difficulties.

It is my view that this gentleman represents a current serious suicide risk having lost his wife, lost his job, being estranged from his family in this country and being separated from his family in his country.”

In the summary at the end of his report Dr Steadman, having stated his view that there was a significant risk that each of the difficulties described to him by Mr Khelassi would be likely to worsen were he homeless and more anxious, stated:

“He presents with psychological difficulties currently which in my view amount to difficulties with anxiety. He is in my view substantially depressed. Also he presents with difficulties which in my opinion would be consistent with being a current partial syndrome of post traumatic stress disorder.

This gentleman describes frequent suicidal thoughts and in my view there is a real and substantial risk of him killing himself (I have assessed the risk of suicide in many thousands of patients). It is my view that he urgently requires to be under the care of a local community mental health team who could provide him with psychological support and further treatment.

It is my view that his psychological difficulties would distinctly hinder him [in] any attempt to seek out accommodation including his lack of concentration, lack of self confidence and lack of motivation.

It is my view that were this gentleman to be homeless then there would be a substantial risk of his psychological state worsening even further and I would like to say that I would have grave concerns about this.

It is my opinion that this gentleman requires as much stability as it is possible to inject into his life currently and it is my view that were this gentleman to be provided [with] stable housing, then I would hope that some stability could be introduced into his mental state and it is my view that the housing authorities have an excellent opportunity to assist this gentleman in a very real way at this time.”

As will appear, the crucial feature of Dr Steadman’s report was his view, twice expressed, that there was a current serious risk or a real and substantial risk of Mr Khelassi’s committing suicide.

Dr Steadman’s report was immediately sent to Brent, who, on 26^th September agreed to house Mr Khelassi, a temporary order being made on 9^th October whereby it was agreed that he be provided with suitable temporary accommodation until conclusion of a review of the decision made on 11^th September under section 202 of the 1996 Act.

On the same day, 9^th October 2003, a report giving medical advice to Brent was prepared by Dr John W Keen BM. He was not a psychiatrist and was described by the judge as being a medical adviser provided through an agency by virtue of arrangements made by Brent so that they could have access to medical advice in housing cases. Amongst the material placed before Dr Keen were Dr Steadman’s report and the letter to Brent from Dr Patel.

In his report Dr Keen said that it was clear that Mr Khelassi suffered from reactive depression, i.e. depression in reaction to circumstances or life events, in this case his separation from his wife. Having then referred to five particular features of the case, Dr Keen continued:

“All of the above leads me to conclude that his condition is not substantial, nor such as to impede reasonable function and activity, and being mindful of Pereira as always, I make no recommendation for housing on this basis.

I note in detail Dr Steadman’s report which is a one-off ‘snapshot’ produced for legal purposes; he is not actively involved in treating this case. However, it is clear from the report that he does not consider any mental illness to be severe in nature and broadly supports my view above.”

Having considered Dr Steadman’s report and the other circumstances of the case Dr Keen concluded:

“In summary, I do not believe that any depression is such as to significantly impede the applicant’s normal and reasonable function, nor will materially hinder his ability to cope as a homeless person, and I do not consider that there is a significant risk to his health by homelessness. I therefore continue to make no housing recommendations.”

In commenting on Dr Keen’s report, Judge Richardson said (para 14):

“Dr Keen made no reference to suicide or suicide risk. He was not a psychiatrist. I detect in his medical advice in October 2003 a tendency to be dismissive of Dr Steadman’s report on the basis that Dr Steadman repeatedly reported in such cases. Be that as it may, on the key question of vulnerability there is a gulf fixed between what Dr Keen was saying and what Dr Steadman was saying. The two positions are not reconcilable.”

I respectfully agree. It is also pertinent to observe that it is difficult to see how it could have been said that Dr Steadman’s report broadly supported Dr Keen’s view, especially in regard to the real and substantial risk of Mr Khelassi’s committing suicide.

The next material event was a report dated 14^th October 2003 prepared by Dr Nada Al-Asadi, a psychiatrist at the Central Middlesex Hospital and a member of the Brent South Sector Community Mental Health Team. The material passages in the report are the following:

“This is to confirm that Mr Khelassi is a known patient to our psychiatric services at the Park Royal Centre for Mental Health, Central Middlesex Hospital. He was referred to us recently and presented with a moderate depressive episode with psychotic features.

Mr Khelassi’s mental health was triggered by traumatic events back in Algeria, but his symptoms have been greatly acerbated by social circumstances that have occurred recently in the UK.

Mr Khelassi has been through a divorce from his wife, following which he became homeless. Mr Khelassi has found the sequence of these events most disturbing and reacted to all this by feeling increasing[ly] depressed … .

When I last saw Mr Khelassi on 10^th October 2003 he came across as extremely depressed and hopeless. He entertained suicidal thoughts and recently stated hearing voices threatening in nature. Mr Khelassi has entertained suicidal ideas, and has actually had one suicide attempt last month … .

Mr Khelassi still has ideas of suicide, and sees no point to his life. He has recently been started on antidepressive medication which has not made much difference … .

If he is not supported at this stage, I would be extremely concerned about further deterioration of his mental state, which may culminate in a crisis admission and perhaps even successful suicide attempt.

I would therefore appreciate it if you would kindly support his application for re-housing and provide him with accommodation that he finds satisfactory.”

On 15^th January 2004, again on the instructions of Mr Khelassi’s solicitors, Dr Steadman, who had seen Mr Khelassi for a second time on the previous day, prepared a supplementary report, in which, as the judge put it, he reiterated his original conclusions. He referred, amongst other things, to Mr Khelassi’s description of ongoing suicidal thoughts. Dr Steadman said that he was even more concerned than he was in September 2003 about the prospect of Mr Khelassi’s being made homeless.

On 22^nd January 2004, following a further examination on 21^st January, Dr M Khalil, another psychiatrist from the Brent South Sector Community Mental Health Team, reported on Mr Khelassi in identical terms to those in which Dr Al-Asadi had reported on 14^th October 2003.

So far as appears from the material placed before the judge and this court, nothing happened between 22^nd January 2004 and May 2005. As to this, the judge said (para 19):

“Well into 2005 the local authority decided to conduct a fresh review. Neither counsel told me the intervening story. It is, or ought to be, very unusual for a review pursuant to section 202 of the Housing Act 1996 to be conducted so remotely from the original decision. The circumstances with which I have to deal are, I hope, unusual, but no ground of appeal turns in itself on the delay in the review process.”

At the beginning of May 2005 Brent arranged for Mr Khelassi to be further examined by Dr Keen. As the judge said, Dr Keen’s further report was succinct. Like him, I shall quote it in full:

“I examined the applicant on 6 May 05, and have carefully reviewed the file and various medical reports; my assessment concurs broadly with Dr Steadman’s in that I found him to be depressed, to a moderate extent (Becks score 24). I found no definite psychotic systems and whilst he has thoughts of self-harm, there in no actual suicidal intent.

He wishes to return to work (as a chef) and is apparently not working purely on the advice of his GP; I wholly disagree with this advice and consider a return to work may be therapeutic in this case.

Overall I do not consider his depression of a type or severity such as to significantly impede his reasonable function, nor do I see material risk to his health from homelessness, and I therefore do not consider him vulnerable on any medical grounds.”

It is to be observed that in that report (“my assessment concurs broadly with Dr Steadman’s”) Dr Keen repeated the view expressed in his first report of 9^th October 2003 that Dr Steadman’s reports broadly supported his own view. I repeat that it is difficult to see how that could have been said.

So far as appears from the material placed before the judge and this court, the next thing that happened was that on Saturday 20^th August 2005, some three months after Dr Keen’s second report, the Reviews Manager at Brent’s Housing Reviews Centre wrote Mr Khelassi a “minded to” letter stating that he was minded to uphold Brent’s original decision that they did not have a duty to re-house him. The heading to the letter referred to a request for a review under section 202 of the 1996 Act, and it must be assumed that Mr Khelassi had made such a request. But it is not clear whether the decision in question was the decision of 11^th September 2003 or some intermediate decision to the same effect. However, while the situation is unsatisfactory, that has not proved to be a point of any significance in the case.

The letter of 20^th August relied substantially on Dr Keen’s advice. It is unnecessary to rehearse its contents, except to say that it requested that any representations which Mr Khelassi wished to make should be made by Tuesday 23^rd August. The Reviews Manager said in evidence that he posted it the following day, i.e. on Sunday 21^st August, which means that it may not have arrived until the Tuesday. The judge found that Mr Khelassi received the letter, and that he telephoned the Reviews Manager and enquired if he had received information from his general practitioner. The judge added:

“Given the extremely tight timescale provided by the ‘minded to’ letter, this is all Mr Khelassi could be expected to have done.”

The decision letter which is at the heart of the case was written to Mr Khelassi by the Reviews Manager on 15^th September 2005. As the judge said, it correctly referred to and quoted from R v Camden LBC ex parte Pereira [1998] 31 HLR 317. It set out the material which the decision maker had taken into account, including the opinion of Dr Keen, a medical questionnaire from Mr Khelassi’s GP’s surgery (we have not seen this document), previous medical information held on file “e.g. report by Dr Steadman and Dr Al-Asadi” and all the other information held on file. It continued:

“It is acknowledged that an ordinary person would suffer a degree of injury or detriment when homeless. I must therefore consider whether you would suffer injury or detriment more than an ordinary person.

According to all the information available to me it is evident that you suffer from depression, stress, anxiety and neurosis. Given that a great deal of the information such as the report from Dr Steadman, the assessment from the Brent South Community Mental Health Team is over 18 months old I requested that you be assessed by our Medical Advisor, Dr Keen, and requested information from your GP, Dr Ali. This is so that I could get an up to date report on your medical problems. Dr Keen found that you were depressed and that his assessment broadly concurs with Dr Steadman’s. He found that your depression was moderate with no psychotic symptoms. Although you have suicidal thoughts he found no evidence of actual suicidal intent and this can be seen that there have been no reports of self-harm in the last 18 months even though the Brent South Community Mental health Team had expressed concerns. He also explained that you wished to return to work and he felt that in fact you were able to work. It is also evident that despite your depression you have been able to manage your own affairs, successfully apply for income support and housing benefit, and live independently. Furthermore, your GP has not referred you to any secondary psychiatric services. This is despite the break up of your marriage and experiences in Algeria.

Despite your medical problems your GP’s surgery have confirmed that you do not require any overnight care or assistance with activities of daily living. Furthermore you do not need any support to maintain independent living. The surgery also did not state that you were either prevented from finding and keeping your own accommodation or that you would be less able to fend for yourself so hat you would suffer injury or detriment greater than an ordinary homeless person.

Given all the above I am not satisfied that you would be less able to fend for yourself, when homeless, so that you would suffer injury or detriment greater than an ordinary homeless person. In reaching this conclusion I have taken into account your ability to fend when you are in fact homeless as your current circumstances are such that you are being provided with temporary accommodation by this Authority.

In reaching my conclusion that you are not vulnerable I have also considered the recommendation from the Council’s Medical Advisor that you are not vulnerable.”

The letter went on to state that Mr Khelassi was therefore not in priority need under section 189 of the 1996 Act.

Mr Khelassi appealed against the decision to the Romford County Court under section 204 of the 1996 Act. In an admirable reserved judgment delivered on 23^rd March 2006 Judge Richardson allowed the appeal and ordered that the matter be remitted to Brent to determine the question of vulnerability in accordance with the judgment. The basis of his decision was that Brent’s decision had been erroneous in law and should be set aside accordingly.

It is not suggested on behalf of Brent that the judge misdirected himself as to the law. In particular, it is not suggested that the judge misdirected himself in holding that a significantly enhanced risk of suicide was capable of amounting to a detriment of the kind encompassed in ex parte Pereira; see Griffin v Westminster City Council [2004] HLR 32. What is said by Mr Russell, who has appeared for Brent both here and below, is that the judge erred in principle, in particular in the following passage:

“35.

I find it helpful to ask what the position would have been if this review had been held a year earlier. At that time the local authority would have had three separate psychiatric opinions all relevant to the question of vulnerability, all supportive of Mr Khelassi’s case, all referring to his vulnerability and also a risk of suicide. It is, in my judgment, really inconceivable the local authority would have preferred the opinion of a non-specialist, non-treating doctor to this body of evidence. It would have been wholly irrational to do so.

36.

What is the position a year or so later?

37.

On the central question of vulnerability and suicide risk it is, in my judgment, clear that the sharp difference of opinion between Dr Keen and Dr Steadman still existed. Although Dr Keen said that he was ‘in broad agreement with Dr Steadman’, on the key question of vulnerability he was not. Moreover, this was not some new difference by reason of changed circumstances, there had always been a key difference on this issue between Dr Keen and Dr Steadman.

38.

The decision letter does not, in my judgment, grapple properly with this important difference. There is no adequate consideration of the substantial body of psychiatric evidence which had been obtained … .

39.

I agree with Mr Russell when he says that the local authority’s duty is to make such enquiries as are necessary (see section 184 of the Housing Act 1996). I further agree with him that the decision as to what inquiries are necessary is primarily a question for the decision maker, not for the court. What is necessary will depend on what is at stake. Where a significant risk of suicide is in issue a great deal is at stake. In my judgment, given the body of psychiatric evidence which existed, it was necessary to obtain an opinion more authoritative than that of Dr Keen, especially bearing in mind the patent disagreement on the key issue of vulnerability which already existed between Dr Steadman and Dr Keen. I appreciate that the decision is one in the first instance for the decision maker, but, in my judgment, a decision to proceed on the basis of Dr Keen’s report, setting effectively aside the existing psychiatric evidence without making any further enquiry of treating psychiatrists, was outwith the standard of any reasonable decision maker. To my mind, to proceed on the basis of Dr Keen alone was in 2005 just as deeply unsatisfactory as it would have been in 2004.”

Brent have now applied for permission to appeal to this court. Since it would be a second appeal, it is necessary that it should raise an important point of principle or practice or that there should be some other compelling reason for this court to hear it; see CPR Part 52.13(2). The application came for consideration on the documents before Lord Justice Lloyd, who ordered that the application be adjourned to an oral hearing on notice to Mr Khelassi, with the appeal to follow immediately if permission was granted. He ordered a stay of the judge’s order in the meantime.

So the first question we have to decide is whether the requirements for a second appeal are satisfied. We have, however, heard full argument from Mr Russell, both on the application and on the merits of the appeal on the footing that permission is granted. We have not found it necessary to call on Mr Knafler to respond on behalf of Mr Khelassi.

In my judgment no important point of principle, indeed no point of principle at all, would be raised by an appeal in this case. The only possible basis for saying that the threshold is met is the judge’s observation, in para 39 of his judgment, that it was necessary, given the body of psychiatric evidence which existed, to obtain an opinion more authoritative than that of Dr Keen. Had that been expressed as general guidance to local health authorities in cases where the psychiatric advice was contrary to that of the authority’s own medical adviser not being himself a psychiatrist, that might indeed have raised an important point of principle. But if para 39 is read as a whole and in context, it is manifest that that was neither what the judge intended to say nor what he did say. He was simply dealing with the facts of the case before him, in particular with Dr Keen’s repeated failure either to understand or, if he understood it, to face up to what the judge had described (para 14) as the gulf fixed between what he and Dr Steadman were saying.

There being no other point of principle in the case nor any other compelling reason for this court to hear an appeal, I would refuse Brent the permission they seek.

While that is enough to dispose of the matter, I desire to add, that had permission been granted, I would, on conventional Wednesbury principles, have dismissed the appeal. The judge correctly directed himself as to the law. He took into account everything that he ought to have taken into account. He did not leave out of account anything that he ought to have taken into account. Accordingly, he did not err in principle. Moreover, his decision was not plainly wrong. Indeed, it was plainly right.

Two further points require a brief mention. First, I agree with the judge’s criticism, in para 40 of his judgment, of the insufficient opportunity afforded to Mr Khelassi by the letter of 20^th August 2005 to obtain his own psychiatric advice. It is, however, unnecessary to decide whether that would in itself have been an adequate ground on which to quash the decision. Secondly, the judge referred to a fresh psychiatric report prepared after the decision letter of 15^th September 2005 by a consultant psychiatrist who had not previously been involved in the case. Mr Russell has suggested that the judge may have been influenced in his conclusion by that report. I agree with Mr Russell that it would have been wrong for him to take it into account. But there is nothing in his judgment to support the view that he did. Indeed, the contrary is the case. Having pointed out (para 25) that the fresh report was not before Brent when the decision was taken, the judge quoted the essential part of it “for the sake of completeness”. It is entirely clear that he took no account of the report.

I would dismiss this application. The judge’s order must stand.

LORD JUSTICE PILL: I agree with Sir Martin Nourse that permission to appeal should be refused and for the reasons he gives.

I add a few words, first to express agreement with Sir Martin Nourse’s view that insufficient opportunity was afforded to Mr Khelassi to respond to the review manager’s “minded to uphold” letter, dated 20 August 2005 and posted on Sunday 21 August. Representations in response were required to be made by 23 August and that was insufficient time in a context in which, since the decision adverse to Mr Khelassi, which Brent were minded to uphold and had been made in September 2003, medical and other evidence highly favourable to him had been submitted to Brent. Moreover, the “minded to uphold” letter relies on the fact that the reports of Dr Steadman and of the Brent South Community Mental Health Assessment Team were “over 18 months old” as a justification for Brent’s proposed decision adverse to Mr Khelassi. The reason for that delay in reviewing the decision has not been explained to the court, but it is not suggested that the responsibility was Mr Khelassi’s, yet Brent rely on the passage of time in not accepting evidence submitted on behalf of Mr Khelassi for the purpose of the review. Moreover, having read the report, I cannot accept the proposition advanced in the letter that “Dr Keen’s assessment broadly concur with Dr Steadman’s assessment”. On critical questions there is a gulf between them.

Mr Khelassi and his solicitors took action in response to the “minded to uphold” letter. However, by the time up-to-date psychiatric evidence, on behalf of Mr Khelassi, had been obtained, a report of Dr M J Whelan, a consultant psychiatrist, dated 1 October 2005, and also favourable to Mr Khelassi, the adverse decision had been taken and Brent refused a further review.

I also note that in the decision letter dated 15 September 2005 reliance is placed, and in some detail, on what Brent describe as the “GP and Medical Questionnaire”. That is entirely legitimate -- material may emerge from the general practioner which throws considerable light on the extent of an applicant’s ability to fend for himself. What I do not regard as satisfactory in the present context is Brent’s operating on a time scale which did not permit disclosure of the material relied on to allow consideration of it and a response. The original material has not been seen by this court; there is doubt as to whether it was before the trial judge.

The judge was, in my view, entitled to reach the conclusion expressed at the end of paragraph 40 of his judgment, which Sir Martin Nourse has cited. On the material before him, he was entitled to conclude that the way the review was conducted involved an error of law by Brent and that the order should be set aside. The judge’s conclusion is sufficiently reasoned.

I also agree with Sir Martin Nourse that the judge did not, and did not intend, at paragraph 39 of his judgment, to establish a general principle that when an applicant has obtained one or more than one psychiatric report it is necessarily incumbent on the local authority also to obtain such a report. The application should, in my view, be refused.

LADY JUSTICE ARDEN: I agree that the application for permission must be refused for all the reasons that have been given by my Lord, Sir Martin Nourse and by my Lord, Lord Justice Pill.

I would like to add this: a point that has particularly weighed with me is the fact that the decision letter refers to the assessment by Dr Keen and describes it as one which broadly concurs with Dr Steadman’s. In fact, Dr Steadman in his first report had been concerned that Mr Khelassi was subject to a real and substantial risk of self-harm and he confirmed that belief in his further report. Dr Keen, on the other hand, made an overall assessment in May 2005 that:

“…the depression [was not] of a type or severity such as to significantly impede his reasonable function, nor do I see material risk to his health from homelessness, and [therefore I] do not consider him vulnerable on any medical grounds.” [Page 90 of the appeal bundle]

There was therefore a chasm between the two reports and while I have every sympathy for Brent in using a phraseology which they found in Dr Keen’s own report, in my judgment they should have read the reports and realised that there was a difference of opinion and that it was not possible for them to make their decisions as a matter of law without engaging and grappling, as the judge said, with that particular difference of view.

So, for this reason and for all those already given by my Lords, I would refuse this application.