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:

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:

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:

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:

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

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:

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):

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:

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:

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:

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:

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:

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.