Dostenko v City of Westminster

This is an application by Mr Vjacheslav Dostenko for permission to bring a second appeal against the judgment of HHJ Ryland sitting at the Central London County Court on 30^th August 2007. HHJ Ryland dismissed Mr Dostenko’s appeal against the decision made on a review under s.202 of the Housing Act 1996 of the respondent local authority’s determination that he did not have priority need for accommodation by virtue of s.189 of the 1996 Act.

This is an application for permission to bring a second appeal, for which the applicant must show that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear it.

The only provision that can assist Mr Dostenko is s.189(1)(c), conferring a priority need for accommodation on “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside”. The meaning and effect of this provision have been discussed in a number of cases, the applicable test being established by R v. Camden LBC ex parte Pereira (1999) 31 HLR 317. Hobhouse LJ, with whom Waller and Walker LJJ agreed, stated the test as follows:

“The council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reason. Thus, the council must ask itself whether Mr Pereira 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. The application of this test must not be confused with the question whether or not the applicant is at the material time homeless. If he is not homeless, the question whether he is in priority need becomes academic. The question under paragraph (c) can only arise if (or on the assumption that) he is at the material time homeless. A particular inability of a person suffering from some handicap coming within paragraph (c) to obtain housing for himself can be an aspect of his inability as a homeless person to fend for himself. Such an individual may suffer from some mental or physical handicap which makes him unable to obtain housing unaided and thus makes him unable to cope with homelessness in a way which does not apply to the ordinary homeless person. But it is still necessary, as is illustrated by the decided cases, to take into account and assess whether in all the circumstances the applicant’s inability to cope comes within paragraph (c). It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable.”

In Osmani v. Camden London Borough Council [2004] EWCA Civ 1706, [2005] HLR 22, a number of conclusions about paragraph 189(1)(c) were stated in [38] by Auld LJ, with whom Judge and May LJJ agreed. For present purposes, it is necessary to draw attention only to the observation that the decision whether an applicant has demonstrated a priority need is likely to be highly judgmental in its application in a local context of a national scheme of priorities (paragraph (4)) and, see paragraph (7), the test is to be applied on the assumption that the applicant has become or will become street homeless. In this assessment regard should be had to the particularly debilitating effects of depressive disorders and the fragility of those suffering from them if suddenly deprived of the prop of their own home.

In the present case, it appears that Mr Dostenko was first interviewed on 30^th January 2007 following his eviction from rented accommodation. His application to the local authority was completed on that day, and he was referred for an assessment of his vulnerability to a housing officer, who obtained medical advice in the light of Mr Dosenko’s own declarations together with previous psychiatrist’s reports. On 1^st March 2007, Mr Dostenko was informed that he did not have a priority need for housing, with the consequence that the local authority’s duty to house him under s.188 of the 1996 Act came to an end, and he was obliged to leave the hostel where he had been temporarily accommodated.

He sought a review of this decision, and on 16^th March 2007 he set out his reasons for seeking the review in a letter, in which he makes it clear that since living the hostel on 8^th March 2007 “I have not place where to sleep, I stay on the street, my health condition get too bad, I feel myself like nobody want help me, and I want to kill myself”. He approached solicitors, and it appears that he entrusted them with the duty of sending a new medical report to the local authority, which they did on 29^th March 2007. We were shown the records of Mr Dostenko’s communications with the local authority which had been before HHJ Ryland. These reveal that on 25^th April 2007 Mr Dostenko called stating that he was still waiting for an acknowledgment letter in respect of his request for a review and that he wanted the letter to be sent to his solicitors. This appears to have been done and the so-called “regulation 6” letter was sent to the solicitors as well. One copy had been sent to the hostel which had already been quitted by Mr Dostenko.

Mr Dostenko chased the review on 1^st May and was told that it would take another two or three weeks, and on 8^th May a letter under regulation 8(2) was sent to the solicitors by fax. This is a so-called “minded to” letter and is sent, we understand, when the view has been formed that the original decision was flawed but that the reviewing officer was still minded to uphold it. This letter identifies a failure to take account of the possibility of vulnerability by reason of alcohol abuse as the deficiency in the initial decision, but says this:

“. . . Having considered all of the medical information on your client’s file, there is nothing to suggest that he has been diagnosed as suffering from an ‘enduring or severe mental illness’. There is also evidence to suggest that he is currently receiving support from his psychiatrist and social worker and I have also taken into account that no information has been supplied to show that he would be incapable of receiving this support should he become street homeless.”

This letter requests a response by 11^th March 2007. Accepting, as for my part I do, that this is an obvious misprint for 11^th May 2007, it gives the solicitors a short period only in which to respond. They took no steps to do so, and on 11^th May 2007 the review decision was issued. I should say at once that I consider this to be a careful review in which the decision-maker carefully considers and applies the Pereira test. She directs herself to consider the position that Mr Dostenko would be in, were he to become homeless. She says this:

“With regards to Dr Antonio[l]i’s comments that about the likely deterioration of your client’s mental health should he become street homeless, the information available to me strongly shows that your client is currently receiving appropriate treatment and support for his depression. Specifically I note that he has been receiving support from his GP, psychiatrist and social worker. Therefore in spite of Dr Antonioli[’s] comments, based on the information available to me I am satisfied that your client could still continue to receive support from his support network even whilst homeless. In reaching this decision I have taken into account that no information has been provided to suggest that your client would be unable to access his current support if homeless.”

The special reason why Mr Dostenko might be entitled to be treated as having priority need is summarised in the following paragraph:

“In spite of his depression, and alcohol abuse, and all his other circumstances (including the fact that he has lost contact with his family in Belarus) your client has shown himself to be a person who is just as able to fend for himself as any ordinary person. He has been able to represent himself effectively in housing applications with our local authority and has also been able to seek out and engage legal representation upon receiving an adverse decision from the Council. He has demonstrated both his willingness and ability to secure alternative housing for himself by engaging with officers at the Housing Options Service with a view to securing a hostel placement. Furthermore the medical information available to me shows that your client has been able to access and engage with appropriate support and treatment for his mental health and has been fully co-operative with the ongoing treatment into his mental health.”

It is quite clear that the decision-maker was not aware that Mr Dostenko had been street homeless since 9^th March.

Mr Russell, who appears on behalf of Mr Dostenko, submits that in these circumstances there was a duty upon the decision-maker to ascertain what effect two months’ homelessness had had upon Mr Dostenko. In this way, any information tending to suggest that Mr Dostenko was less able to cope with circumstances than the ordinary run of men sleeping rough in London might have been revealed. He submits that, given that it is highly material that a vulnerable person has spent two months sleeping rough, the case raises an issue of principle whether any reasonable decision-maker would wish to be informed of how he had fared during that period. As I understand it, he contends that the decision-maker’s failure so to inform herself vitiates the decision.

There is no doubt that there is a duty on a housing officer to make the necessary enquiries and, in the event of a review, on a senior housing officer as well – see Cramp v. Hastings BC [2005] HLR 48. The scope of this duty will obviously vary in the light of the particular circumstances of the case, but this Court has stated that the test in every case is whether no reasonable council would have refrained from making the further enquiries under consideration.

In my judgment, the two most relevant factors in the present case are (1) that Mr Dostenko was represented by solicitors who did not at any stage suggest that further enquiry be made of Mr Dostenko personally and who did not make further representations concerning his street homelessness and its effect upon him; and (2) that Mr Dostenko had himself been in contact with the local authority after his initial assessment and throughout the review process and made no observations upon the effect that his street homelessness was having upon him. In my view, to impose upon the decision-maker a further obligation to make enquiry as to the effect of the term of homelessness on Mr Dostenko is to go well beyond the scope of the duty to which I have referred.

The judge expressed himself in this way:

“23.

. . . I think the facts were correct at the time when she made her decision, although it was true to say that the fact of street homelessness was not taken absolutely and set out in her decision that this man was street homeless. Nevertheless, it was part of her duty to look to see what the effect would be when he was street homeless, and I think that was what she did.

24.

I do not think she can be criticised for not saying, well, he has been street homeless now for X number of days and the effect is this, that and the other. I think that would have been putting too much of a burden upon her. I further think that she was not under an obligation to make further enquiries. What further enquiries she would make and of whom I am not too sure. If there was evidence of the nature, for example, that was contained in the statement dated 17^th August of Mr Mullem, it may well be a different situation might have arisen, because she would then have been clearly put on notice of a dramatic deterioration or a material deterioration in the health and effect of street homelessness on this particular Appellant. There was no such evidence put before her. I think it would have been far too high a burden to expect that every local authority need go into the situation where there is not brought home to them explicitly a piece of information which would require them to make further enquiries in order to answer the question of vulnerability in a full and proper manner. I do not think that obligation was cast upon her. I do not think, therefore, that she can be said to have been acting in a manner that was perverse or irrational if she did not make those enquiries.”

In my judgment, this cannot be said to be an unreasonable endorsement of an unreasonable approach by the reviewing officer. It follows that there is no issue of principle to which this case gives rise, and that there is no other compelling reason for a Court of Appeal to hear the second appeal. Accordingly, I would refuse permission for a second appeal in this case.

I agree that permission to appeal should be refused for the reasons given by Pumfrey LJ. I would only add this.

The application to this court has to concentrate on whether the decision of the local housing authority in relation to a potentially vulnerable man who is homeless was a lawful and proper decision on 11^th May 2007, the day it was made. That may be a quite proper question to debate and decide if there is a real point of principle; but, even so, Mr Dostenko is, so we understand, a person living rough who in common humanity needs help.

In May 2007, Mr Dostenko had been living rough for 2 months during late spring and early summer. The application to this court was heard in the first week of December 2007 – that is in the winter – and we are told that he has now been living rough for 8 months. For all this court knows, Mr Dostenko’s health and physical ability, and importantly his comparative ability to cope, may have changed for the worse, or even perhaps for the better, since May 2007. But if for the worse, his basic human needs may not be best served by lawyers and judges debating the now largely historic question of whether a decision in May 2007 properly took account of the effect of Mr Dostenko’s then 2 months living rough on the street in a period of comparatively warm weather.

I say that the question is largely historic because success on an appeal to this court could only result in requiring the local housing authority to reconsider their decision. They could only do this on up to date information. Substantially the same could have been achieved much earlier if Mr Dostenko had been advised to make a fresh application for assistance to the local housing authority. To make such an application with any prospect of success, he would have to show that his comparative ability to cope had indeed significantly deteriorated. But an alleged failure to inquire into that very matter is the nub of the proposed appeal to this court. So the matters to be considered by the local housing authority would be largely the same in each instance.

In short, the proceedings in this court seem to me to have the characteristic of a lawyer’s exercise, undertaken in good faith no doubt, but with little pragmatic regard for the very basic personal wellbeing of the potentially vulnerable homeless person whose case it is. It was not to my mind encouraging that counsel for Mr Dostenko did not appear to have much in the way of instructions about what is happening to Mr Dostenko at the moment.

I agree with both judgments. These may be cited.