Banks v Royal Borough of Kingston-Upon-Thames

Geoffrey Banks is a fifty-one-year-old man with alcohol-related liver cirrhosis, alcoholism, depression and asthma. He is divorced and has a young son with whom he has contact. In a decision dated November 1, 2006 the Homelessness Assessments Team of the Royal Borough of Kingston-Upon-Thames (“the Council”) found that Mr Banks, who was then homeless, did not have a priority need for accommodation. Shortly afterwards he rented a small room in a house, and made a fresh application to the Council on the basis (inter alia) that his medical condition made it impossible or difficult for him to live there. In February 2007, the Council issued a decision letter refusing his application on the ground that he was not homeless or threatened with homelessness.

Mr Banks’ landlord gave him notice to quit. Mr Banks exercised his right to request a review of that decision. On review the Council varied the original decision to a decision that Mr Banks was homeless in light of the notice to quit. But the decision that the Council did not have a duty to house Mr Banks was upheld on the ground that Mr Banks did not have a priority need.

Under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999 No 71) (“the 1999 Regulations”), Regulation 8(2), there is a right to make representations where the reviewing officer considers that there is a deficiency in the original decision, but is minded nonetheless to make a decision which is against the interests of the applicant. Mr Banks was not given an opportunity to address the issue of priority need after the reviewing officer had decided that the original finding that Mr Banks was not homeless could no longer stand. This appeal is said to raise (among other questions) a question of principle whether, when the facts change, the original decision can be said to contain “a deficiency”. In fact, although the point does arise and is by no means easy, it is, as I shall indicate, virtually devoid of any practical significance in the present case.

This is Mr Banks’ appeal against the decision of HHJ Crawford Lindsay QC made on November 22, 2007 at the Central London County Court. That, in turn, was an appeal brought under section 204 of the Housing Act 1996 by Mr Banks, to challenge a decision of the Council, made on March 20, 2007, that he was not a person with a priority need for housing within the meaning of section 189 of the 1996 Act, in particular that he was not vulnerable within the meaning of section 189(1)(c).

He applied to the Council as homeless in October 2006. Notes taken by an officer of the Council on October 13, 2006 recorded, inter alia, that Mr Banks was an alcoholic, that he said he was depressed and that he had been taking anti-depressants but his doctor took him off them after he overdosed on them. He had been suicidal, but was better and not suicidal at the time the notes were made.

Following a request in standard form dated October 13, 2006, from the Council for information about his medical history (including details which would allow the Council to make an assessment regarding vulnerability), Dr. Parekh of Mr Banks’ G.P. surgery wrote to Mr Nicholson, the Homelessness Assessments Officer, to say that Mr Banks had, over the previous months, been very depressed, had lost a considerable amount of weight and had been on antidepressant tablets. The letter also stated that Mr Banks had been drinking heavily, had been referred for community detoxification and that he had attempted an overdose the previous December; and that Mr Banks suffered from considerable agitated depression which, together with his asthma, had flared up in the last few months and that he had been attending regularly at the surgery. The report letter stated that Mr Banks remained very vulnerable and requested that the Council urgently consider him for re-housing.

In its decision letter pursuant to section 184 dated November 1, 2006 the Council found that Mr Banks did not have a priority need. The letter concluded that Mr Banks was reasonably able to cope with finding and maintaining his own accommodation and that he was considered to be no less able to find for himself than his peers, so that injury or detriment would not result, when a more vulnerable person would not be able to cope without harmful effects. No request for a review of the decision was made by Mr Banks.

Dr. Parekh’s letter was stamped as seen by the Council’s Independent Medical Adviser, Dr. Hinton, on November 14, 2006, almost 2 weeks after the date of the section 184 decision. Dr Hinton filled in a medical assessment form on November 14, 2006, recording that he had seen Dr. Parekh’s letter stating that Mr Banks drank heavily, and commenting that there was evidence of mental health issues as well as alcohol misuse and asthma. However, he noted that there were no details regarding prognosis or referral to the Community Mental Health Team. Dr. Hinton advised the Council to obtain more details and review the position. He stated that the Council could fax him if it had concerns but “but not in priority need at this stage.” He ticked the box on the form which indicated that further information was required.

On November 3, 2006 Mr Banks entered into a licence agreement for occupation of 86 Blagdon Road, New Malden, Surrey, KT3 4AE for a term of six months, commencing on November 3, 2006. He rented a small room, and six other people were living in the house.

Mr Banks applied again as homeless to the Council on February 8, 2007. In the Homelessness Application Form completed by the Council on the same date, it is stated that Mr Banks had medical problems and had a history of mental illness/bizarre or disorientated behaviour. It also recorded that he was depressed. In support of his application, Mr Banks provided the Council with a letter he had written on February 5, 2007, dealing with the condition and suitability of the premises in which he was living, and the effect that this had on his health.

Notes taken by an officer of the Council on February 8, 2007 recorded inter alia, that Mr Banks was sharing accommodation with seven people. Mr Banks reported that he was on diuretic tablets which might make him want to go to the toilet frequently but it was inconvenient to do so with so many people using one toilet. Further, Mr Banks had his son to visit at the premises and the living conditions were not ideal.

The initial assessment form of the same date indicated that he was not homeless.

On February 8, 2007, the Council also requested (again in standard form) the same information from Mr Banks’ G.P. regarding his medical history as it had done in October 2006.

A report dated February 13, 2007 on Mr Banks was completed by the Kingston Community Drug & Alcohol Team. The report confirmed that Mr Banks was receiving treatment for alcohol dependency and was making good progress. The report further stated, inter alia, that Mr Banks had identified two triggers which may cause him to relapse: his home environment and lack of access to his son. The letter concluded by expressing the view that if Mr Banks were to relapse from alcohol, his physical, mental and emotional health would deteriorate significantly.

On February 14, 2007 Dr. Davidson of Mr Banks’ G.P. surgery wrote to Mr Nicholson to say that Mr Banks had a history of alcohol related liver cirrhosis, alcoholism, depression and asthma. He had quite severe medical problems as well as depression, he was seeing a doctor at Kingston Hospital in relation to his liver disease and he had recently had an inpatient admission due to a decomposition of liver function. The letter expressed the view that if Mr Banks was not compliant with his medication and specialist review then his condition could deteriorate rapidly and possible be fatal. Further, as a result of Mr Banks’ medication, which promoted urination and had a laxative effect, he required easy access to a bathroom. The G.P. also mentioned that Mr Banks had told her that he did not have much access to a kitchen and his medical conditions meant that it was important that he ate a healthy diet. There was a further concern that his room was cold and damp and this was potentially a problem in an asthma patient and could predispose him to developing a community acquired pneumonia. The G.P. noted that Mr Banks’ son was his “driving force” in his desire to give up alcohol and if his son could not stay with him at the premises, as the landlord had refused to let his son stay, this may result in a deterioration in Mr Banks’ condition. The letter concluded by stating that if the Council required any further information it should not hesitate to contact Dr. Davidson.

The notes attached to the Homelessness Application Form stated that Mr Banks’ file was left for Dr. Hinton on February 20, 2007 but that he had not read it. They also state that at some later time, Dr. Hinton rang the officer investigating Mr Banks’ case and said that Mr Banks was not vulnerable but that he might get into a higher band on the housing waiting list.

On February 23, 2007, the Council issued a letter pursuant to section 184, which found that Mr Banks was not homeless or threatened with homelessness: the facts that he was in shared accommodation, and that his condition meant that he was using the toilet more than normally and that the toilet was shared with a number of people, was not enough to make him homeless.

On February 27, 2007 the Council received Mr Banks’ request for a review of the decision, and notified him of his right to make representations and also of his right to make representations if the Council considered that there was an irregularity in the decision and was minded nonetheless to make a decision which was against his interests.

On February 28, 2007 Dr. Hinton completed a Medical Assessment Form for the purpose of the Housing Needs Register which stated that Mr Banks did have medical priority, had moderate physical disability and mild mental health problems. Dr. Hinton commented that an HMO (House in Multiple Occupation)-type environment might affect matters and he agreed a low medical priority for self-contained accommodation.

On March 6, 2007 Mr Banks telephoned Mr Nicholson to say that he had been given 28 days’ notice by his landlord to quit. Mr Nicholson visited Mr Banks at home the next day. He noted the condition of the premises and Mr Banks showed the officer a packet of anti-depressants his G.P. had given him. Mr Nicholson was told that the notice to quit had been given verbally.

At about this time, the landlord (Mr Young S Kim) wrote a letter (which bears the date March 3, 2007), stating:

“Please accept this letter as a written notification that I wish to give you one months notice to vacate your room at the above address as per the notice period stated in our Agreement dated 3^rd November 2006.

It is becoming increasingly obvious that the accommodation is not suited to your needs regarding both; your current health problems and your need to have your son stay here during your access periods.

Please vacate the property by 4^th March [sic] 2007 taking all of your possessions and leaving the room in a clean and tidy state for the next occupier.”

On March 13, 2007 Dr. Hinton completed a Medical Assessment Form, which noted that the information assessed was Mr Banks’ file, the letter from Kingston Community Drug & Alcohol Team, the home visit observations, and the Housing Needs Register medical assessment dated February 28, 2007. He noted the documents and stated that he agreed that Mr Banks’ current accommodation was not ideal but it was reasonable for Mr Banks to remain, applying the relevant banding. The risk of alcohol relapse was acknowledged but this had been factored into the banding.

The Council’s Homelessness Manager, Jason Carey, issued a decision on review dated March 20, 2007. His decision varied the original decision to a decision that Mr Banks was homeless in light of the notice to quit but upheld the decision that the Council did not have a duty to house Mr Banks. Mr Carey based that decision on a finding that Mr Banks did not have a priority need: inter alia, he found that Mr Banks did suffer from alcohol abuse but that he had been abstinent in recent months; he found that alcohol misuse alone did not render someone vulnerable; he found that Mr Banks had been diagnosed with depression, that he had been prescribed a standard dose of medication (citalopram 20mg) and that his depression was a result of his social circumstances in that he was unable to see his son; he found that neither his depression nor his other medical conditions would impair his ability to maintain himself so that he would be at risk of harm or injury; he found that on the basis of the information held there was no evidence to support the proposition that Mr Banks would be unable to fend for himself if street homeless, so that he would suffer injury or detriment; finally, he found that from the information provided, there appeared to be no other ground to suggest that Mr Banks was a vulnerable person or in a priority need category within the meaning of the Housing Act 1996, as amended.

On April 2, 2007, Dr. Davidson, having been provided with a copy of the review letter by Mr Banks, wrote to the review officer stating that she had tried to make contact the week before telephone but was unable to. The letter said: “While I appreciate that alcohol, depression and asthma do not put him at risk, his diagnosis of alcohol related liver cirrhosis does put him at risk. This diagnosis carries with it considerable mortality and morbidity with a mortality rate of 65% at 5 years if the patient were to continue drinking, going down to 30% mortality rate at 5 years even with abstinence from alcohol. This is a very serious condition and I am concerned that if Mr Banks were to be street homeless, his health would deteriorate and put him at significant risk.”

Mr Banks appealed to the County Court. The grounds included these: (1) the Council was bound (but failed) to implement the requirements of Regulation 8(2) of the 1999 Regulations because the Review decision upheld the original decision but on different grounds; (2) even if Regulation 8(2) was not applicable, the rules of natural justice required that Mr Banks should have been given an opportunity to comment on those matters which the Council was minded to weigh against him, where those matters were not part of the original decision; (3) the Council failed to make any or any adequate inquiries into Mr Banks’ medical conditions.

On November 22, 2007 HHJ Crawford Lindsay QC dismissed each of Mr Banks’ grounds of appeal. He rejected the argument made on behalf of Mr Banks that the original decision (February 23, 2007) was defective and unlawful. He concluded that, although that decision was short, it was legally sustainable. The judge held that Regulation 8(2) of the 1999 Regulations comes into play only where the original decision can properly be attacked as defective. He concluded that in a case where the original decision is not open to criticism but is superseded by later events, Regulation 8(2) does not apply.

He also rejected the argument that the rules of natural justice required that an applicant in the position of Mr Banks should be told the substance of any potentially adverse decision against him, and should be given an opportunity to comment upon it. The judge accepted the argument for the Council that this would merely be reintroducing the requirements of Regulation 8(2) by another route.

As regards the third ground of appeal, the judge decided that it was for the Council to decide the scope and breadth of the inquiry process, and the court would only interfere if it were satisfied that no reasonable local authority could have failed to make those inquiries. A review of the facts showed that no such finding could be made, and that appropriate enquires had been made of Mr Banks and his medical advisers.

The duties of local housing authorities towards the homeless are set out in the Housing Act 1996, Part VII, as amended. If an authority has reason to believe that a person may be homeless or threatened with homelessness, it is under a duty to make such inquiries as are necessary to satisfy itself whether or not the applicant is eligible for assistance and what, if any, duty is owed to him: section 184(1).

In the exercise of its functions relating to homelessness and the prevention of homelessness, a local authority must have regard to any guidance as may be given by the Secretary of State: section 182. The current guidance (applicable in these proceedings) is the Homelessness Code of Guidance for Local Authorities, July 2006 (“Code of Guidance”).

If a local authority has reason to believe that an applicant may be homeless or threatened with homelessness, it must make such inquiries as are necessary to satisfy itself as to whether the applicant is eligible for assistance and if so, whether any duty and if so what duty, is owed to him: section 184(1), on which see, e.g. Cramp v Hastings BC [2005] EWCA Civ 1005, [2005] HLR 48, at [10] and [58].

If a person is not homeless, no duty is owed. If he is homeless and not in priority need, the authority must provide him with advice and assistance: sections 190(3), 192(2). If he is homeless and in priority need but became homeless intentionally, the authority must provide him with advice and assistance and secure accommodation long enough to give him a reasonable opportunity of securing his own accommodation: section 190(1), (2). If he is homeless, in priority need and did not become homeless intentionally, the authority must secure accommodation for him: section 193(1), (2).

A person has a priority need, inter alia, if he is “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason …”: section 189(1)(c), on which see R v Camden LBC ex p Pereira (1997) 31 HLR 317, at 330; Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 22, at [38]; Shala v Birmingham CC [2007] EWCA Civ 624; [2008] HLR 8. In cases where vulnerability is claimed for medical reasons it may be a necessary part of the authority’s inquiry processes to obtain, and consider, medical evidence. But the ultimate decision remains one for the authority: Osmani v Camden LBC at [38(8)]. In Crawley BC v B (2000) 32 HLR 636 (CA), at 638, it was held that it was not irrational for an authority to decide not to consider whether an applicant is intentionally homeless when it decides that he does not have a priority need; it is open to an authority to conserve resources by not embarking on an inquiry that would be redundant.

The authority must notify the applicant of its determination of the application in writing and, so far as any issue is decided against his interests, inform him of the reasons for it: section 184(3).

By section 202 the applicant has a right of review against certain decisions, including “any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness)”: section 202(1)(b).

The Secretary of State is empowered to make provision by regulations as to the review procedure under section 202, and as to the circumstances in which an applicant is entitled to an oral hearing and to representation: section 203(1), (2). The applicant must be informed of the decision on the review: section 203(3).

The review procedure is governed by the 1999 Regulations. By Regulation 6(2), when a request for a review has been received, the local authority must: (a) notify the applicant that he, or someone acting on his behalf, may make representations in writing to the authority in connection with the review; and (b) if it has not already done so, notify the applicant of the procedure to be followed in connection with the review.

The reviewing officer is not simply considering whether the initial decision was right on the material available when the decision was made. He may have regard to information relevant to the period before the decision but only obtained thereafter and to matters occurring after the initial decision: Mohamed v Hammersmith & Fulham LBC [2001] UKHL 57, [2002] AC 547, at [26].

By Regulation 8(2), if the reviewing officer “considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues”, the reviewing officer

“shall notify the applicant (a) that the reviewer is so minded and the reasons why; and (b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.”

The Code of Guidance states, at paragraph 19.13, that deficiencies or irregularities for the purposes of Regulation 8(2) would include: “(i) failure to take into account relevant considerations and to ignore irrelevant ones; (ii) failure to base the decision on the facts; (iii) bad faith or dishonesty; (iv) mistake of law; (v) decisions that run contrary to the policy of the 1996 Act; (vi) irrationality or unreasonableness; (vi) procedural unfairness, e.g. where an applicant has not been given a chance to comment on matters relating to a decision.”

An applicant dissatisfied with the decision on review may appeal to the county court on any point of law arising from, inter alia, the review decision: section 204(1).

The appeal to the county court is, in effect, a judicial review, that is, the court is not in the position of primary fact finder, but is required to examine the decision of the authority in order to determine whether it was made lawfully. It includes not only matters of interpretation, but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review: Runa Begum v Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430, per Lord Bingham at [7].

The fact that a statutory procedure (related to fairness) may not apply is not decisive of whether there has been compliance with the obligation to act fairly: Hall v Wandsworth LBC [2004] EWCA Civ 1740, [2005] 2 All ER 192, at [40].

Mr Banks appeals on three grounds: (1) the Council acted unlawfully in failing to comply with the procedures contained in Regulation 8(2), and/or the judge erred in finding that Regulation 8(2) was not engaged as there was no deficiency in the section 184 decision; (2) the Council failed to act in accordance with the principles of natural justice in that: (a) it failed to notify Mr Banks that it was considering whether it owed him a duty pursuant to section 190, section 192 or section 193 and whether, therefore, he had a priority need within the meaning of section 189(1); and/or (b) the information before the Council at the time it decided that Mr Banks did not have a priority need within the meaning of section 189(1) was insufficient for the purpose of ensuring Mr Banks had been heard on that issue, and/or the judge erred in finding that the principles of natural justice had been complied with in such circumstances; (3) the Council failed to make any or any adequate inquiries into Mr Banks’ medical conditions before reaching a decision on the question of priority need and/or the judge erred in finding that the Council’s inquiries were sufficient.

I agree.

I agree also.