El-Dinnaoui v Westminster City Council

This is an appeal from the order made by His Honour Judge Bailey sitting in the Central London County Court on 19th May 2011 when he dismissed Mr Fadi El-Dinnaoui’s appeal against the decision dated 24th February 2011 made by the Review Officer of the City of Westminster Housing Authority. That decision upheld the earlier decision of the housing officer that, as the appellant had refused an offer of accommodation which the Authority was satisfied was suitable for him, the Authority ceased to be subject to a duty under s. 193 of the Housing Act 1996 to secure that accommodation was available for occupation by the appellant.

The appellant and his wife (whom I hope, without wishing to be rude, I may refer to simply as “Mrs El-D”), came to the United Kingdom from Lebanon in 1997 and successfully claimed asylum. They were granted indefinite leave to remain in the United Kingdom in 2006 and have since been granted British citizenship.

The City of Westminster has been responsible for their housing since their arrival in the United Kingdom. Originally they were accommodated in hotels or hostels but on 14th January 2002 they were provided with a two-bedroomed flat for themselves and their two children at 52 Blackstone House, Churchill Garden, London SW1. This was a flat on the ninth floor of a tower block. A feature of the accommodation was that it was not obvious when looking out of the windows of that flat just how high it was: there was no direct view of the street below.

On 29th July 2002 the appellant completed a Medical Assessment Form which was required if he felt that his housing affected his disability or ill health or that of a member of his family. Mrs El-D was the household member claiming medical assessment. She gave this description of her “illness/disability/medical problem”, “depression, fear of heights and dizziness”. In answer to the request to describe how her illness affected her ability to live in her present housing and how her housing affected her illness she replied:

“This affects my depression because I live very far from friends and family and also the flat is very high up which affects my fear of heights and dizziness.”

She stated she was taking tablets for her migraines and Zopiclone which is a treatment for insomnia. She named her doctor as Dr Hege Mostad. The papers before us do not reveal the result of the assessment, or even if any assessment was in fact carried out. Nonetheless the salient feature to note is that she did complain of a fear of heights and dizziness.

On 17th December 2002 the appellant applied for a transfer, indicating that his housing preference would be for a flat on the ground or first floor. This time there was no direct reference to his wife’s fear of heights, but he did say:

“… We have recently been broken in our home, whilst my wife and children was inside. This has been a very traumatic experience for all of us, has left us all scared, anxious and suffering from panic attacks. We all feel very isolated and depressed and suffering from anxiety attacks, and being very nervous and scared living here on the estate.”

Once again we do not know what happened to that application.

It seems that after a third child was born to the appellant and his wife it was accepted by the housing authority on 29th January 2009 that the family was overcrowded and they were therefore put on the transfer list, their requirements being noted to be for a three-bedroomed house and as to floor level “up to the second floor without the service of a lift”. In March 2009 a three-bedroom property situated on the ground floor was offered to them but as the appellant was at that time suffering some disability which restricted his movement, that property was rejected and the rejection was eventually upheld after a review by the housing authority.

As a result by letter dated 2nd June 2010, the respondent offered the appellant accommodation at Flat 94 Parsons House, Hall Place, London W2 informing the appellant of the consequences of refusal.

This property is on the 16th floor of that block. The appellant and his wife viewed it on 4th June 2010. The windowsills of this property are three feet above floor level and consequently the view out of the window shows the street below. By the time Mrs El-D was leaving the flat she was in distress and she collapsed at the lift and an ambulance had to be called for her. She was taken to the Accident and Emergency Department of St Mary’s Hospital, her presenting complaint being “headache” and the working diagnosis being “anxiety state”. The hospital’s report to the doctor stated that the arrangements for further care were:

“Following treatment your patient was discharged. We have not made arrangements to see your patient again. We have advised them to attend your surgery and would be grateful if you could continue care.

Comments for the GP

Had a panic attack while on 16th floor. Has had lifelong fear of high buildings. Reassured home.”

As a result of this incident, the appellant refused to accept that the accommodation was suitable. On 8th June 2010 the respondent wrote to the appellant stating that it believed the property was suitable for him, that as he had refused the offer, its duty to him under s. 193 of the Housing Act 1996 had ended.

The following day the general practitioner, Dr Mostad, wrote as follows:

“This is to certify that the above mentioned [Mrs El-D] suffers from severe vertigo and fear of heights. She has recently been offered a transfer to a flat on the 19th floor where she is very exposed to this. She went to look at the flat and suffered an anxiety attack with a subsequent faint which needed an attendance to the A&E department at St Mary’s Hospital. Since the event she has been feeling shaky, panicky and fearful. I have treated her with diazepam. Due to the severity of her symptoms I would advise that she be offered alternative accommodation on a lower floor to avoid any further health problems in the form of panic attacks and anxiety.”

The appellant requested the Authority to review its decision. On 13th July Dr Mostad wrote a further letter stating that the appellant and his wife had been his patients since 2002. She wrote:

“[Mrs El-D] has a long-standing fear of heights. She also suffers from migraines and has recently been diagnosed with sciatica. Stress has been a major trigger for her migraines. [Mrs El-D] first presented with stress and migraines in 2003 but there is no specific mention in her records what the stressors were.

The recent viewing of the proposed 16th floor flat caused an acute attack of migraine, dizziness and associated panic attack which necessitated a visit to the local A&E department. At present the family lives on the 8th floor (sic) but in her present accommodation she is less exposed to heights than in the proposed 16th floor flat.

[The appellant and his wife] are not receiving any treatment for mental health problems at present and as far as I can see from their records there is no history of having been prescribed medication for such in the past. The only drug received by [Mrs El-D] was diazepam in connection with the acute anxiety she suffered after visiting the 16th floor flat.

I would recommend that alternative accommodation should be offered to the family as I that fear the move would exacerbate [Mrs El-D’s] medical condition and also have an unfavourable effect on [the appellant’s] back condition.”

On 20th September 2010 the Authority’s review support officer wrote to Dr Mostad seeking clarification and asking a series of questions. In Dr Mostad’s absence another doctor in the practice responded “with the benefit of her computerised notes”. He gave these answers to the enquiries.

“(1)

The only record relating to fear of heights is when she saw my partner Dr Hege Mostad on 8th June 2010, the consultation note stating “Due to be rehoused in 3 bedroom flat. Went to see it yesterday, it is on 16th floor. Felt shaky and faint, went to A&E department. Fear of heights.”

(2)

There are no particular tests that can be carried out to confirm a fear of heights.

(3)

I am afraid I am unable to answer this question on the information available to me, [the question being: “Are there any restrictions to what floor she can live on e.g. no higher than 2nd floor”].

(4)

Her past medical history dating from the beginning of her records in 2004 reveal hay fever, treated with anti-histamine, travel vaccinations … a referral to CBT (Cognitive Behavioural Therapy) in 2006 for a year long history of anxiety and panic attacks, with some symptoms of obsessive compulsive disorder. She was noted not to be depressed. Pregnancy in 2007 …

(5)

There has not really been any treatment for her condition.

(6)

She has only attended our surgery on one occasion, on 8/6/10 for her fear of heights and she has not seen us before or since, treatment being diazepam.

(7)

Please find enclosed the discharge summary from St Mary’s Hospital.”

There was, for wholly understandable personal reasons, some delay in processing the review but eventually on 25th November 2010 the Review Officer wrote suggesting that the answers to the questions seemed to be at variance with previous information that the Authority had received from her doctors. The Review Officer emailed Dr Mostad on 25th November 2010 noting that she had in her letter of 13th July stated that Mrs El-D had a long-standing fear of heights, whereas the reply to the questionnaire refers only to the visit to the surgery on 9th June. Dr Mostad was asked if she could clarify if there were any other references to fear of heights from her medical notes or in the alternative confirm how long she had been treating her for that condition. Her response was:

“The reason for this discrepancy is that I have personally been looking after [Mrs El-D] and her family since they registered with me in 2002. When I saw her in June 2010 she mentioned that she had suffered similar episodes of panic and anxiety when she moved to her current accommodation which is on the 8th floor [sic]. I have always known her as a trustworthy person. I had no reason to doubt this information. I therefore diagnosed her with acute anxiety attacks triggered by exposure to heights. If you have any further queries do not hesitate to contact me.”

On 4th January 2011 the Authority wrote explaining why they were minded to uphold the decision that the offer of flat 94 was suitable. The Review Officer indicated that although Mrs El-D would definitely have preferred a property on a much lower floor, she was not satisfied that she would have been unable to or was prevented from living on the 16th floor. In response the appellant’s solicitors referred to a CT scan taken in August 2003 when the diagnosis was migraine but the report also recorded “she is also quite depressed”. The solicitors said this was due to her anxiety from her fear of heights. They attached a note from the GP file dated 7th December 2006 recording that she had been suffering a year of anxiety and panic attacks and again the instructions were that this was due to her fear of heights. The solicitors stated:

“… Our client’s wife can see out of all the windows and balconies down to the ground. Therefore the panic attacks and anxiety will be much more in the new property than before.”

The decision letter which is the subject of this appeal was sent on 24th February 2012. The Review Officer set herself this test:

“Over the years I have dealt with numerous cases where clients have complained about their fear of heights. Some medical professionals believe that such a fear of heights is natural as it provides a defence mechanism in the body to ensure that people exercise greater caution when in potentially dangerous situations, for instance when climbing ladders or steep stairs. Nevertheless in dealing with these sorts of cases we are required to distinguish between a general dislike of heights and an irrational fear which would make any property above a certain floor level impractical. To help us determine this issue we have to consider any medical information but also look closely at the facts of the case to enable us to reach an informed decision.”

She concluded:

“In summary although I appreciate that Mrs El-Dinnaoui would definitely have preferred a property on a much lower floor (and did not like heights) I am not satisfied that she would have been unable to or was prevented from living on the 16th floor because of this. This is because the evidence on her file has led me to believe she was able to live on a high floor in spite of her condition. I acknowledge that like many people who are not keen on heights Mrs El-Dinnaoui may have found the property unsettling at first but based on the information available to me it is reasonable to conclude that she would have settled in the property with time. In reaching this conclusion I have taken into account that although Mrs El-Dinnaoui was not keen to live on the 9th floor (when she moved into her current property) she was able to settle in the property and has occupied it for close to 9 years. Furthermore it is not uncommon for people, who live in high rise buildings (whether or not they dislike heights) to use thick nets and curtains or blinds to camouflage the view from the window. I do not feel that this would have been an impractical solution for Mrs El-Dinnaoui. In some of the cases that I have dealt with there is usually a restriction on the floor level that can be offered to a person suffering from a phobia of heights, however we have received no such information in this case. To me this is an indication that Mrs El-Dinnaoui’s case was not sufficiently severe to warrant this.”

As a result, as already set out, the Council have concluded that they are no longer under any duty to provide accommodation for this family.

The appellant duly exercised his right under s. 204 of the Housing Act 1996 to appeal to the County Court.

Two points were taken on the appellant’s behalf in the court below: first it was submitted that the Review Officer failed to give any or any adequate consideration to the risk of a recurrence of the panic attack suffered when Mrs El-D visited the property and secondly that the Review Officer should have made further enquiries into whether Mrs El-D did in fact suffer a phobia of heights. As to the former, Judge Bailey found that while the Review Officer did not use the word ‘recurrence’ or pose the question, ‘what is the risk of further panic attack?’, she clearly did look to the future for Mrs El-D in the 16th floor flat and in doing so covered the risk of recurrence. As to the latter point he concluded that on the basis of the medical material before her, he could not properly say that she should have undertaken further enquiries. She had investigated the matter carefully with the general practitioners and, having properly taken into account the general practitioners’ view of the fact that there had been a panic attack, set that against the fact that there had been no previous attendances at the GP’s surgery for similar attacks or generally any record in the GP records about there being a fear of heights. So he dismissed the appeal.

Mr Paul Skinner who now appears for the appellant put his case in this way:

“By way of summary, the appellant submits that the judge was wrong to hold that the decision was lawful. It was unlawful for the following overlapping reasons:

a.

In the light of the medical evidence before her, the Review Officer made insufficient inquiries as to whether Mrs El-Dinnaoui had suffered from an irrational fear or general dislike of heights to enable her properly to answer that question.

b.

Further or alternatively, the Review Officer failed to answer that question.

c.

The Review Officer’s conclusion that Mrs El-Dinnaoui suffered a general dislike of heights (if that is the conclusion that was reached) was in the circumstances irrational.”

Mr Ian Peacock, who now appears for the Council, submits that it is clear from the decision letter that the Review Officer concluded that Mrs El-D was a person with a general dislike of heights rather than an irrational fear which would make any property above a certain floor level impracticable and that was a finding she was entitled to make. Further, it is for an Authority to decide what enquiries to make and the court should not intervene unless the decision of the Authority not to make further enquiries was one no reasonable Authority could have made.

As to the sufficiency of the enquiries made by the Review Officer, I prefer the Authority’s argument. The test has become established and after a careful review of the authorities Brooke LJ was able to state it in Cramp v Hastings BC [2005] HLR 48 at [8] as follows:

“it was for the council to judge what inquiries were necessary, and it was susceptible to a successful challenge on a point of law if and only if a judge in the county court considered that no reasonable council could have failed to regard as necessary the further inquiries suggested by the appellants' advisers.”

In that case, as in this, those acting for the applicant made no specific request of the Review Officer to undertake any further enquiry. Here the appellant’s solicitor responded to the “minded-to” letter simply by reiterating the history. Bearing in mind that the review officer in November sought clarification from Dr Mostad it cannot be said that no reasonable Council could have failed to regard as necessary seeking an independent further medical report.

As to the general challenge that the decision was irrational, the law has now recently been authoritatively stated in Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7, [2009] 1 WLR 413 where Lord Neuberger of Abbotsbury said at [50]:

“Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.”

The Review Officer’s central conclusion was that it was reasonable for her to conclude that Mrs El-D would have settled in the property “with time”. That conclusion fails to give proper weight to the medical evidence. One starts with the fact, for it cannot reasonably be disputed that this did happen, that Mrs El-D collapsed during her visit to the flat and was taken to hospital. The reason for that given in the comment to the GP was that she had had a panic attack while on the 16th floor and then the discharging doctor adds, “Had lifelong fear on high buildings.” I have added the emphasis. She had a panic attack which caused her to collapse. It needed medical treatment. See Dr Mostad’s report of 9th June 2010. “She went to look at the flat and suffered an anxiety attack with a subsequent faint … Since the event she has been feeling shaky, panicky and fearful. I have treated her with diazepam.” The important words follow:

“Due to the severity of her symptoms I would advise that she be offered alternative accommodation on a lower floor to avoid any further health problems in the form of panic attacks and anxiety.” (I have added the emphasis).

This is a medical opinion, repeated by Dr Mostad, and there is no countervailing evidence from a medical expert to refute it. The Review Officer is simply not entitled to disregard it. Dr Mostad repeats these matters in her report of 13th July. She refers to “a longstanding fear of heights”. He describes the result of the viewing as causing “an acute attack of migraine, dizziness and associated panic attack.” She repeats:

“I would recommend that alternative accommodation should be offered to the family as I fear the move would exacerbate Mrs El-Dinnaoui’s medical condition.”

Finally, if more is needed, Dr Mostad confirmed on 26th November that she had “diagnosed her with acute anxiety attacks triggered by expose to heights.” How, in the teeth of that medical evidence, could one rationally conclude that Mrs El-D simply had “a general dislike of heights” as opposed to “an irrational fear which would make any property above a certain floor level impractical”?

The general thesis of the decision is that having got used to living on the 9th floor, she would learn to cope with the 16th floor. The Review Officer ignores the central point that the view from the current flat does not show the road below as it clearly does from the 16th floor, so starkly in fact that the Review Officer observed when she visited the property herself not only that the windows were about 3 feet above floor level but that, as she acknowledged herself, “I noted that the current occupant had used nets and curtains which cover the windows and I think prevented one from having a full view outside the window.” In her decision letter she refers to the use of “thick nets and curtains or blinds to camouflage the view from the window.” Is it practical to live behind drawn curtains?

The history of this family invites only one conclusion. Within 6 months of moving into the flat on the 9th floor Mrs El-D was seeking a medical assessment for “depression, fear of heights and dizziness” because “the flat was very high up which affects my fear of heights and dizziness”. Dr Mostad confirmed that in 2002 she had complained of the effect living at that height had upon her. When the family applied for a transfer they indicated that the type of property they would consider was a ground or first floor flat. Throughout her time at the current flat Mrs El-D has suffered migraines. The medical evidence was that a stressor for that condition was the anxiety caused by living at that height. Her collapse when viewing the 16th floor flat was all but inevitable.

I am driven, therefore, to the conclusion that the finding that this 16th floor flat was suitable for this family was outwith the band of decisions available to the Review Officer and was thus, in the legal sense, perverse. If the Review Officer doubted the reliability or veracity of Mrs El-D she needed to arrange for a further medical opinion to be obtained. I would therefore allow the appeal and quash the decision.

I agree.

I also agree.