Evans v Royal Borough of Kensington

LORD JUSTICE TOMLINSON:

This isa renewed application for permission to appeal against a decision contained in a reserved judgment of Mr Recorder Peter Susman QC delivered on 15 July 2015 in the Central London County Court. The Recorder was there dealing with a statutory appeal under the Housing Act 1996 against a decision of the Respondent housing authority, Kensington & Chelsea, that the Applicant had become intentionally homeless within the meaning of section 191(1) of the Housing Act 1996 in circumstances where she had been evicted from her room at a hostel run by the St Mungo’s charity at 37 Chepstow Villas, London W11, which is a hostel specifically intended to provide support for women with substance abuse and mental health issues. There is sadly no doubt that the Applicant suffers from substance abuse problems and I understand that she also suffers severe depression and has done for many years.

It will be apparent therefore that this is an application for permission to bring a second appeal, and in those circumstances it is incumbent upon the Applicant to indicate or to identify an important point of principle or practice; alternatively, some compelling reason why the appeal should be heard.

I have had the benefit of sustained and cogent submissions from Ms Victoria Osler, who has represented the Applicant throughout and who has prepared both a skeleton argument and a written statement for the purposes of today’s hearing and has addressed me with great lucidity for 20 minutes or so this morning. The difficulty which Ms Osler faces is that all of the points which she seeks to raise at bottom amount to a challenge to the factual determination made by the council when it came to its review decision in January of 2015 and her grounds do not raise points of principle or practice, nor in my judgment is there any compelling reason why an appeal should be heard. I draw attention particularly to the fact that although the council concluded that it had no further statutory duty to offer the Applicant accommodation under Part 7 of the Housing Act 1996, it nonetheless concluded that pursuant to its duty under section 190(2) accommodation should be made available to the Applicant to enable her to continue to address the issues which had caused her longstanding history of substance abuse.

In the letter communicating the review decision the review officer, Mr Stack, said at paragraph 70:

The practical consequence is that there is no real difference between that undertaking and the duty that would be owed to the Applicant under section 193(2) of the Act if she were found not to be intentionally homeless.

Ms Osler disputes that, essentially on the basis that she submits that were the Applicant able to establish that the greater duty were owed to her, that would inject a greater element of urgency into the provision of suitable accommodation. The facts however of this case give the lie to the extent to which that is a practical point bearing in mind that complaint is made that this Applicant was in fact in what is said to be unsuitable accommodation for a period of five years awaiting something more suitable.

The four grounds of appeal which are put forward begin with a submission that the review officer and indeed the judge at first instance were wrong to identify the combination of a series of allegations (instances of antisocial behaviour) as the deliberate act because it is said by Ms Osler that the real reason why the Applicant was evicted was because over the weekend of 18 January 2014 illegal drugs (crack cocaine) were found in her room, and she suggests that that alone should be regarded as the relevant matter upon which the council relied. The difficulty with that argument is that the review officer expressly finds at paragraph 40 that what ultimately led to eviction was all of the antisocial behaviour itemised in the decision including noise nuisance (which I think relates to use of the television at excessive volume at antisocial hours) and allowing a Mr Ahmed who was banned from the premises onto the property, and various noisy altercations and I think instances of Mr Ahmed or possibly someone else using the shared common facilities. The finding at paragraph 40 is that it was all this behaviour plus the police raid on 17 January 2014 which ultimately gave rise to the decision. That being the case, ground 1 falls away.

So far as concerns ground 2, again this ground falls away once it is accepted that it was the cumulative pattern of behaviour which led to the eviction, because what is said is that the review officer failed properly to apply the guidance given at, I think, paragraph 11.17 of the Homelessness Code of Guidance 2006, which provides that generally an act or omission should not be considered deliberate where the act or omission was the result of limited mental capacity or a temporary aberration or aberrations caused by mental illness, frailty or an assessed substance abuse problem. Ms Osler submits that no conclusion is possible other than that the finding of crack cocaine in the Applicant’s room must have been caused or been a result of an assessed substance abuse problem.

I doubt whether Ms Osler is in fact right about that because in my judgment she misreads the guidance in that it is, as I read it, the temporary aberration or aberrations which must be found to be caused by either a mental illness or frailty or an assessed substance abuse problem, and it is not enough of itself to find that the relevant act or omission was the result of an assessed substance abuse problem. What the guidance seems to indicate is that there must be a superadded feature that there be a temporary aberration or aberrations which is itself caused by the assessed substance abuse problem.

But however that may be, the position is that there is an express finding by the review officer at paragraph 25 that he had reached the conclusion as to deliberate behaviour, including the entirety of the antisocial behaviour, having had regard to that guidance. There was plainly material before the review officer which justified that in the shape of a report from a Dr Wilson, and whilst criticism is made by Ms Osler that Dr Wilson had not examined the Applicant himself, she accepts that it is not in all cases a prerequisite that the person giving the relevant evidence shall have conducted an examination himself or herself of the person whose behaviour is under discussion.

Ground 3 suggests that there was a misdirection in relation to causation. This is very much bound into the first point. But it fails on the facts because there is an express finding at paragraph 40 that what ultimately led to the eviction was all of the behaviour described in the report together with the finding of the drugs over the weekend of 17 and 18 January 2014, and furthermore that after the appeal meeting which took place on 15 January 2014, but before the police raid in the course of which the drugs were found, the charity had reached a decision to proceed with the eviction of the Applicant. It cannot therefore be argued that the discovery of the drugs broke the chain of causation between the allegations of antisocial behaviour and the decision to evict.

The fourth and final point is that it is said that the accommodation from which the Applicant was evicted was not accommodation which it was reasonable for her to continue to occupy. Ms Osler accepts that at paragraph 47 the review officer directed himself correctly when he said, “Whether accommodation is reasonable to continue to occupy may be affected by whether alternative accommodation will be available if the Applicant was to remain in the present accommodation for a short time”. The review officer went on to find that that statement of principle applied in the present case.

Ms Osler seeks to attack the conclusion of fact which the officer reached at paragraph 48, where he said this:

As the judge himself pointed out at paragraph 24, showing that an applicant for housing might have been better off somewhere else does not mean that the lost accommodation was not reasonably suitable for the Applicant to continue to occupy, and furthermore, it is obviously the case that for a person addicted to drugs, as this Applicant was, there will almost always (or in many cases in any event) be somewhere where the care available would be superior. That however does not mean that it is appropriate for this court on a second appeal to revisit a conclusion of fact reached by the review officer of the sort which he here made. The attempt so to do is, as I have indicated, simply a disagreement with the factual finding and perhaps at bottom amounts to a commentary upon available resources, but it does not raise a matter of principle or practice which is suitable to be raised on a second appeal.

For all those reasons, therefore, valiantly though Ms Osler has argued her case on behalf of her vulnerable client, I must decline to grant permission to appeal.

Order: Application refused