Ghandali, R (on the application of) v London Borough of Ealing

MR JUSTICE LEVESON: The claimant (who is nearly 40 years of age) suffers from post-traumatic stress disorder, having been tortured, raped and imprisoned in her native Iran before escaping to this country where she claimed asylum and, in October 2001, was granted indefinite leave to remain. Her condition is such that she is in receipt of disability living allowance at the higher rate for personal care. Initially, she lived in Cardiff but on 17th October 2002 she moved to London and took a private assured shorthold tenancy of a flat in Twyford Avenue, London W3. This flat, which is a bed-sitting room in a converted larger house, has cooking facilities together with a separate bathroom and toilet.

On 20th September 2004 the claimant applied to the London Borough of Ealing ("Ealing") to join the housing register that is kept pursuant to Part 6 of the Housing Act 1996. Ealing operates a letting scheme based on choice, with priority determined by allocating each applicant to one of four priority bands. Based on the evidence submitted and its own evidence, Ealing placed the claimant in Band D, that is the lowest band which is accorded the least priority, as having "no recognised housing need". That assessment has been maintained over an 18 month period and solicitors acting for the claimant have attempted to justify a move, at the least to Band B, that is to say having an urgent need to move on the grounds that her housing conditions are having a major adverse effect on her medical condition. With the leave of the single judge, the claimant now challenges that assessment by way of judicial review. No criticism is made of the policy which is based on section 167 of the 1996 Act. It is its operation in this case that the claimant challenges as unreasonable, irrational and thus unlawful.

I deal first with two arguments which in reality are linked. First, Ealing argues that in essence this is a challenge to a review decision of 30th September 2005 and, as a result, is out of time. The claimant, on the other hand, takes various points about a number of specific decisions. In particular, issues are raised about the quality of reasons and the extent of the consultation in relation to the response to further and yet further representations. In one sense, it is accurate to say that each decision is an individual exercise of discretion and should be considered separately. That would lead, however, to the position that the first question to be decided in relation to each decision is whether a challenge to it is in time. If it is not and that decision cannot then be impugned, further representation would have to be considered in the light of the fact that the original decision stood and carried with it such weight as it deserved. The question would then only be whether the new material which generated decisions in time was such as should have caused Ealing, looking at the matter in the round, to reach a different decision. That would make the task of the claimant more difficult.

If, on the other hand, given the continuing nature of the process of decision and submission and further decision, the court treated the entire process as one, individual arguments about the language of specific decisions and the extent of consultation in relation to that decision specifically, or individually, would fall to the ground. I bear in mind the approach of the Court of Appeal in Bellouti v London Borough of Wandsworth [2005] EWCA Civ 602, in which Tuckey LJ at paragraph 62 dealt with the argument that an applicant had to have the last word by agreeing with the proposition that "to-ing and fro-ing" had to stop somewhere. In my judgment, in a case where the facts are as they are in this case, justice is better done by looking in the round at the evidence available to both sides and deciding whether the decision ultimately taken was one to which the authority could lawfully come and whether, again in the round, the reasons which are given for reaching it bear analysis. When presented with that possibility and those options, neither side in this case demurred from that approach.

I can outline the scheme against which the decision had to be reached shortly. Ealing's allocation scheme, which, as I have said, is not impugned in these proceedings, analyses a large number of factors in order to determine the priority status of applicants for accommodation. In this case, the only relevant issue concerns the medical position, that is to say the extent to which here an applicant has an illness or disability which is affected by her current home, or who may be vulnerable on physical or mental health grounds. These cases are referred to the authority's medical adviser and an assessment is made in relation to the effect of present housing on the state of health of the affected person. Following that assessment, as I have indicated, the applicant may be placed in one of the following bands.

Band A covers emergency medical situations to be recommended where the home seeker or member of the household has a life-threatening condition which is seriously affected by housing or homeless households in temporary accommodation which is unsuitable due to a medical condition. It also covers the situation where the housing conditions and/or other circumstances are having such a major adverse effect on the medical condition of the applicant or a member of the applicant's household as to warrant emergency priority.

Band B is entitled "Medical Hardship" and is to be recommended where the current housing conditions are having a major adverse effect on the medical condition of the homeseeker or a member of the household. It is clear that Band B will not apply where the effect of housing conditions on health is comparatively moderate, slight or variable.

Band C is entitled "Medical Need" and is to be recommended where the current housing conditions are having an adverse effect on the medical condition of the homeseeker or a member of the household which creates a particular need for them to move.

On 5th October 2004 the claimant was allocated to Band D with a priority date of 20th September, which I apprehend merely provides a date in the queue. Thereafter, representations were made on the claimant's behalf that she should be awarded higher priority on medical grounds. On 29th June 2005 Ealing confirmed that the claimant's current home was considered adequate on medical grounds and she remained in Band D.

On 5th August 2005 the claimant's solicitors took the matter somewhat further in their request of a review of her priority banding. They did so by enclosing a report from a consultant psychiatrist which had been prepared on 4th April 2005 and a referral form completed by a social worker dated 29th April 2005. The medical report is not in my papers, but the accompanying letter from the claimant's solicitors identifies that Dr Farah confirmed that the claimant was suffering from a severe post-traumatic stress disorder following exposure to psychological and physical trauma in her country of origin, a depressive disorder of moderate severe degree characterised by depressed mood and suicidal ideations with psychotic symptoms, "et cetera", which occasionally from time to time got worse when she developed psychotic features, namely paranoid persecutory delusions and auditory hallucinations. She had been admitted to hospital for a few days in 2004 and the doctor considered her to have an active suicidal intent.

The report from the social worker spoke of concerns about the claimant's living conditions and recommended supported housing. The claimant, however, was anxious about being with people with medical health problems which she felt might exacerbate her fragile state of the mind.

At that stage, Ealing contacted a medical adviser for advice upon this material. Dr John Keen prepared a report which considered not only the claimant's declarations and those of her solicitors, but also a report from the mental health team and the two reports to which I have previously made reference. He identified her current condition and went on:

On 30th September, based upon that information, Ealing notified the claimant that she would remain on Band D. The reviewing officer observed:

One of the issues in this case has been the impact or effect of the fact that the claimant obtained her present accommodation herself. The claimant, by Mr Latham on her behalf, argues that that fact is entirely irrelevant. Miss Godfrey for Ealing argues that it remains a relevant factor but could not be and was not determinative in this case. In my judgment, that feature is a background fact only. The reality, as must have been this case, that the claimant considered the accommodation appropriate for her at the time that she took it does not necessarily mean that she found it so or that her mental condition was not affected by it. To use the fact that she obtained the accommodation herself for any other purpose is, in my view, inappropriate.

In the light of the response, the claimant's solicitors made further representations on 31st October 2005, again with further evidence from Dr Farah. This report also is not in my papers, although it appears to confirm information not merely of the claimant's condition but also her recent attempts at self-harm by overdose of pills, described as an impulsive action. This report was also sent to Dr Keen, together with a report from a housing officer who described the accommodation as in excellent condition, well decorated, with its own shower, toilet and wash basin, wall cupboard, sink and hot plate.

In a report dated 7th November 2005 Dr Keen wrote:

I observe that the objective sense of what Dr Keen reports does not necessarily translate itself into the subjective impact upon this claimant, having her background and in her situation, but to analyse that position further requires rather more of the history.

On 14th November 2005 the relevant reviewing officer considered the new evidence and observed that the current accommodation was very comparable to what might be provided for her within the Council's stock, given that her bedroom eligibility is bedsit or one bedroom. She goes on to observe that the new medical evidence indicates that deterioration in the claimant's mental health cannot be attributed to her accommodation and that she fully accepted that opinion. It is not, of course, precisely what Dr Keen said: he only observed that he saw no reason why it could be attributed, not that positively it could not.

The next feature of the chronology takes the form of a report from a locum social worker to the Mental Health Housing Team at Ealing. It has only been disclosed to the claimant today, but is of real significance. I read the letter dated 6th December 2005 in its entirety.

That report was sent to Dr Keen, for there is endorsed upon the copy that is in my papers a rubber stamp with his name and address and the words "9 Dec 05 noted N/C", which I take to mean "no comment".

This report provides the very link that Dr Keen had not been prepared to accept in his earlier report. Meanwhile, a further report was sent by the psychiatrist, Dr Farah, which expressed the opinion that the claimant's current accommodation "is probably detrimental to her mental health because it reminds her of a small prison cell where she was held at a detention centre in Iran ..."

It goes on that her condition is unlikely to improve unless her current accommodation is changed to a more appropriate one.

Dr Farah also wrote to the Mental Health Housing Team, who were the addressees of the letter from the social worker, requesting that the claimant's banding be upgraded. In addition, the claimant took the step of seeking the opinion of an independent social worker, Mr Mark Francis, who is eminently qualified, not merely with a law degree but also with qualifications in social work as well. He describes the claimant's condition and gives four specific examples of the way in which her current accommodation affects her. Thus, he reports, firstly:

He goes on:

Secondly, he observes that most, if not all, converted properties have poor sound proofing. Whilst he interviewed the claimant, she was visibly distressed by noises from other tenants. He observed:

Thirdly, Mr Francis reported that the claimant spoke of nightmares and constantly needing to leave her bedroom as she woke up. He reported that this observation is in common with most of his clients in a similar position. In other cases, male clients would walk the street or enter the dining room in bed and breakfast hotels, but the only room that the claimant had, beyond her sole living room, was the very small toilet and shower.

Finally, he observes that because she is effectively sleeping in what is also her kitchen, the fridge continues constantly to buzz, which increases her irritability. Speaking for myself, I do not consider that to be the greatest difficulty that could not be overcome in some way. In any event, the social worker goes on:

A further letter was obtained from Dr Farah to the effect that the claimant remained quite distressed and demoralised, with features of clinical depression and psychotic features. He goes on:

Dr Keen was sent this letter but continued to remain of the view that he had previously expressed. When shown the report from Mr Francis, he goes on:

It is unclear whether Dr Keen is suggesting that the impact of the doorbell noises, nightmares and buzzing fridge, et cetera, is unreasonable, that is to say she is not suffering the symptoms of which she reports, or whether he is saying that even if she is, because they are normally occurring and might be expected reasonably to be in any communal housing, there is no reason for her to be relocated. That is important for Band C has the two conditions to which I have previously referred, namely that there must be an adverse effect on the medical condition of the homeseeker and this adverse effect must create a particular need for that homeseeker to move.

On the face of it, it appears that Dr Keen's letter suggests that the medical condition does not create a particular need to move because the stressors are normally occurring, rather than the stressors are not causing a condition. That is not quite how the decision-maker from the Housing Review Team described the matter in a decision of 16th January in which the Band D categorisation was maintained. She observes:

In my judgment, the distinction between the words used by the doctor and the words used by the reviewer is of significance. Ealing is not saying that there is not social housing available which does not deal with the features to which the doctor refers. Neither is that surprising, given Mr Francis' view that appropriate accommodation would be "fairly typical local authority accommodation for one bedroom property".

Further, I also observed in relation to this analysis that the social worker did not suggest that the property was unreasonable. That word, as I remind myself, does not appear in his report. I can only assume that the writer, Ms Anucha, is seeking to summarise the effect of the claimant's continued occupation of the premises. The claimant still maintained the position and these proceedings were commenced. As a result, on 7th March 2006 Dr Keen reviewed the entire file. He then observed:

With respect to Dr Keen, that does not address the issue that he is required to consider in banding this claimant where the relevant question is whether the current housing conditions are having an adverse effect on the medical condition of the claimant, which itself creates a particular need for her to move. Again, I find it difficult to see in the observation of 7th March 2006 whether Dr Keen is asserting that her medical condition is not adversely affected by her accommodation or whether he is suggesting that whatever effect it has, it does not create a need to move; I anticipate the latter.

In the light of that medical report, Ms Anucha reviewed the position and again observed finally on 7th March 2006:

Mr Latham contends that it is simply irrational to argue that the current accommodation does not have an impact on the claimant's medical condition. A fortiori, that is so, having regard to the clear analysis of the circumstances in which she took an overdose on 23rd October 2005. Having regard to medical evidence that the reviewing officer, Ms Anucha, obtained, I entirely understand why she so expressed herself, but it is a matter of the very greatest concern that Dr Keen in his review of the papers did not unpick the ways in which the various conclusions that had been expressed had been undermined by later events. This includes his original conclusion that there was no suggestion of actual current suicidal intent followed, after the attempt, by his view that this was impulsive and there was no reason why it should be attributed to her accommodation and his failure to address subjectively the condition of which the claimant complained to her psychiatrist, the independent social worker and the local social worker employed by Ealing. Furthermore, if Ealing wished to rely upon his conclusion that the complaints would be "normally occurring and might reasonably be expected in any communal housing", it was important that he be informed that there could very well be social housing in a communal setting which did not fall within that category. That certainly was the view of the independent social worker and appears also to be the conclusion of the reviewer, who observed that the features would occur in "most social housing" (my emphasis). It is not suggested that it is in all social housing.

In the circumstances, I have come to the conclusion that the advice tendered by Dr Keen was not based upon a proper consideration of all the material that had been placed before him. He, of course, had no opportunity to examine the claimant to reach any independent view as to the features which were the subject of reports by other professionals. In my judgment, his failure to deal with the points raised by those reports which undermined earlier conclusions have resulted in a conclusion itself which cannot be justified and can properly be characterised as irrational. Given that Ealing relied upon those reports for their conclusion, its view must, similarly, be tainted.

In the circumstances, I am prepared to quash the decisions of Ealing in connection with their determination of the banding of this claimant's circumstances and direct that the matter be considered afresh. That is not to say that Ealing are bound to conclude either that this claimant should be placed in the higher band, or otherwise. What they are required to do is reconsider all the evidence in the light of the matters to which I have referred and so reach a decision on rational and appropriate grounds. I am only too conscious that decisions in this regard affect a large number of people and alter the queue for the scarce community housing that is available. The task of assessing the appropriate band, however, is not for me, but rather for them. In those circumstances, however, this decision is quashed and an appropriate declaration made.

MR LATHAM: My Lord, I am grateful. I think we are agreed the appropriate decisions to be quashed are those of 16th January and 7th March 2006. My Lord, I would make an application for costs and for the normal public funding assessment for costs.

MR JUSTICE LEVESON: Can I just say something about costs. I am very disturbed about a couple of letters that I have seen written by your solicitors which border on the threatening. Do you know the paragraph in the letters to which I am referring?

MR LATHAM: My Lord, I cannot refer to them precisely, but I recall the passages which I suspect have caused my Lord concern.

MR JUSTICE LEVESON: They are not written, as I read them, merely to inform, but for a quite different purpose. That is a matter for them to consider, but suffice to say -- I will obviously hear what Miss Godfrey has to say, but I would certainly want the costs judge to scrutinise most carefully the claims made both for time and rate in the light of the way in which that letter is expressed. Miss Godfrey, do you have anything to say about the costs?

MISS GODFREY: My Lord, I do not think I can oppose costs in principle.

MR JUSTICE LEVESON: Are you aware of the point that I am making?

MISS GODFREY: I believe that I am. My Lord, clearly, the costs judge will look at the matter --

MR LATHAM: My Lord, I think it is page 44.

MR JUSTICE LEVESON: You are right. There it is. Thank you very much.

I wish the claimant well. I am sure she understands I have not decided the banding myself. It simply is not my task.

MR LATHAM: My Lord, she is accompanied by a social worker and she will have assistance and ensure that all matters are --

MR JUSTICE LEVESON: I am sure.