Barrett, R (On the Application Of) v City of Westminster Council

THE DEPUTY JUDGE: In this matter, the Claimant challenges the Defendant's decisions of 1 May, 19 May, 20 May and 3 June 2015 to refuse to exercise its discretion under section 188(3) of the Housing Act to secure that accommodation is available to the Claimant pending the outcome of its review of her application for assistance under Part 7 of the Housing Act 1996.

The law on the subject is to be relevantly found at section 175. All of these are from the Housing Act 1996. 175:

Then under section 184(1):

One of the key points here is whether the Council made such inquiries as are necessary in relation to the Claimant's medical condition. It is accepted that the onus of proof is not on the Claimant.

Section 188 provides at 188(3):

Section 189, priority need, "The following have a priority need for accommodation". That includes by (1)(c) a person who is vulnerable as a result of old age, mental illness, et cetera.

Section 193 deals with the duties to persons with priority needs who are not homeless intentionally.

There is then provision for a review and by section 204, if an Applicant has requested a review and is dissatisfied with the review, he may appeal to the County Court.

The only other matter relied on by the Claimant is under the public sector equality duty under section 149 of the Equality Act 2010. The relevant parts are:

The parties have very helpfully analysed the law on this matter. It is important to bear in mind that there has been an important recent case called Hotak v London Borough of Southwark [2015] UKSC 30 which was decided on 13 May 2015. That was decided after all but the last of the decisions under challenge.

This reviewed a decision called R v Camden London Borough Council, Ex p Pereira [1999] 31 HLR 317 whereby the test for whether someone was vulnerable was whether they were 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 Hotak decision clarified that when a housing authority is considering whether an Applicant falls under section 189, the decision maker should compare the Applicant with an ordinary person when the ordinary person is made homeless, not an ordinary actual homeless person. It was emphasised by the Supreme Court that the issue of vulnerability must be determined not so much by reference to each of the Applicant's problems, but by reference to them when taken together and that homelessness covers a number of different situations and is not limited to street homelessness. Also, Ms Lloyd relied on paragraph 41.

I agree with Mr Peacock in general terms that Hotak is clarifying an ambiguity that may have arisen from the Pereira decision rather than applying a new test altogether. That is relevant because of the circumstances as to whether the Council applied the proper test in the original letter.

It is important that the scope of judicial review is understood in this case. There are two relevant authorities on this. The first is Francis v Kensington and Chelsea Royal London Borough Council [2003] 1 WLR 2248 where between paragraphs 15 and 27 the Court of Appeal stressed that the matter is a matter of discretion.

Ms Lloyd refers to R (on the application of) Paul-Coker v London Borough of Southwark [2006] EWHC 497 (Admin) where Forbes J does at paragraph 35 refer to the fact that the notes in that case:

At paragraph 48 Forbes J said:

While it is true, as Mr Peacock pointed out, that this was an unusual case because it depended partly on a test for habitual residence, as can be seen in paragraph 42, I do accept Ms Lloyd's proposition that if lip service alone is paid to the relevant test and to the information put forward by the Claimant, then this would be unlawful.

By way of brief background, the Claimant is 58 years old and is single without children. She resided in Tunbridge Wells for about eight years until spring 2013. She was evicted after the property was sold by the landlord Housing Association. She was offered alternative accommodation in Tunbridge Wells for which she signed a tenancy agreement, but never moved in because she feared for her safety.

She is said to have been the victim of attempted murder and two attempted abductions and it is said that she was subject to a campaign of harassment. I am taking this from the Claimant's skeleton argument.

She has made applications to a number of Local Authorities for assistance under Part 7 of the Housing Act and has been accommodated temporarily, in some instances, by them. Otherwise, she has been staying in hotels and bed and breakfast accommodation on some occasions and in other places, including cafés and night buses.

On 7 April 2015 the Claimant approached the Defendant for assistance under Part 7. The Claimant informed the Defendant she was in receipt of Disability Living Allowance as well as Severe Disablement Allowance. She does not use conventional medicine and suffers from various medical conditions.

It is now necessary to consider in some detail the relevant correspondence thereafter. The original notice under section 184 referred to the Pereira test and said that the Council had been advised that the burden of proof rests on the Authority. It said that she was not registered with a GP anywhere in the UK and she could not take medication as she was violently allergic to conventional medicine.

The letter said that they:

So the Council made it very clear that albeit they accepted that the general burden of proof rested on them, they were effectively unable to make inquiries as to her vulnerability.

They did, however, attempt to take the matter further because she did attend a GP appointment who wanted to refer her on to a further appointment, but this was rendered impossible because she failed to attend that appointment.

Although I fully understand the position taken by Ms Lloyd on behalf of the Claimant (I should say Ms Lloyd has taken all proper points on her behalf), it is difficult to criticise the Local Authority for not making further inquiries when they sought to make them and the Claimant for whatever reason, and they may be good or bad reasons, was unable or unwilling to allow them to do so.

The letter, in any event, goes on to say that:

They go on to say in the letter:

Now, clearly that did not take into account the precise guidance in Hotak, but that guidance had not yet been given. I accept Mr Peacock's assessment that this was not, however, entirely different to the principles that were applied in Hotak.

What followed is a very strong and convincing letter from Steel & Shamash dated 30 April 2015 and marked "very urgent". It includes this material. It says:

They then set out what the client suffers from in some detail. I am only going to set out the headings, but there is narrative attached:

They make a request for provision of temporary accommodation.

The response to that letter of 1 May, I agree with Ms Lloyd, does not properly respond to the issues. Under "merits of the case" where one would expect normally to find the material on the Mohammed three-stage principles, it simply says:

That does appear to me to be the work of someone who is not carrying out the conscientious requirements under the public sector equality duty referred to Lord Neuberger in the Hotak decision and it can properly be read as simply paying lip service to the points put.

I do, however, accept what Mr Peacock says to that one has to look at the matter in general terms, but I do think that even if one takes together the material under "new information, material or argument" and "personal circumstances", two things are simply not addressed. Firstly, what appears to be the extreme set of conditions set out quite clearly in the letter of 30 April and secondly the fact that she has been a rough sleeper. I do not think that these are properly addressed.

Whilst I fully accept that one should not intervene too much in these sorts of decisions and I also accept Mr Peacock's submissions that these have to be taken quickly and it may be that the Claimant's solicitors were somewhat unreasonable in requesting an immediate response, I do not that think that this conscientiously carries out the duties on the Local Authority.

There was then a further letter of 18 May 2014 referring to an occupational therapist report. It is true that that does effectively repeat what the Claimant has said, but it does include these parts:

Under "toilet/catheter":

There are remarks under "continence, eating, drinking, sleep pattern":

The response to that is a further Council letter of 19 May, which is somewhat surprising in that under "new information" it says:

It does seem to me that the Council has not carried out the due consideration which is necessary.

There is a further coda in that on 19 May 2015 Steel & Shamash refer to the then recent case of Hotak and the response on 20 May is that:

As I have sought to indicate already, my conclusion is that, unusually, the Council has not given conscientious consideration to the necessary matters. I do not accept that the original decision was unlawful. I do, however, think that the subsequent three Mohammed letters, particularly the first and the second, were unlawful and that the proper course is that the Defendant reconsiders the matter, which is the relief that is sought.

I will hear the parties on the question of the appropriate relief, but in general terms I am minded to make a mandatory order that the Defendant reconsiders forthwith whether to provide the Claimant with accommodation pending review.

MS LLOYD: My Lord, in light of that, could I invite you to grant interim relief in the form of accommodation pending the decision of whether to accommodate pending review?

THE DEPUTY JUDGE: But that is not one of the orders you have sought in your skeleton argument, is it?

MS LLOYD: No. There was an original application for that accommodation interim relief in that form.

THE DEPUTY JUDGE: Can you just show me it, please?

MS LLOYD: It was refused by Parker J and then it was refused again.

THE DEPUTY JUDGE: Why is it not in your skeleton argument?

MS LLOYD: It is an error on my part.

THE DEPUTY JUDGE: What are the terms in which you seek that?

MS LLOYD: Sorry, my Lord. The original request was accommodation pending review, but I suppose that the only proper course would be to grant. What we can ask for really is interim relief in the form of accommodation pending the Mohammed decision.

THE DEPUTY JUDGE: I am going to hear Mr Peacock on that. Are there any other applications you want to --

MS LLOYD: Costs.

THE DEPUTY JUDGE: Are you publicly funded?

MS LLOYD: Yes.

THE DEPUTY JUDGE: What would be the appropriate order?

MS LLOYD: That the -- (Pause)

THE DEPUTY JUDGE: Come back to me on that point.

MS LLOYD: Yes.

THE DEPUTY JUDGE: Yes.

MR PEACOCK: My Lord, I cannot resist the application for costs.

In terms of the application for interim relief, which I am slightly surprised by, the consequence of the claim being allowed is that the Defendant has to take a lawful decision.

THE DEPUTY JUDGE: Can I just ask you how long that is likely to take?

MR PEACOCK: Well, as I understand it, the review process has got to a "minded to" stage where the reviewing officer has written a letter saying that she is minded to uphold the decision that the Claimant is not in priority need. She has asked for written oral representations in response to that, I think, today and an extension of time for the refusal decision to, I think it was, 4 August. So at some point next week.

THE DEPUTY JUDGE: But the consequence of my judgment is surely that you have to take a further Mohammed decision.

MR PEACOCK: Yes, I was going to say. Yes.

THE DEPUTY JUDGE: How long will that take?

MR PEACOCK: I mean, they are taken quickly.

THE DEPUTY JUDGE: Yes.

MR PEACOCK: Maybe tomorrow or the day after --

THE DEPUTY JUDGE: I see.

MR PEACOCK: I would have thought.

THE DEPUTY JUDGE: In the light of the fact that a further decision will be taken imminently and also the fact that I am not sure that any interim application is really before me, I am not going to make any interim order. I will give both parties liberty to apply if anything goes wrong with that.

So you can perhaps write this into the order. You will draw up the order, Ms Lloyd. You can write into the order, I think, an undertaking that the new Mohammed decision will be -- if there is no undertaking, I am going to make an order to that effect -- taken imminently.

MR PEACOCK: I am slightly reluctant to give an undertaking simply because I do not know whether the relevant decision makers are there today or tomorrow and so on.

THE DEPUTY JUDGE: Well, I am going to make an order that the decision be taken by Friday, so --

MR PEACOCK: Right. I think I can consent to that.

THE DEPUTY JUDGE: You can consent to that, okay.

Well, please make it an undertaking that the renewed Mohammed decision will be taken by close of business on Friday.

So just to go through it so there is no misunderstanding, the order will be that there be an order quashing the three Mohammed decisions; not the original decision, but the three Mohammed decisions.

MS LLOYD: My Lord, there are four decisions. I did not go to the final one because it just rejects the doctor's letter.

THE DEPUTY JUDGE: Okay. Well, if there is a fourth one, then set out the dates of them in the order, please.

Then an order that the Defendant reconsiders whether to provide the Claimant with the accommodation pending review. You have your costs and whatever taxation is relevant.

Is there anything else?

MS LLOYD: No. I do not think so, no.

THE DEPUTY JUDGE: No. Okay. Thank you both very much for your assistance. You are free to go. I just need to close my computer.

MS LLOYD: Thank you.