Hoyte, R (on the application of) v London Borough of Southwark

This is a claim for judicial review in which the claimant challenges the decision of the defendant local authority not to accept a further application from her as a homeless applicant under Part VII of the Housing Act 1996 (“the Act”), as set out in a letter dated 2^nd March 2016.

Permission to proceed with the claim was granted by Sir Stephen Silber, sitting as a Judge of the High Court, on 14^th May 2016.

The application which is the subject of these proceedings was made on 1^st March 2016. It was the third application for priority housing made by the claimant within a year. In respect of the first two, made in June 2015 and October 2015, it is accepted that the defendant followed the correct process before lawfully deciding that she did not have a priority need for housing. The relevant application was then made by way of a solicitor’s letter in which it was claimed that there had been a change of circumstances. However, the defendant refused to accept the claim, concluding in the letter of 2^nd March 2016 that:

“there has been no material change in circumstances and the facts which led to the decision that she is not in priority need.”

It is the claimant’s case that the defendant was wrong in law in refusing to accept the application. The claimant maintains that the defendant ought to have made inquiries into her vulnerability in light of new facts existing at the time, following the procedure in Part VII of the Act. Had that led to an adverse decision, the authority would then have been required to notify the claimant of its decision and give reasons. She would then have had a right to a review and ultimately an appeal to the County Court. Such remedies do not lie against the refusal to entertain the application. Therefore, the claimant brings this claim, seeking to require the defendant to make inquiries and to notify her of its decision under the process set out in section 184 of the Act. That would also give rise to an obligation to provide temporary housing until notification of the decision to her.

The defendant maintains that the claimant’s application disclosed no relevant new facts and therefore that its decision not to accept the claim was right, or in any event was within a range of reasonable responses open to the authority. The defendant therefore contends that there is no basis for this court to intervene and the judicial review cannot succeed.

The claimant is aged 58. She has a troubled history. She has a long history of mental health problems and has a diagnosis of depression. It is not disputed that she is homeless. She has been staying on a temporary and insecure basis with her two daughters, moving between them and sleeping on their sofas.

In June 2015, the claimant made an application for homelessness assistance using the defendant’s standard assessment form. The defendant carried out inquiries before concluding that the claimant did not have a priority need since she was not significantly more vulnerable than someone who is ordinarily vulnerable as a result of being homeless. That decision was upheld on review in August 2015. During this process, reference was made to the claimant’s depression and to self-neglect but not to any suicide ideation or risk.

The claimant made a second application on 15^th October 2015. By then, she had been seen by a clinical psychologist, Mr Shuttleworth, who had been instructed by her solicitors. His report dated 21^st September 2015 was enclosed with the application. Mr Shuttleworth diagnosed a Major Depressive Disorder, which he assessed as quite severe, and concluded that the claimant must be considered “quite a high suicide risk”. There was reference to the claimant having frequent suicidal ideas and keeping a “death pack” with medication which could be used to take her own life. It was said that she had attempted to kill herself with pills the previous year but had been interrupted by her daughter. Mr Shuttleworth suggested that if she were ‘street homeless’ the claimant’s mood would very quickly deteriorate to the point where she would become extremely suicidal.

The defendant obtained medical advice from a medical adviser, Dr Thakore. He did not examine the claimant but reviewed her account and Mr Shuttleworth’s report. Dr Thakore stated:

“There are no unstable psychotic tendencies or active suicidal thoughts to consider that would prompt emergency or enhanced psychiatric care.”

He concluded that the claimant was not significantly more vulnerable than an ordinary person.He did indicate that he would happily review the case should any further psychiatric reports become available.

The defendant decided on 2^nd December 2015 that the claimant was not in priority need and that she was intentionally homeless. The latter point was not subsequently maintained. The claimant requested a review of the decision. In the course of the review process, the claimant’s GP records were obtained by the defendant and the claimant’s solicitors served a second report from Mr Shuttleworth which took issue with Dr Thakore’s assessment and restated his opinion that there was a risk of suicide.

Having completed the review, the defendant notified the claimant of its decision on 3^rd February 2016 by way of an email enclosing a letter running to 64 paragraphs giving reasons for the decision. The defendant concluded that the claimant was not in priority need as her medical problems and circumstances were not such as to make her significantly more vulnerable than a person who is ordinarily vulnerable as a result of being homeless.

The defendant’s long letter properly identified the statutory framework and dealt with the test of ‘vulnerability’ by reference to the legal authorities. It then summarised Mr Shuttleworth’s reports, Dr Thakore’s advice and the G.P. records. At paragraph 41, the defendant’s officer stated:

“On my review of the information I still prefer the patient account records of the GP to both opinions but note that the opinion of the professional that has not met or examined Ms Hoyte appears closer to the records held in the GP summary. For example it appears consistent in the records that there is no active suicidal plan or risk within the GP records but it was considered that Ms Hoyte was a high suicide risk in the report of 21 September 2015. Pre the meeting of 8 September 2015 with Dr Shuttleworth and post the meeting Ms Hoyte had contact with her surgery and the aspect of the report on suicidal intentions and risk appear extremely different.”

The letter went on to accept that Mr Shuttleworth had formed the opinion that he had but referred to an entry made by the G.P. on 21^st October 2015 following an examination of Mrs Hoyte which included:

“NO thoughts / plans dSH. Children and Grandchildren protective factor.”

[I understand the letters DSH in medical records to refer to deliberate self harm.]

The letter went on:

“Whilst all matters may not be discussed with a GP, I am of the view that it has been recorded by the GP who has regular consultation and examination of their patients and I am satisfied that the opinion logged on the patient notes reflects the view of the GP.”

On 23^rd February 2016, the claimant received advice that she could not appeal the review decision. Her temporary accommodation was to cease on 2^nd March 2016. It is the claimant’s case that on 24^th February 2016 she formed the intention to commit suicide and embarked on a plan to do so. She emptied her bank account and boarded a bus towards Blackfriars Bridge intending either to jump from the bridge or to throw herself under a train. She claims to have given the money from her account to strangers on the bus. However, her GP had concerns about her and called her mobile phone while she was on the bus. She was persuaded to go to the surgery instead and was seen by Dr Patel. The claimant says that while waiting in the surgery she contemplated throwing herself from a first floor window. When seen by Dr Patel he recorded that there was “clear suicidal ideation”. An urgent referral was made back to the mental health team and she saw a mental health nurse, Mr Sarfo, on 25^th February 2016. In a report of the same date, Mr Sarfo wrote:

“My view after the consultation is, Jennifer is suffering from depression. She is very low in mood and has active suicidal thoughts with plausible evidence of plan and intent. Her current stressor is undeniably her accommodation situation. The threat of eviction in under a week with no viable option to street-homelessness is clearly a huge stressor. She reports continuous thoughts about ending her life.”

On 1^st March 2016, the Claimant made her third application for homelessness assistance by way of a letter from her solicitors which included the report of Mr Sarfo and a letter from her GP, Dr Franco, dated 26^th February 2016 which confirmed the findings of Dr Patel on 24^th February and summarised the findings at the mental health appointment that she “demonstrated suicidality”. Dr Franco said that she wholly supported the claimant in her appeal against her current housing situation.

The claimant’s solicitors suggested that the previous review decision was based on the fact that the GP had a different view from that of Mr Shuttleworth and also because the opinion of Dr Thakore was preferred. Their letter highlighted that the GP and mental health team had now assessed the claimant as being suicidal and that the only differing opinion was that of Dr Thakore who had based his assessment on the opinion of the GP which had since changed. It was contended that there could no longer be a dispute over the claimant’s vulnerability and that the change in circumstances since the last decision entitled her to make a fresh application which should be investigated under section 184.

The defendant replied on 2^nd March 2016 stating, as I have already indicated, that it was satisfied that there had been no material change in the circumstances and facts which led to the decision that the claimant was not in priority need. It was said:

“This is due to the fact that whilst it may be the case that your client made a visit to her GP after the review decision was issued, who in turn referred her for further treatment, the fact that she has a history of suicidal ideation was previously known to us as well as the fact she has a history of suffering from other mental health problems, including depression.”

The defendant therefore refused to take a fresh homeless application from the claimant. It is that refusal which is challenged.

Part VII of the Act sets out the statutory framework for homelessness applications. Under section 193, the local housing authority shall secure that accommodation is available for an applicant if satisfied that the applicant is homeless, eligible for assistance and has a priority need and are not satisfied that the applicant has become homeless intentionally. For the purposes of this claim, the only relevant consideration was whether the claimant had a priority need.

Priority need is dealt with in section 189(1). The relevant sub-section so far as this claim is concerned is section189(1)(c) which identifies that “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason” has a priority need for accommodation.

The test of ‘vulnerability’ emerges from the Supreme Court decision in Hotak v London Borough of Southwarket al [2015] 2 W.L.R. 1341. There is no dispute about the correct approach which may be summarised by asking: “Is the applicant ‘significantly more vulnerable’ than an ordinary person would be if made homeless?”.

Where the housing authority have reason to believe that an applicant is homeless or threatened with homelessness, they are required by section 184(1) to make inquiries to satisfy themselves whether the applicant is eligible for assistance and if so whether any duty, and if so what duty, is owed to him or her. One such duty is the duty under section 193 to secure accommodation for those in priority need. Under section 188 there is an interim duty to accommodate applicants who may be in priority need pending the decision being made under the section 184 process. Section 184(3) requires the decision and reasons for it to be notified to the applicant. Section 202 provides the right to request a review of an adverse decision under section 184 and section 204 gives the right to appeal to the county court on a point of law.

It is for the decision making officer to make the decision in relation to vulnerability. In Osmani v Camden LBC[2004] EWCA Civ 1706 Auld L.J. said:

“although authorities should look for and pay close regard to medical evidence submitted in support of applicants’ claims of vulnerability on account of mental illness or handicap, it is for it, not medical experts, to determine the statutory issue of vulnerability.”

The approach to medical evidence and assessments was further considered by the Court of Appeal in Shala v Birmingham City Council [2007] EWCA Civ 624. That case confirms that doctors may provide advice without examining the applicant but highlights the need to take the lack of examination into account when assessing its weight. The authority must make its own appraisal of the opinions expressed in light of all the material. There is no question therefore of “rubber stamping” any medical opinion. As Mr Broatch puts it, medical material is simply part of the pool of material which is available to the decision-maker.

The Act places no limit on the number of times an applicant may make a Part VII application. However, given the very real pressures faced by local authorities, it is obviously not reasonable to expect them to repeatedly deal with applications from the same applicants and based on the same facts. The courts have considered the position in relation to repeat applications.

The starting point is the House of Lords decision in R v Harrow LBC ex p Fahia[1998] 1 W.L.R. 1396 where it was said that an applicant cannot make a further application based on “exactly the same facts” as his earlier application. (See Lord Browne-Wilkinson at page 1402 B to E). As Mrs Fahia’s application was “not identical” to her earlier one, Lord Browne-Wilkinson accepted that there was no short cut of “non-statutory” inquiries and the statutory process should have been followed. It was suggested that legislation might be required to lay down a streamlined procedure but that has not happened despite the relevant legislation being updated.

The “exactly the same facts” test was applied in R(Griffin) v Southwark LBC[2005] H.L.R. 12 and was crystallised by the Court of Appeal in Rikha Begum v Tower Hamlets London Borough Council [2005] 1 W.L.R. 2103. Counsel on both sides referred in some detail to passages within that authority.

Giving the first judgment, with which Keene LJ agreed, Neuberger LJ said at paragraph 39 that following Fahia the only relevant basis on which a purported subsequent application can be treated as no application is where it is based on “exactly the same facts” as the earlier application. Neuberger LJ said this is a rather different formulation from a “material change in circumstances since the original decision.” Neuberger LJ acknowledged that this was a more precise test which was harder to satisfy.

The comparison to be drawn is with the facts as they were known to be at the date the application was disposed of “rather than the facts as they were alleged by the applicant at the date he or she made that application” (see Neuberger LJ at paragraphs 44 and 46).

To avoid falling into the trap of conducting non-statutory inquiries (as had been disapproved of in Fahia) the facts of the subsequent application must (in the absence of unusual facts) be taken to be those in the application (see paragraph 45).

Ms Davies pointed to paragraph 61 of Rikka Begum. Where a subsequent application appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient on investigation, the authority must treat the subsequent application as a valid application and

“would not be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations.”

Such an investigation would fall foul of the disapproval of non-statutory inquiries.

Mr Broatch invited me also to consider the judgment of Pill LJ, in particular paragraphs 89 and 90. Pill LJ agreed that the application in Fahiawas valid as it was impossible to say “that there has been no relevant change in circumstances at all”. However, he questioned whether Neuberger LJ’s formulation that an application would be an application for the purpose of section 183 “unless it was based on precisely the same facts as an earlier application” went beyond what had been intended in Fahia. He suggested that in concluding in Fahia that “it is impossible to say that there has been no relevant change in circumstance”, Lord Brown-Wilkinson appears to have been keeping alive the concept of change of circumstance applied in earlier cases. Pill LJ went on at paragraph 91 to say:

“Because time has passed, the facts will never be precisely the same. To remove all and any entitlement to investigate the contents of an application form would be to encourage bogus claims, to the detriment of applicants generally. I would maintain some entitlement to inquire into the contents of the form with a view to deciding whether a relevant new matter can realistically be asserted to be present.”

Insofar as there is difference between Neuberger LJ and Pill LJ’s approach to the extent to which an application can be investigated with a view to deciding whether it raises a new matter, I do not believe this has any bearing on the case before me. Mr Broatch did not assert (and nor could he) that the defendant was entitled to reject the claimant’s account or the contents of the medical evidence at the stage of deciding whether this was a new application

It is not in dispute and I of course accept that the decision as to whether to process a fresh application on the basis of new facts was one for the decision maker and this court can only interfere with that decision on conventional judicial review grounds. In other words, it is not enough to conclude that the decision was not one that I would have reached. Rather, I must consider whether the decision was not in accordance with the law; omitted to consider some relevant factor or was perverse or unreasonable in the Wednesbury sense. In order to quash the decision, I would have to conclude that no reasonable authority acting rationally and properly directed in law could have concluded that the application was “exactly the same” as the previous one and so refused to process it.

The legal principles being broadly agreed, the parties put forward different contentions as to the application of those principles.

On behalf of the claimant, Ms Davies said that the wording of the defendant’s letter of 2^nd March 2016 was not the best in that it referred to there being “no material change in her circumstances and the facts” and that did not reflect the correct legal test. However, even if the letter is read on the basis that the defendant was satisfied that there were “no new facts” that conclusion was perverse.

There were, says Ms Davies, clearly new facts. If the claimant’s account is accepted, the events of the 24^th February 2016 went beyond suicidal ideation and involved a plan to commit suicide and the beginning of putting that plan into effect. The treating clinicians (her GP and the psychiatric nurse) assessed her at that time and accepted that there was “clear suicidal ideation” and “active suicidal thoughts with plausible evidence of plan and intent”.

Further, the claimant points to the conflict between the information in the application made on 1^st March 2016 and that accepted in the review decision on 3^rd February 2016. Although evidence had been submitted as to the claimant’s risk of suicide before the review decision, Ms Davies contended that it is clear that the defendant had rejected the submission that she was a suicide risk. Therefore, the events of 24^th February 2016 and the additional medical evidence cannot be dismissed as simply new evidence of an existing situation. She submits that no reasonable local housing authority would do so.

It is further suggested that the defendant may not have considered all relevant circumstances. From its letter dated 2^nd March 2016 it is not obvious that it considered the events of 24^th February as the beginning of a plan to commit suicide. It concentrated on the claimant approaching her GP and being referred for treatment but not the events leading to this. Further it did not refer to the fact that they had previously relied upon their interpretation of the GP records as being inconsistent with Mr Shuttleworth’s report that there was a suicide risk. Now the GP was confirming that there was clear suicidal ideation at that time.

Towards the end of the letter, the defendant noted and then carried out some analysis of the contents of the psychiatric nurse’s assessment. Ms Davies was critical of this insofar as it appeared to cross the line into the sort of non-statutory inquiries disapproved of in Fahia.

In contrast to the claimant’s submissions, Mr Broatch for the defendant suggested that all the new application provided was just more evidence of the same facts. He points to the fact that there had been reference to the claimant having a “death pack” within the original application and the events of 24^th February were just another form of preparation in reality no different from the “death pack”. Ms Davies responded that if the “death pack” was taken into account by the defendant it did not appear anywhere in their long letter of 3^rd February. Mr Broatch also highlighted other references to suicidal risk and thoughts within the material before the defendant at the time of the review decision and quoted references to suicidal ideation within the review decision letter of 3^rd February 2016. He said, therefore, that suicidal ideation had expressly been taken into account in the review decision.

At paragraph 6.7 of the defendant’s skeleton argument it is said:

“What must be addressed is whether the actual facts disclosed by the third application, are or are not “exactly the same” as the facts disclosed at the time of the review decision on the second application.”

In considering what is meant there by facts “disclosed”, I look to paragraph 6.8 where the defendant contends:

“It is the “facts” behind the application which must be considered, rather than the evidence adduced in support of those facts. Fresh evidence, or additional evidence, showing the same facts as previously existed is insufficient. Such evidence would be confirmatory and merely “more of the same”. A claimed new fact must be one which can “realistically be asserted.”

(Mr Broatch relied for the last point on the judgment of Pill LJ in Rikha Begum.)

Mr Broatch suggested that, in effect, the claimant was simply saying that the decision was “wrong” and should not have been made on the “merits” of the case rather than on any basis which would allow this court to intervene. The defendant’s case was that there were no new facts or, in any event, that was a decision which it was open to the defendant to make.

Mr Broatch also asked me to bear in mind the pressures on local housing authorities, particularly in London and to recognise that, although the claim was brought to compel the defendant to consider the merits of the application, this was not a light matter. He suggested that repeat applications were becoming an increasing problem requiring the input of considerable resources to complete the inquiries (including interviewing applicants) and the reviews.

The defendant argues that suicidal ideation had been taken into account in the review decision in February and therefore the additional evidence presented by the claimant was nothing new but merely “more of the same”. It is right that the material cited at paragraph 11.2 of the defendant’s skeleton argument was all before the defendant at the time of the review. However, the fact that material is before a decision maker does not necessarily mean that the facts claimed from it have been accepted to be the facts actually existing at the time the decision was made.

In distinguishing, as the defendant does, between the facts behind an application rather than the evidence adduced in support of those facts, it seems to me that this must refer to the facts in the mind of the decision maker at the time of a decision and not merely facts that are asserted but not accepted. Any other approach would be irrational. A person who is presented with evidence but rejects it cannot reasonably say “I knew that all along” when later presented with fresh evidence of the fact alleged.

This approach fits with the approach adopted by Neuberger LJ at paragraph 44 of RikhaBegum whereby the circumstances or facts of an application are to be judged by reference to:

“the actual facts when the earlier application was determined (or reviewed) rather than the facts as they were alleged to be on the date he or she made the application.”

The defendant’s officer did not say anywhere in his letter of 3^rd February 2016 that he had accepted that the claimant was a suicide risk. Although the defendant did not clearly find as a fact that she was not, the only sensible interpretation of that letter is that, having reviewed all the evidence placed before it, the defendant had concluded that there was no significant suicide risk and was influenced in that by what its officer understood the GP’s views to be at that time, based on the notes.

The references to suicidal ideation contained in the review decision letter which are highlighted at paragraph 12.1 of the defendant’s skeleton argument were set out in the context of reciting the evidence considered before the decision maker went on to reach the conclusion which I set out at paragraph 12 above. This highlighted that no active suicide plan or risk appeared from the GP records and very clearly placed significant weight on this. That was a course open to the defendant on the evidence.

At paragraph 8.8 of the defendant’s skeleton argument it is said that the claimant (having not appealed it) is “fixed” with the proposition that the decision of 3^rd February 2016 was correct and good in law. It seems to me that the other side of that argument is that the defendant must be “fixed” with the facts being as it found them to be at the time of the decision of 3^rd February 2016 when comparing the facts of the new application.

What the defendant cannot do, in my judgment, is to go back and compare the facts which were alleged (but not accepted) in the previous application with those put forward in the new application. To do so is irrational for the reasons I have spelt out above.

In rejecting the new application, the defendant did not specifically refer to the events of 24^th February. Further, it did not refer to the fact that, having previously relied upon its interpretation of the GP records as being inconsistent with Mr Shuttleworth’s view on the risk of suicide, there was then evidence from the GP to support suicidal ideation. Taken together, these were significant and relevant factors which do not appear to have been taken into account.

I can see that there may be an objection to the drip feeding of evidence said to support the same facts originally alleged. However, that was not the case here. There was a new development in the form of events of 24^th February and those events resulted in new evidence from those responsible for the claimant’s primary healthcare. That evidence meant that the claimed new facts could be realistically asserted. Mr Sarfo said, having examined the claimant, that he thought that there was “plausible evidence” of suicidal plan and intent.

In my judgment, it cannot be said that the events of 24^th February and the accounts from the GP and Mr Sarfo were simply new evidence of an existing situation nor were they matters that could be described as “trivial or fanciful”. On any reasonable interpretation, when tested against the facts as the defendant had found them to be at the time of the review, the new application could not be considered by any reasonable authority to be based on “exactly the same” facts.

Having placed heavy reliance on its interpretation of the GP’s views as recorded in the notes, it was irrational to say that the facts were exactly the same when the GP’s views had clearly changed.

I therefore come to the conclusion that it was irrational or unreasonable in the Wednesbury sense for the defendant to take the view that the circumstances when the claimant made her application on 1^st March 2016 were exactly the same as those which led to the earlier decision that she was not in priority need and so to reject the new application.

As the claimant says, this does not of course determine the outcome of the application. What is required is that the defendant makes the statutory inquiries and notifies the claimant of the outcome and (if adverse to her) its reasons. The defendant is entitled to assess the reliability of the evidence. It is not for the court to determine the issue of vulnerability or to decide whether the claimant is in priority need. That will be for the defendant to assess but it is required to do so in accordance with the statutory scheme.

For the reasons I have given, the claim for judicial review is granted. I invite the parties to endeavour to agree an appropriate order reflecting my findings, failing which I will receive written submissions from Counsel as to appropriate remedies.