Abdullah v City of Westminster [2007] EWCA Civ 1566

Case No B2/2006/2366[2007] EWCA Civ 1566
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIC JUSTICE CENTRE
(HIS HONOUR JUDGE HARRIS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 21 st June 2007
Before
LORD JUSTICE ARDENLORD JUSTICE JACOBLORD JUSTICE WILSON
Between
ABDULLAHAppellantCITY OF WESTMINSTERRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr D Mendes De Costa (instructed by Messrs Karina Leapman & Co) appeared for Appellant.Mr G Pryce (instructed by Director of Legal and Administrative Services) appeared for Respondent.
Judgment
[1]This is an appeal from a decision of HHJ Harris given on 19 October 2006. It is a second appeal; permission for it was given by Sir Henry Brooke. HHJ Harris was himself dealing with an appeal on a review of Westminster’s housing review officer in a decision of 25 April 2006. It was a somewhat unusual situation in that this review decision was itself a second review decision, given following a successful appeal to HHJ Collins on a first review decision dated 29 October 2005 but I think that may be misdated.[2]The appellant came to this country as a refugee from the Yemen in the year 2000. Her circumstances are, as HHJ Collins records, tragic. Her husband was murdered; but she came here with four children. She originally went to Sheffield, moved to Barnet in about July 2003 where she had unfortunate and unpleasant racial attacks and harassment, and she moved to Westminster. She was encouraged so to do; and the point is that in Westminster there are a number of other people from the Yemen and she has relatives there, and there she says she can cope.[3]HHJ Collins held that the first review was defective and he held it was so because, looking at the first review, he concluded that it had missed the real point, which was not that she would very much like to live in Westminster, because what had happened by then is that Westminster had offered her accommodation a long way away in Barking; it was that she had a real need to be in Westminster because only in Westminster could she get support from friends and relatives and, accordingly, only by putting her in Westminster could the council comply with its legal duty to provide her with suitable accommodation. In short, her case was and is that nowhere but Westminster will be suitable. That the reviewing officer had failed to appreciate in his first decision; and the real question is whether he has properly tackled that in his second review decision.[4]The legal principles are not in doubt. They are conveniently summarised by Lord Bingham in Runa Begum v Tower Hamlets [2003] 2 AC 430 at paragraph 7. Although the county court jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review (Nipa Begum v Tower Hamlets [2001] 1 WLR 306). Thus the court may not only quash the authority decision under section 204, sub section (3), if it is held to be vitiated by legal misdirection on procedural impropriety or unfairness or bias or irrationality or bad faith, but also if there is no evidence to support the factual findings made or they are plainly untenable or (Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 at 1030 per Skarman LJ) if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact.[5]So was the second review flawed in one of those ways? The first way in which it was suggested that it was flawed is that the reviewing officer failed in effect to pay proper attention to what had been said by HHJ Collins. HHJ Collins said this:
“Mrs Abdullah is not looking for a social life of a visiting nature which is what the reviewing officer seems to be talking about but contact of a day to day physical nature to help with every day problems of the kind which, because of the mental physical and family pressure she has got, are difficult for her to cope with without everyday support.”
[6]It was suggested, I think, that HHJ Collins’s decision should be taken as in some way binding the second review as to the question of whether there was need. He had set out, and I do not set it out again, all the various letters who had supported the appellant’s case and pointed to need. But I do not read him as making any findings of fact nor could it have been his function so to do. I read his decision as directing the reviewer to pay proper attention to see whether there really was a proper case of need because that was the case that was being advanced. Accordingly, insofar as it was a free-standing ground of appeal I see no basis in it. The real question to my mind is whether the second review decision properly and adequately deals with the case of need which was advanced, most particularly: when he reached the conclusion that there was no need, was there an adequate basis for that conclusion?[7]Before coming to that question, however, I have to say that I do not regard the fourth paragraph of the second review letter as satisfactory. The review officer said this:
“The judge took the view that the only real point on the appeal was the question as to whether I had failed to have regard to the fact that your client had moved to Westminster from Barnet because of support available to her here from family and friends in Westminster to assist her in raising her children and coping with the daily demands of ordinary living.”
That was not what HHJ Collins was saying. He was not interested as to why Mrs Abdullah had moved from Barnet. He was saying the real question is whether or not there was a real need for Mrs Abdullah to live in Westminster because of the support that she should get there.[8]If indeed the review officer had then gone on to consider that point and based his decision solely on that point I think it would have been flawed, but he does not actually go on in his decision to base himself simply on the question of the move from Barnet. It is true that he begins on that point and does so in a not terribly satisfactory way because the suggestion here is merely that she just moved from Barnet. What he said is:
“I note that your client chose to move to Westminster by her own undertaking because she had suffered harassment in the Barnet area. She found her own accommodation in Westminster by her own resourcefulness and Barnet merely assisted her in securing that accommodation with a rent deposit.”
That rather understates the position. Barnet had actually positively assisted the move and supported it, as appears from a children and family worker letter of Barnet Council. The letter includes the sentence:
“Mrs Abdullah has relations living in the Borough of Westminster and I believe it would be better for the welfare of her and her children if she could transfer there.”
[9]But I do not regard this as the heart of the decision letter. The heart of the decision letter is in the next four paragraphs: (And this should be incorporated in my judgment. The last four paragraphs of page 13 of the appeal bundle) – THIS DOCUMENT WAS NOT SUPPLIED, THEREFORE UNABLE TO INSERT RELEVANT TEXT. From these four paragraphs two points emerged in the course of argument which led Mr Mendes de Costa to seek an amendment to the grounds of appeal. Mr Pryce was, in effect, content that he should be allowed to argue these points and for my part I would allow him to do so. What really matters is whether there is any substance in them.[10]The first is that the decision letter refers to advice or information that was obtained from Westminster Social Services. The reviewing officer says that on more than one occasion Westminster Social Services told the housing department that an offer of accommodation in east London was not unsuitable. He adds that in effect the social services are likely to know because they would be deeply involved in the family. I was originally quite concerned about this because I could not see where in the material there were these two occasions; however, a file has been made available to this court and, although it is not entirely clear that it was available to the appellant, I am reasonably satisfied that that was so. Mr Gary Price told us that on the first review an order had been made for disclosure. There was an order for disclosure on the second review which may not have been complied with on the basis of it already being disclosed. At any rate, the material we have does indeed show two occasions when Westminster Social Services told the housing department that an offer of accommodation in east London was not unsuitable. It is not all that easy to read this material. I am grateful to Mr Pryce for directing us in the direction in which you understand these documents and what the dates actually mean and which they refer to.[11]The first entry which matters is dated 27 July 2005 and reads, from social services:
“We have no objections whatsoever. You can get good accommodation for them. This is most welcome.”
That plainly is indication that social services are happy about the move. The other entry is a little more difficult to follow. It is dated 15 September 2005:
“Spoke to Siho Mpfu, social worker. Mrs Abdullah has been pressing her to write a letter in support of her review. However, social services do not support her view. They claim the accommodation in Barking is suitable and Mrs Abdullah does not have friends or family in [Westminster City Council] or any other strong connections. Social services have arranged for supported placement in Battersea for Mrs Abdullah’s son, Nabil, not on application.”
Now what is odd about that is that Mrs Abdullah certainly does have friends or family in Westminster. What Mr Pryce says is “well, yes, plainly there are all those letters but if there really was as much support as is being suggested then social services would have known about that”. It is not a matter for this court to form a judgment one way or the other. The question is: was there sufficient material for the housing review officer to come to the decision he did? And I cannot say, on the basis of those two entries, that what he said in his review determination was not supportable.[12]I turn to the second point where it is suggested that he had no, or no adequate, evidence, and that was the medical evidence. His sentence reads:
“I have also considered that, although the medical information on file says that it is advantageous for her to have support from her family and friends, it does not suggest in any way that she cannot cope without it.”
[13]He was, after all, considering the question of need, not mere strong convenience. We looked at the various doctors' letters and in some cases letters from people who, although not doctors, would have been likely to have had some medical knowledge. The first is from a doctor in north London, NW9, I think before she moved to Westminster. The doctor says:
“She is finding it very difficult to cope with his [that is her son’s] behaviour and finds a lack of support in this area. She has family in Westminster and she would welcome a transfer to this area where she would have adequate family support to deal with her son’s, Nabil’s, behaviour. Because of the current mental state of Mrs Abdullah, which is very near to a nervous breakdown, I would be very grateful if you could give certain consideration to rehousing this family within the Westminster area as soon as possible.”
There was also a letter from the health visitor on 16 August 2005, by which time she had moved to Westminster. It says:
“During the time I have been visiting her she has been emotionally very labile and dependent on the support of her family to cope with everyday activities.”
Later on she says:
“I would strongly support the placement of this lady and her children to a locality that allows her family to continue to be significantly involved in visiting, or the care of, her children, thus(?) ensuring mother’s mental health stability.”
There is then a doctor’s letter of 31 August 2005. It is not entirely clear whether this is a treating doctor or a medical opinion obtained for the purposes of the case; it is addressed to Mrs Abdullah’s solicitors. The key parts of the letter read:
“She has several problems with her children, especially the eldest, and they have a social worker involved. She needs a lot of local support from friends and family. Unfortunately, this lady does not speak any English and all her friends and relatives live around Westminster area. She does need their help to bring up her children with less stress. She is also awaiting several appointments at St Mary’s hospital.”
There is also a letter of 24 November 2005 from a lady who describes herself as a health advocate. Nobody was quite sure what the position of the health advocate is but the letter says:
“In addition to the physical problems with the property, Mrs Abdullah is finding it extremely difficult to cope when she is so isolated from her family and friends who have formally acted as her support network. She has found it very difficult to make social contact in this area where there is no significant Arab speaking community and where, in any case, she finds it very difficult to make her way around in unfamiliar territory due to her physical disability.”
And lastly there is a letter from someone describing herself as a family support coordinator; perhaps not quite medical but it seems to refer to medical matters. She says:
“Having visited this woman, having talked to her children, I am really concerned about her situation and hope you will urgently consider her request for accommodation in the Westminster area where she has family who can support her and assist her with caring for the children, and therefore kindly ask you for your urgent consideration in this family’s case so as to avoid any further distress, especially to the children.”
Now does that collection of medical material justify what was said in the second review, which is summarised as saying it is advantageous for her to have support from her family and friends; it does not suggest in any way that she cannot cope without it? This has caused me some considerable worry because that material is not entirely fairly summarised by what is said here. But I think, bearing in mind that this is not a legal document to be construed like a will or a statute, there is enough, and only just, to justify the statement. What is really being said, if one summarises the medical material overall, is that it would be much, much, much better for this lady to be in Westminster, but not quite that she cannot cope without it.[14]Bearing in mind that this is a court which deals with questions of law, it is not asked to form its own view as to what should be done, and indeed is not in a position to know all the other pressures that would exist in Westminster, I have come to the conclusion that the second review did sufficiently consider the points which it was required to consider by the decision of HHJ Collins. I do not reach this decision with much joy. It would be much better for this lady to be in Westminster. Mr Pryce told us that, given her current position in temporary accommodation, there is an outside possibility that either nearer accommodation would become available if she bids for it or that, at some point or other, permanent accommodation would be provided within Westminster; but as matters stand, I fear that I can see no fault in the second review letter. It follows that there was no fault in the judgment of HHJ Harris in upholding that letter. Accordingly, I would dismiss this appeal.[15]I agree. Reviewing officers are not judges and have no legal training. They are decision makers, often overworked. This reviewing officer was at the time the only officer conducting reviews under section 202 of the Act of 1996 for the whole of the City of Westminster. Reviews of reviewing officers, when subject to appeal to the county court under section 204 of the Act, are not to be subject to the degree of analysis apt to an appeal to this court from a judgment of a professional judge; and the appeal to the circuit judge is only on a point of law. That said, as I am sure the reviewing officer would in retrospect accept, this second review was hardly his finest hour.[16]Like my Lord, I have had serious difficulties with the way in which the reviewing officer has cast his decision. I have had four difficulties. The first was his articulation of the real point upon which HHJ Collins had quashed his first review and thus remitted the matter to him for second review. My Lord has explained his curious articulation of the point. Second was the way in which he put to one side the evidence of ten members of the appellant’s wider family or circle of friends as to her alleged need for support in Westminster. He did so by reference to two short hearsay notes in the Homelessness File as to what the allocated social worker within Westminster had said, namely that she saw no objection to the appellant’s placement in east London and was unaware of any support network in and around Westminster. In the light of the ten letters, the reviewing officer wisely hastened to accept that there was a support network in Westminster; but he went on to dismiss their significance upon the basis that, if the social worker did not know about the it at all, then the support network could hardly be significant. In my view that is a thin reason for consigning the evidence of the ten friends and family members to insignificance. Third was the way in which he dealt with the medical evidence adduced before him on behalf of the appellant: he said that it did not suggest in any way that the appellant could not cope without the support of family and friends in and around the Westminster area. My Lord has analysed the relevant medical evidence; and my view is that the thrust of it is not happily expressed in the terms in which the reviewing officer dismissed its significance. Fourth is a matter upon which my Lord has not touched. For there were two sentences in the first review which HHJ Collins specifically addressed and said had missed the point; in those circumstances it is odd, to put it no higher, that those sentences should have found their way verbatim into the second review letter.[17]But, when all is said and done I have to say that I believe that a fair reading of his second review letter is that the reviewing officer did by then understand the appellant’s case, namely that she needed to be in or close to Westminster in order to cope with life and the care of her children; and I believe that it was just about open to him to conclude, as he did, that she did not have so strong a need as to make it other than “suitable” for her to be placed in Barking. With a reluctance analogous to that expressed by my Lord, I concur in the dismissal of the appeal.[18]I too agree that the application for permission to appeal should be allowed but that the appeal should be dismissed, primarily for the reasons given already by my Lord, Lord Justice Jacob. I would like to add these observations. First, the main ground of appeal revolves around HHJ Collins’ criticisms of the housing review officer’s first decision. It is said on behalf of Mrs Abdullah by Mr de Costa, who appears on her behalf, that, on the second review, the housing review officer should have worked on the basis of the need which he submitted had been found by the judge. I agree with what Jacob LJ has already said about that point. Mr de Costa had a full-back position, which was that the housing review officer on the second review should have shown deference to the views of the judge, and that it was inconsistent with the rule of law that the hearing should proceed on any other basis. He had got to give, and to be seen to give, sufficient weight to what HHJ Collins had said in his judgment setting aside the decision on the first review. In my judgment, this submission misunderstands the reasons why HHJ Collins said that there had been a need. He identified that need in order to identify the material consideration which, in his judgment, the housing review officer had omitted to mention. There would still have to be a second review; and it would be inconsistent with that review, being a fresh review -- and my Lord has held it to be necessary to be, with which I agree -- for the officer dealing with the second review to do so on the basis of any particular disposition. He had to look at the matter afresh. Of course he would pay respect, and should pay respect, to what the judge had said and take account of his judgment, but there was no question of deference or giving what the judge had said any particular weight which would alter the normal method of review.[19]Secondly, I would like to make a few short points about the chronology in this case. Mrs Abdullah came to this country and first went, as I understand it, to Sheffield. She then, in March 2005, came to London and was accommodated at Maida Vale. She was there for three months when she was moved to bed and breakfast accommodation in Fitzjohns Avenue, London NW3, in the Borough of Camden. From there she moved, in August 2005, to Barking and, as I understand it, she has remained there since that time, living there with three of her children, one of her children remaining in Westminster with the support of Westminster Social Services. The children are of school age and were of school age, just, at the time of the second review decision. It is apparent from the chronology that the prior experience of living in Westminster which Mrs Abdullah had was a comparatively short experience; whereas she has been living, and had at the time of the second decision, been living in Barking for some time.[20]I now wish to turn to the letters which were produced in support of Mrs Abdullah’s application; and here Mr Pryce submitted that the housing review officer was entitled to give such weight to those letters as he thought fit, having considered them. We have been through all ten letters. I note that they refer to the writers of the letters and their spouses and families giving Mrs Abdullah help or support. All those letters speak of involvement with her and her children; but the letters do not contain specific examples of the help given or proposed to be given in the future. They do say various things about the medical condition of Mrs Abdullah but on that I also accept Mr Pryce’s submission that the housing review officer was entitled to look to see what doctors had said about the medical condition of Mrs Abdullah. Accordingly, on the question of the letters, and in deference to my Lord, Lord Justice Wilson, I would accept the submission that the housing review officer was entitled to give those letters such weight as he thought fit, and the weight he concluded that he should give them did not demonstrate that he had come to a plainly untenable decision about them.[21]I want to make one final point, my fourth point, which relates to the repetition of material from the first decision letter to the second decision letter. I accept that this is a point which ought to be made to the court but at the end of the day, in logic, the court still has to look to see whether the second review letter is open to challenge before the court, in terms of the passage which my Lord, Lord Justice Jacob read from the speech of Lord Bingham in Runa Begum v Tower Hamlets. While it is right that we look to see what material was really mere repetition, nonetheless we have to satisfy ourselves as to whether that test is met or not.[22]In conclusion, I agree with my Lords; the appeal should be dismissed. And, as I have said, I agree with the reasons given by my Lord, Lord Justice Jacob and, to the extent not explained above, with those given by my Lord, Lord Justice Wilson. In matters of emphasis I have, as explained, found my position closer to that of Jacob LJ.

Order

Appeal dismissed.