Simms v London Borough of Islington [2008] EWCA Civ 1083

[2008] EWCA Civ 1083

Case No B5/2007/2854

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MAYORS AND CITY OF LONDON COUNTY COURT

HIS HONOUR JUDGE SIMPSON

7EC04887

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 10 2008

Before

THE RT HON. LORD JUSTICE WARD

THE RT HON LORD JUSTICE MOORE-BICK

THE RT HON LORD JUSTICE RIMER

Between

SimmsAppellant

London Borough of IslingtonRespondent

Mr Edward Fitzpatrick (instructed by Tyrer Roxburgh & Co) for appellant

Mr Iain Colville (instructed by London Borough of Islington) for respondent

Hearing Hearing date: 10th June 2008

Judgment

Introduction

[1]James Simms, the appellant, is a 37 year old single man homeless on the streets. The question is whether he is in priority need for accommodation to be secured for him by the local housing authority. The problem is that he has a long history of use of crack cocaine and cannabis although at material times he has been receiving some drug addiction therapy. The issue is whether he is vulnerable as a result of mental illness or handicap or physical disability or other special reason within the meaning of section 189 of the Housing Act 1996. The respondent housing authority decided that he was not in priority need. That decision was upheld on 27th November 2007 by His Honour Judge Simpson on appeal to the Clerkenwell and Shoreditch County Court. Longmore L.J. granted him permission to bring a second appeal to this Court.

Factual background

[2]Mr Simms has suffered his share of life’s misfortunes. He had a troubled childhood. It left him educationally disadvantaged. Family bereavements have caused him considerable grief. He has had to endure a number of medical problems. He became addicted to drugs. To cap it all, he lost his job, was unable to pay his mortgage and lost his home. Friends gave him temporary respite but he was eventually reduced to sleeping in his car on the street. On 11th January 2007 he applied to the housing department of the London Borough of Islington as a person in priority need of accommodation.

[3]His application was supported by Addaction Hackney, a charity helping individuals and the community to manage the effects of drug misuse. Their Dual Diagnosis Practitioner wrote on 18th December 2006:

“James has a long history of crack-cocaine use and is on an ongoing drug addiction therapy. He first presented to our services on 27th November 2006 and has since been supported around issues related to his drug use. In addition, James has other significant health issues. He is asthmatic and suffers from depression and panic attacks. He is currently on sabultamol and 40 mg of fluoxetine daily. James reports that he has been homeless since April 2006 and he sleeps rough on the street. This is a big concern for us as it puts him at high risk considering his current medical condition. The above makes James vulnerable and it is feared that with all the stress associated with his current homelessness, he is at high risk of being subjected to abuse or any other criminal activity. He definitely needs a stable accommodation to help him get stabilised during his treatment process.”

[4]In response to the Housing Services’ questionnaire, his general practitioner, Dr Anantha, on 10th January 2007 described his disabilities as:

“Moderate, depressive episode, using illicit substances regularly (crack/cocaine/cannabis) for the last two years since father died. Also reportedly lost his employ, home & any income.”

His discomfort whilst undertaking normal activities of daily living was described as:

“Low mood, insomnia, anxiety and depression reportedly prevent patient from leading a normal life. Sleeps at houses of friends/family.”

He was said to be suffering anxiety and depression. Asked whether his current physical/mental health was likely to affect his ability to find a suitable place to live, he answered, not “Yes” nor “No”, but “Uncertain” and gave this explanation:

“Patient is reportedly depressed and using illicit substances. Mental state poor. Is not in employment and sleeping temporarily in various places. He also has panic attacks emanating from his current socio-economic state complicated by drug abuse. Panic attacks reported prevent him from adequately preparing for job interviews.”

[5]Without seeing Mr Simms, the local authority’s medical assessor concluded that he was not medically vulnerable, commenting as follows:

“Based on the report from GP, I am of the opinion the applicant is not vulnerable within the meaning of the Act. It appears depression could be related to illicit drug use. I also note antidepressants were commenced. Prescribed recently may not [have] had desired effect as yet. Applicant to be reassessed by community psychiatric nurse for a diagnosis of ongoing problem.”

[6]On 15th March 2007 a senior practitioner in the Single Homeless Team of the Housing Authority decided that he was not vulnerable and so not in priority need for housing assistance. On 29th March his solicitors sought a review of that decision making a detailed criticism of it and supplementing information about the appellant’s health and background. They asserted that it was quite clear that in his case the Pereira test (which I deal with below) would be satisfied saying:

“It is inconceivable Mr Simms would not suffer injury or detriment when homeless given his medical condition and particularly given his struggle to cease addiction to crack cocaine.”

Additional representations were made from 16th July 2007 drawing attention to a further report from Dr Anantha dated 2nd May. This report listed his difficulties and in addition to his longstanding drug addiction, his anxiety and depression and panic attacks listed his suffering morbid obesity, chronic smoker’s cough and breathlessness and current chest infections likely related to smoking. Dr Anantha stated that:

“The purpose of this report is to outline Mr Simms’ various problems and to confirm that he has a poor quality of life and health which will only worsen if he is rendered street homeless. … Under the circumstances, should Mr Simms become street homeless, I fear he may revert to the regular use of illicit substances and generally [be] unable to fend for himself, being made vulnerable by his poor mental and physical health. Being street homeless will likely worsen his eating habits, which in turn will have an adverse impact on his already dangerously high obesity level; his mental state will undoubtedly worsen; and I fear he may revert to the regular use of illicit substances. Naturally, his poor state of mind will also preclude any consistent attempt at finding suitable employment.”

[7]On 19th July 2007, the Principal Appeals and Complaints Officer decided that the appellant did not have a priority need for accommodation and the decision of 15th March was therefore upheld. Reasons were given at length in a seven page letter on which I numbered the forty-three paragraphs. I will summarise the reasons for the decision. The Officer applied at [3] – cases to which I will need to refer more fully below – “[3] In determining whether you are vulnerable within the meaning of s.189 of the Act, we have applied the overall, general test. In R v Camden LBC ex parte Pereira and Osmani v LB Camden the Court of Appeal held that the correct approach to priority need is a dual test as follows:- [4] The test is whether the applicant, when homeless, is less able to fend for him/herself than an ordinary person so that injury or detriment would have resulted where a less vulnerable man would be able to cope without harmful effect and if so whether that vulnerability was caused by one of the elements identified within s. 189. … [7] We confirm that your case is considered on the basis that the prop of accommodation would be removed, this means that you will experience street homeless[ness] if you are not assisted by this Council. … [12] Pereira requires that the inability to fend for oneself whilst homeless will result in injury or detriment, which would not be suffered by an ordinary homeless person who would be able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk then the person cannot be considered vulnerable.”

[8]It is important to observe at the outset that it is accepted by the appellant that the decision-maker directed herself correctly and so no challenge is made to her approach to the issue she had to decide. The question is whether she properly applied the test to the relevant facts.

[9]The reviewing officer then recorded the medical reports and letters that were considered, namely the two reports from Dr Anantha, the letters from Addaction and Release and the two letters from the applicant’s solicitors dated 29th March and 16th July 2007.

[10]She considered the applicant’s medical problems, noting that the medication prescribed for his depression was a standard dose and that there were no psychotic features. She concluded:

“[14] Whilst we accept that you may be suffering from depression and panic attack, there is no evidence to suggest your condition is so serious as to render you vulnerable to injury or detriment if street homeless when compared to the ordinary person. In reaching our decision, we have taken into consideration the fact that you have a drug abuse problem for which you are seeking assistance and your current homelessness. These issues must have an adverse effect on your emotional state. Indeed anyone faced with these circumstances would suffer an adverse mental reaction. The reaction you have suffered is not unique to you but would be the reaction of any other individual faced with similar circumstances. It is also the case that the medical evidence does not suggest you have been so severely affected to be considered vulnerable.”

[11]There followed some analysis of the two medical reports, noting that the report of 2nd May is “slightly different as Dr Anantha … included six different health issues of concern.” The most significant problem was his anxiety and depression. The asthma was being “adequately treated”, and the chest infection did not appear to be severe. Thus:

“[20] In summary Dr Anantha advises that your poor mental state and physical health make you vulnerable. He adds that being street homeless will likely worsen your eating habits which in turn will have an adverse impact on you[r] already dangerously high obesity level. Your mental state will worsen and you may revert to the regular use of illicit substances. In consideration of Dr Anantha’s comments in this report/letters we are also mindful of the fact you do not have a medical problem, which might prohibit you from finding or maintaining accommodation.”

[12]In the next paragraph the reviewing officer took special account of his psychological state but concluded that the evidence indicated that his treatment for it was adequate and so the conclusion in paragraph [22] was:

“Considering your symptoms as stated in the housing context, I am of the opinion that this would not make you less able to fend for yourself than an ordinary person. With this in mind we believe that your depression is mild to moderate and does not prevent you from prioritising or pursuing those matters that affect your general wellbeing.”

[13]She had regard to the fact that depression “is an associated feature of your drug abuse” and referred to the letter of support from Addaction. It was noted in paragraph [24]:

“… that you have engaged positively with this support service to deal with your addiction. This no doubt will enable you to manage your addiction and also to bring about some improvement in your emotional state. The letter also states you are receiving support around issues relating to your drug abuse. [25] The progress you are making in addressing your drug abuse problem is admirable. However, though your commitment must be applauded, drug addiction is not a medical problem and as such one cannot be considered vulnerable because they are addicted to drugs or have been street homeless for a few months. While we accept that there are certain medical conditions, which may occur as a result of long-term drug abuse, we are not aware that you have any such condition which will give rise to vulnerability. [26] Having considered all the information provided in support of your application, as outlined in the main body of this letter, you cannot be accepted as one who is vulnerable when the ‘Pereira test’ is applied.”

[14]The letter then dealt with the representations made by the solicitors who had referred to his difficult childhood, his receipt of incapacity benefits and his not being able to work, none of which was considered to be of such severity as to render him vulnerable. The letter continues:

“[31] In reaching our decision we have also taken into consideration the fact that your homelessness, together with your drug abuse habit will have affected your emotional state, however, there is no evidence to suggest you have been affected to the extent that you could be considered vulnerable. We are also mindful of the fact that you are not reported to suffer any serious mental health condition.”

[15]Then the reviewing officer took account of the local authority’s adviser’s assessment saying, “[32] … Wanting to reach an informed decision we sought the opinion of the Council medical officer, having considered the medical information, it is her opinion that you are not vulnerable. Dr Anantha has advised that taking the general condition as a whole with your poor state of mind he recommended that you are more vulnerable than average. However whilst we accept and value the opinion of experts, the question of determining vulnerability is ultimately that of the local authority, on this occasion we agree with the opinion of the Council’s medical officer. [33] Having considered your physical and mental health problems as stated and their cumulative effect, we are satisfied that your condition is not such that you could be considered vulnerable within the context of the Pereira test or within the meaning of the Housing Act 1996 s. 189 (as amended).”

[16]The reviewing officer specifically considered whether he could be considered vulnerable as a result of some other special reason and concluded:

“[35] With regard to any “special reasons” we do not find that you are vulnerable under this criterion as you are not one who has suffered with the effects of social exclusion or isolation as you have benefited and continue to receive support from organisations [albeit] short term support, you have also received support from your friends and family.”

[17]The decision letter then addressed the applicant’s ability to fend for himself and the conclusions were as follows:

“[38] Again, we are not aware of any medical or social factors, which might inhibit your ability to fend for yourself. There is no indication from the information provided that you are not able to fend for yourself in terms of securing your own accommodation. You would appear to be going about and dealing with those aspects of your life that would affect your wellbeing such as, housing, seeking legal advice, medical assistance, benefits etc in the same way as would any other member of society. You are resourceful and able to prioritise your affairs. These are the attributes of an ordinary person, and not one who is unable to manage owing to some physical or mental disability or some other special reason. [39] We are satisfied you are not so adversely affected, neither mentally nor physically as to be inhibited from coping with day to day living or to the extent that you are incapable from making any decisions that might affect your life. [40] On review, this council is satisfied that you are not vulnerable within the meaning of the Housing Act 1996 Pt VII s. 189 (those categories of person with a priority need for re-housing) on application of the Pereira test.”

The Judgment of His Honour Judge Simpson

[18]This is as short as the decision letter was long – though it may not be the worse for that. He held that since the reviewing officer referred to the question of relapse by citing Dr Anantha’s report (see paragraph 20 of the decision letter) this fact must have been considered by the reviewing officer. The judge refused to embark on “an artificial exercise and conduct a dissection of the letter” because it must be read as a whole. The reviewing officer was experienced in these matters, applied the correct test “in full knowledge of the impact of homelessness and the knowledge that the appellant continues to receive treatment for his addiction”.

[19]There were essentially three grounds of appeal:(1) that the reviewing officer had not properly taken into account whether, having regard to the risk of a relapse, the appellant was vulnerable as a recovering drug addict for some “other special reason”;

(2) that the reviewing officer had not properly taken into account all the medical evidence bearing in mind that the council’s medical assessment adviser had neither seen the appellant nor consulted with his advisers. Moreover she had not been given the opportunity to consider Dr Anantha’s second report of 2nd May;

(3) that the reviewing officer had not properly considered how street homelessness would impact on the appellant’s psychiatric condition.

The Law

[20]This is not a case for any great exegesis of the law because there is no challenge to the approach taken by the reviewing officer to the questions she had to decide.

(c) of the Act, namely whether he was:

“A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason …”

[21]The Code of Guidance throws further light on the question:

“10.13 It is a matter of judgement whether the applicant’s circumstances make him or her vulnerable. When determining whether an applicant in any of the categories … is vulnerable, the local authority should consider whether, when homeless, the applicant would be less able to fend for him/herself than an ordinary homeless person so that he or she would suffer injury or detriment in circumstances where a less vulnerable person would be able to cope without harmful effects. 10.14 … The assessment of an applicant’s ability to cope is a composite one taking into account all of the circumstances. The applicant’s vulnerability must be assessed on the basis that he or she will become homeless, and not on his or her ability to fend for him or herself while still housed.”

As for ‘other special reason’ the Code informs us:

“10.30 … The legislation envisages that vulnerability can arise because of factors that are not expressly provided for in statute. Each application must be considered in the light of the facts and circumstances of the case. Moreover, other special reasons giving rise to vulnerability are not restricted to the physical or mental characteristics of a person. … 10.31 Housing authorities must keep an open mind and should avoid blanket policies that assume that particular groups of applicant will, or will not, be vulnerable for any ‘other special reason’. … housing authorities must ensure that they give proper consideration to every application on the basis of the individual circumstances. In addition, housing authorities will need to be aware that an applicant may be considered vulnerable for any ‘other special reason’ because of a combination of factors which taken alone may not necessarily lead to a decision that they are vulnerable (e.g. drug and alcohol problems, common mental health problems, a history of sleeping rough, no previous experience of managing a tenancy).”

[22]So far as the authorities are concerned, one of the earliest is R v Waveney District Council ex parte Bowers [1983] Q.B. 238 where the applicant’s drink problem was exacerbated as a result of serious head injuries suffered in a road accident. In the judgment of the court (Waller, Donaldson and Griffiths L.JJ.) at p.244:

“The question we have to consider is whether or not the applicant is vulnerable and secondly whether the vulnerability is as a result of old age, mental illness or handicap or physical [disability] or other special reason. … vulnerable in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects.”

[23]That test was refined in R v Camden Borough Council ex parte Pereira (1999) 31 H.L.R. 317 per Hobhouse L.J. at p. 330:

“Thus, the council must ask itself whether Mr Pereira is, when homeless, 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. … it is still necessary … to take into account and assess whether in all the circumstances the applicant's inability to cope comes within paragraph (c). It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment.”

[24]Some confusion then arose but was cured by Osmani v Camden London Borough Council

[2004] EWCA Civ 1706

, [2005] H.L.R. 22 where the test was restated in these terms by Auld L.J. at p. 339:

“In its immediate context, Pereira established that a homeless applicant's lesser ability than that of “an ordinary homeless person” to fend for himself in finding suitable accommodation may, on its own or in combination with other circumstances, amount to vulnerability for this purpose. However, the test does not impose as the sole, or even an integral, requirement of the notion of fending for oneself that an applicant should also be less able than normal to fend for himself in finding accommodation.”

Auld L.J. stressed (also at p.339) that “a necessarily imprecise exercise of comparison” is imposed on the local housing authority with the result that decisions are likely to be highly judgmental and the housing authority is likely to be best placed in most instances for making such a judgment. Thus decision letters should not be treated as if they were statutes or judgments and subjected to “pedantic exegesis”(see p.342). When looking for the reasoning in such a letter it is important to read it as a whole to get its full sense.

[25]Mr Fitzpatrick, counsel for the appellant, seeks to derive considerable support for his appeal from obiter observations in the judgment of the Court delivered by Sedley L.J. with Latham and Longmore L.JJ. in Crossley v Westminster CC

[2006] EWCA Civ 535

, [2006] H.L.R. 26, another case where the applicant had a long addiction to drugs but had managed for some months to be abstinent. The Court said this in paragraph 30:

“30. … Plainly drug addiction by itself, for all its personal and social consequences, cannot amount to a special reason for vulnerability which is capable of being addressed by housing. If there was a special reason here, it began with the fact that Mr Crossley, as a recovering addict, was vulnerable to relapse if he had to remain on the streets. So seen, the condition does not attract the policy questions raised by self-induced states.”

[26]The second ground of appeal relates to the reviewing officer’s treatment of the medical evidence. In this regard Auld L.J. said in Osmani at p. 341:

“8) Nevertheless, 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 this statutory issue of vulnerability.”

[27]Mr Fitzpatrick relies on Shala v Birmingham City Council

[2007] EWCA Civ 140

, [2008] H.L.R. 8. The facts there were starkly different from the facts in the case before us. There the appellants were a couple who had to flee from Kosovo. The wife submitted evidence from her general practitioner that she suffered depression and the view of the authority’s external medical adviser was that there was nothing in that evidence to suggest that her condition was particularly severe. The wife then produced a report from a psychiatrist but the council’s medical adviser concluded that there was “no particular assertion of severity” in that report. Subsequently the wife produced two further psychiatric reports which were not even referred to the council’s medical adviser before it decided to reject her claim that she was in priority need. The court held that the reviewing officer wrongly dismissed the psychiatric evidence. As to the advice given without examining the applicant, the Court said this at paragraph 23:

“there is no rule that a doctor cannot advise on the implications of other doctors' reports without examining the patient; but if she does so, the decision-maker needs to take the absence of an examination into account.”

Discussion The risk of a relapse

Discussion

[28]Mr Fitzpatrick’s central submission is that although Dr Anantha’s second report was summarised in the decision letter, at no point in the decision is there any assessment of how street homelessness would affect the appellant in his recovery from drug addiction. He submits that this was a significant fact which was overlooked for there is nothing in the decision letter to show that the risk of relapse was properly evaluated. The error made by the decision maker was to view drug addiction only in terms of its effect on his health. Mr Colville, for the respondent, submits that the decision maker did have the risk in mind because it is expressly dealt with in the summary of Dr Anantha’s report as set out in paragraph 20 of the decision letter. He accepts that paragraph 25 of the letter refers to the results of long term drug addiction causing certain medical conditions. The real reason for reciting the risk is that the Addaction report demonstrated that the appellant had engaged positively with the help he was being given and any risk of relapse would be alleviated by that support.

[29]I prefer Mr Colville’s analysis of the decision letter. Dr Anantha warned of three risks of adverse impact from being homeless on the street. The first related to the increase in his dangerously high obesity level. The second to the deterioration in his mental state and the third to his reverting to the regular use of illicit substances. The appeal has focused on that third risk. Having expressly referred to it, I do not see how it can validly be asserted that the decision maker overlooked that fact. The council were well aware of the fact that the appellant had been seeking assistance to deal with his drug abuse problem (see paragraph [14]) and the housing authority were entitled on a consideration of all the facts and circumstances of the case to conclude that with help and support there was no sufficiently substantial risk of detriment as to lead to a conclusion that he was vulnerable. Having reviewed all of the facts and circumstances of the case, including the risk of relapse, the decision maker was satisfied that he was not a person less able to fend for himself than an ordinary person so that injury or detriment would have resulted where a less vulnerable man would have been able to cope without harmful effect. It may be that others may have reached a different decision but Mr Fitzpatrick accepts that the decision was not perverse and so it follows the conclusion was one which the housing authority were entitled to reach.

[30]I do not consider it necessary to express a view as to how far the obiter remarks of the court in Crossley are generally applicable because I am satisfied that the risk of relapse was a factor which the decision maker bore in mind in this case. I see no error in the way the decision maker took account of the issue of whether the appellant was vulnerable for some other special reason because as a recovering addict he was at risk of a relapse. I would therefore dismiss the appeal on this ground.

The medical evidence

[31]The decision maker correctly addressed herself in paragraph [32] that the question of determining vulnerability is ultimately that of the local authority which was fully entitled to prefer the opinion of its adviser to the opinion of Dr Anantha. There is no requirement for a local authority in each and every case to refer each and every report for evaluation by its adviser. That must depend on the facts of the matters in each case. In Shala’s case there was a demonstrable need for expert advice to diminish the impact of the psychiatric evidence there presented to the reviewing officer. Here Dr Anantha’s second letter was slightly different because it added reference to his morbid obesity and the difficulties caused by his excessive smoking. These were, however, not differences of such significance as to have rendered it unreasonable for the housing authority not to have sought a further opinion. It was a matter for the reviewing officer. She was fully entitled to act on the information before her. Reading the letter as a whole, there is no reason to think that the decision maker did not appreciate that the local authority adviser had reported without examining the patient, without consulting Dr Anantha and without having had Dr Anantha’s second report referred to her. In my judgment the decision is not vitiated because no express reference is made to those points. This ground of appeal also fails.

The impact on the appellant’s psychiatric condition

[32]As Longmore L.J. observed when granting permission to appeal this ground is not arguable if the appeal otherwise fails. I agree. Reading the letter as a whole it is quite clear that the reviewing officer did properly consider how street homelessness would impact on the appellant’s psychiatric condition. She was entitled to conclude it did not render him vulnerable within the meaning of section 189(1)(c) of the Act.

Conclusion

[33]In my judgment this appeal must be dismissed.

[34]I agree.

[35]I also agree.