Keita v London Borough of Southwark [2008] EWCA Civ 963

Case No B5/2008/0514[2008] EWCA Civ 963
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Case No 7LB04535
ON APPEAL FROM THE MAYOR’S AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE SIMPSON)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 1 st July 2008
Before
LORD JUSTICE RIMER
Between
SULAIMAN KEITAAppellantLONDON BOROUGH OF SOUTHWARKRespondent
(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 Bruce Tattersall appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal. The applicant is Sulaiman Keita, who has been represented by Mr Tattersall. The respondent is Southwark Borough Council (“Southwark”). The proposed appeal is against an order dated 23 January 2008 made by His Honour Judge Simpson in the Mayor’s and City of London County Court.[2]The primary matter before Judge Simpson was an appeal under section 204 of the Housing Act 1996, which the judge dismissed with costs. There may, but it appears to me unclear, also have been before him an appeal under section 204A, with which the judge, if it was before him, did not deal separately. The proposed appeal is a second appeal against the dismissal of the section 204 appeal. Sir John Chadwick refused permission on the papers on 5 June 2008. He was of the view that the appeal did not cross the CPR Part 52.13 threshold and that the judge was entitled to regard the appeal before him as entirely without merit.[3]The applicant, who is 37, is a citizen of the Republic of Ireland, although he was formerly resident in Sierra Leone. Upon the outbreak of civil war there in 2000, he fled first to Holland and then to the United Kingdom, arriving here in December 2003. He suffers from post-traumatic stress disorder as a result of his experiences in Sierra Leone, related depression, psychological distress, an inability to understand complex issues, a lack of awareness of his situation and possibly, although the evidence about it seems to be imprecise, certain mental health problems. In addition, his right shoulder remains injured following a traffic accident in Holland.[4]Whilst in the UK he was living at some stage in rented accommodation in Brixton but he became street homeless in January 2006 following an assault upon him by his landlord. In March 2006 he was given a temporary licence to occupy St Mungo’s Trust accommodation at Grange Road Project, 41 Crimscott Street, SE1. St Mungo’s is a homeless charity. A condition of his licence, in paragraph 5(v), was that it was terminable when suitable alternative accommodation was offered to him. St Mungo’s purpose is to assist vulnerable people and, at an appropriate stage, to encourage them to move on. In December 2006, after he had been in residence at Crimscott Street for some months, he was accepted on to St Mungo’s Clearing House waiting list for permanent accommodation. An unreasonable refusal of accommodation offered by the Clearing House ordinarily results in removal from that list.[5]In March 2007 the Clearing House offered the applicant accommodation at Flat 17, 66 Christchurch, SW2. He refused it, following which he was removed from the clearing list and St Mungo’s gave him notice to quit the accommodation he was occupying. He appealed against the decision to remove him and, whilst it is unnecessary to detail why the decision was made, it was decided that he should be offered another property and the notice to quit was withdrawn.[6]On 23 April 2007 the Clearing House offered him accommodation of a one-bedroom, partly furnished property, being Flat 4, Ebury Mews, SE27 (“Flat 4). It was not a bedsit property and it is described in the papers as a one-bedroom mews house. It was owned by Hyde Housing Association, a social housing provider. The applicant refused this property as well, on the basis that the rent, which was to be £92.71 a week, was too high as he intended to come off Housing Benefit in the future and start work; and also that he did not like the area, the complaint being that it was too close to the property in Brixton where he had earlier fallen out with his landlord. He refused to view the property.[7]The applicant attended an interview with his project manager on 27 April 2007 about the offer, who wrote to him on the same day recording his reasons for refusing the offer. That letter also recorded that the project manager had advised the applicant to put his refusal and his reason for it in writing, but he had refused to do that too. As the applicant had refused an offer of suitable alternative accommodation, St Mungo’s gave him notice to quit and on 28 May 2007 he was evicted from his accommodation in Crimscott Street.[8]On 31 May 2007 the applicant made a homelessness application to Southwark under Part VII of the Housing Act 1996. Pending its disposal, he was housed by Southwark at a hostel in Hillbeck Close, SE1 (see section 188).[9]On 16 July 2007 Ms Johnson, a case worker with Southwark, made a decision under section 184 that Southwark was under no duty to house him. Although she accepted he was eligible for assistance, homeless and in priority need as vulnerable, she was satisfied that he had made himself homeless intentionally. She referred in her decision letter to the definition of “becoming homeless intentionally” in section 191 and found that the applicant’s refusal of the offered accommodation meant that he had so made himself homeless. She expressly considered section 191(2) and said she was satisfied that he knew the facts relevant to the offer of accommodation and so was precluded from saying that he was relevantly ignorant so as to avoid the charge that he had acted deliberately within the meaning of section 191(1). The result of her decision was that Southwark owed the applicant no higher duty than that described by section 190.[10]On 23 July 2007 the applicant, by then being assisted by an Advice Centre, sought a review of that decision under section 202. The case advanced on his behalf asserted that he had been told Flat 4 was a bedsit, whereas he had been medically advised not to accept a bedsit or studio accommodation. Nor could he consider a property in the same area where he had suffered violence from his former landlord. His case, as advanced by the Advice Centre, was that his alleged refusal of the offer was not a deliberate act and the representations on his behalf continued:
“as he says, it was not an offer, his understanding was that he made it clear from the outset that he should not be asked to view a bedsit property, he thought he was just making his needs clear. He says he was not asked to view the accommodation and that the interviewing officer told him that Hyde would contact him when a more suitable accommodation became available … Mr Keita made his decision regarding the accommodation on offer in good faith, it could not be regarded as deliberate when it was based on information he had received from the authority’s own medical assessment team, it had given him the genuine belief that he could expect a one bedroomed property to meet his medical needs.”
It was also asserted that, prior to the section 184 decision, no reasonable inquiries were made into his case, including as to his medical needs.[11]On 11 October 2007 the reviewing officer, Ms O’Connor (who had interviewed the applicant on 9 October 2007), affirmed the decision under section 184. She rejected the suggestion that the applicant had refused Flat 4 because of a fear of violence in the area. She anyway rejected the suggestion that it was unsuitable for that reason. She rejected as unreasonable the point that the rent was too high in view of the intention to come off Housing Benefit and to work. She was of the view that if he did start work he would still be entitled to some benefit until the rent were judged affordable on his own income. Flat 4 was a housing association property so that the rent is assessed as being a reasonable one. She referred to the assertion by the applicant’s solicitors that he thought he need only reiterate the unsuitability of a bedsit property but she found he had never been told that Flat 4 was a bedsit property. Her decision was that the offered property was reasonable for him to occupy and that he had raised no issues that made it unreasonable for him to occupy it. Her conclusions were that he had deliberately refused the Flat 4 offer, thereby in consequence lost his Crimscott Road accommodation, with the result that he ceased to occupy that accommodation as a result of his refusal. Had he not refused Flat 4 that accommodation would have remained available to him until such time as he accepted permanent accommodation or broke the licence agreement. She found that the room in Crimscott Road was accommodation that it was reasonable for him to continue to occupy.[12]On 16 October 2007 the applicant was given notice to quit his accommodation at the hostel on 13 November 2007. On 31 October 2007 he requested Southwark to provide him with accommodation pending a disposal of his proposed appeal to the county court under section 204. Since Southwark had been under a duty to house the applicant under section 188, they had a discretion, although not an obligation, to continue that accommodation under section 204(4).[13]On 1 November 2007 the applicant issued an appeal under section 204 against the review decision to Lambeth County Court. The grounds described the appeal as against the decisions of Southwark dated 16 July 2007 (the section 184 decision) and 11 October 2007 (the section 202 decision). The grounds were settled by counsel and raised three points. First, that Southwark’s decision was irrational and disproportionate. This was said to be because at no stage was a thorough review of his case undertaken and the review officer did no more than review the file of the previous case worker. The challenge was to the finding that the applicant was intentionally homeless. The second ground of appeal was that Southwark had failed to give proper consideration to the applicant’s mental and physical health, in particular his difficulties of understanding and lack of awareness of his situation. It was asserted that he was clearly a vulnerable person, although Southwark has not questioned that. The third ground was that Southwark fettered its own discretion, although the purported elaboration of that ground fell materially short of making it good.[14]The skeleton argument in support of the appeal to the county court was brief and asserted that the applicant’s English was poor; that there was “evidence that he may be suffering from mental health problems”; and that he suffered from pain from the road traffic accident as well as from “distress”. It referred to his refusal of Flat 4 as being unsuitable. It said he did so because:
“He was unable to afford the rent and he had security concerns. He was thus evicted from Grange Road on the basis that his refusal was unreasonable.”
[15]On 6 November 2007 Southwark gave a reasoned decision for refusing to house the applicant pending his section 204 appeal. The papers before me show a purported appellant’s notice against that decision, although they do not disclose when it was issued. Mr Tattersall informs me that that it was issued on 18 January 2008, which was materially out of time. That appeal, when eventually issued -- although there was no extension of time for issuing it -- was against the refusal of the county court to house him pending the disposal of the section 204 appeal. Although that appeal had not by then been lodged, on 21 November 2007 His Honour Judge Welchman made an ex parte order on the applicant’s application requiring Southwark forthwith to provide accommodation to him under section 204A. The judge was presumably exercising the jurisdiction that arises under section 204A(4).[16]The section 204 appeal came before Judge Simpson on 28 January 2008. It is obscure from the papers whether the section 204A appeal was also before the judge. The judge’s judgment dealt only with the section 204 appeal and makes no suggestion that the 204A appeal was also argued before him, which I infer -- with a considerable degree of confidence -- was not. The judge described the appeal as entirely without merit. The only question for Southwark, both on the section 184 decision and the section 202 review had been whether the applicant was intentionally homeless. He had been offered Flat 4 and rejected it as too expensive and because he did not like the area. The judge rightly reminded himself that the challenge to Southwark’s decisions could only be on judicial review grounds, so that the scope for judicial intervention was limited. The decision was primarily one for Southwark. The judge referred to the grounds of appeal and was rightly critical of them as not disclosing grounds of challenge on judicial review grounds, and I will not repeat what he said about that.[17]Judge Simpson then focused on the review officer’s letter, which showed that she had taken account of all that was known to her. Paragraph 21 of her letter (the paragraphs were not numbered in the original letter, but have for convenience been subsequently numbered in manuscript) showed that she was aware of the applicant’s medical difficulties. She had also found that she was satisfied that he knew the relevant facts and that his medical problems did not prevent him from understanding the consequences of his actions. It is apparent that Southwark did not consider that further inquiries needed to be made into the applicant’s circumstances and the judge, correctly in my view, said he could only intervene in its decision in that respect if satisfied that no reasonable authority would have come to the conclusion it did without making further inquiries. The judge’s view, having explained the basis of the appeal, was that the case was simple. The applicant was offered Flat 4. He rejected it without any proper reason being advanced and did not even view it. It was a deliberate act, whereby he made himself homeless. The judge rejected the proposition that inadequate regard had been given by Southwark to the applicant’s mental state.[18]The grounds of appeal to this court against that decision appear to have been prepared by the applicant himself and are to the effect that he was abroad at the time of the hearing, that his solicitor had been asked to seek an adjournment of it until his return but had failed to do so, resulting in an infringement of his human rights. He says he had been medically advised not to bid for bedsits or studio flats. He says that Southwark did not consider his medical condition.[19]There is, in my view, nothing in those points. He was represented by counsel at the hearing and I presume also by solicitors -- although that, I think, is not apparent, and it may be that the solicitors were not present -- but his presence was not required in order for him to receive a fair hearing. He was not required to be there for the purpose of giving evidence. The review officer found that he was never told that what was being offered was a bedsit or a studio flat and, as the judge explained in his judgment, his medical condition was considered by Southwark.[20]The point made by Mr Tattersall on this application is that before Judge Simpson there was also a full skeleton argument in support of the section 204A appeal, raising a string of points that the judge did not consider. Mr Tattersall may well be right, and I think he probably is right, that such a skeleton argument was before the judge. But the odd thing about that is that the skeleton argument was the work of Ms Fagborun Bennett, who was counsel for the applicant before the judge. There is no clue in the transcript of judge’s judgment and of the post-judgment discussion that she at any point sought to advance the points set out in that skeleton argument, and I infer she did not. The judge’s judgment could not have been in the form it was had these points been made. If, as to which I am entirely unconvinced, there was any mistake on the judge’s part in that respect, counsel could have pointed it out following the delivery of his judgment and could have asked him to consider the various points set out in the section 204A skeleton insofar as relevant to the 204 appeal. She did not, however, do so. During the post-judgment discussion the judge also discharged Judge Welchman’s order, a discharge which inevitably followed from his decision on the section 204 appeal.[21]The position this morning is, therefore, that Mr Tattersall is complaining that the judge did not have regard to the other skeleton argument and he asserts that, had he done so, he would have allowed the applicant’s appeal. That skeleton argument raised several points. The thrust of them was:(i) that the review officer should have identified a list of alleged irregularities in the original section 184 decision, notified the applicant that she was still minded to make an adverse decision and given him an opportunity to make further representations under paragraph 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999; (ii) that Southwark failed to give sufficient reasons for its decision; (iii) that it failed to make sufficient enquiries; and (iv) that it failed to consider whether the section 191(2) defence as to good faith was made out.[22]Mr Tattersall’s submission, as expressed in his own skeleton argument, is that if the judge had considered these points, “he would have found in fact and in law that the appellant was not intentionally homeless”. I observe that it was not the judge’s function to make any findings of fact. Mr Tattersall asks for permission to be given so that this court can now consider all these further points, none of which was argued before or considered by the judge. No amended grounds of appeal have been prepared. I am afraid that I am not prepared to give permission for an appeal to this court on that basis. The proposed appeal is a second appeal. Such an appeal will only be permitted under CPR Part 52.13 if(a) the appeal raises an important point of principle or practice or(b) there is some other compelling reason for the Court of Appeal to hear it. There can in my judgment be no compelling reason for this court to hear an appeal based on a string of new points which could have been deployed before the judge on the first appeal but for unexplained reasons were not. Nor in my judgment do the various points raise any question of practice or principle. They are fact-sensitive to the particular case and do not raise any issue of the nature embraced by the first limb of Part 52.13.[23]Mr Tattersall also wishes to argue that the judge “failed to consider whether the appellant had acted in good faith in refusing Flat 4 … along with the other matters before him as to the vulnerable state of the Appellant”. The first observation I would make on that is that no point in relation to the applicant’s good faith was raised in the grounds of appeal before the judge. The second point is that both the section 184 decision letter and the section 202 decision letter expressly considered the application of section 191(2) to the case and found on the facts that the applicant had deliberately refused the offer of accommodation. The third point I would make is that the judge in terms accepted that Southwark had given proper consideration to the applicant’s mental state and in terms also recorded that, as Southwark had found, the applicant’s rejection of the offer was a deliberate act. Any appeal to this court on that ground would not raise any question of practice or principle; it would at most involve an illegitimate inquiry into a matter of primary fact-finding that Southwark had made.[24]In my judgment the applicant’s proposed appeal does not come close to crossing the Part 52.13 threshold. I agree with Sir John Chadwick that the judge was entitled to regard the appeal as without merit and the quality of the appeal is not helped by the fact that it was issued out of time.[25]I refuse this renewed application for permission.

Order

Application refused