Ryan v City of Westminster [2015] EWCA Civ 1448

Case No B5/2014/3767[2015] EWCA Civ 1448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Venue Royal Courts of JusticeDate Tuesday, 17 November 2015
Strand
London, WC2A 2LL
Before
LORD JUSTICE FLOYD
Between
RYANAppellantCITY OF WESTMINSTERRespondent
DAR Transcript of WordWave International Ltd trading as DTI8 th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 704 1424Web: www.DTIGlobal.com Email: TTP@dtiglobal.eu(Official Shorthand Writers to the Court)
Ms Victoria Osler (instructed by Gillian Radford & Co Solicitors) appeared for AppellantMr Ian Peacock (instructed by Kelly Donovan at Westminster Legal Services) appeared for Respondent
Judgment
[1]This is a renewed application for permission to appeal from the decision of Ms Recorder McAllister dated 30 October 2014 whereby she dismissed an appeal from a decision of the respondent authority, Westminster City Council, declaring that the applicant, Mr Amir Ryan, was not in priority need of accommodation as a homeless person under Part 7 of the Housing Act 1996.[2]The applicant is 27 years of age and contends that he was at the relevant time a person in priority need because he was vulnerable. He suffers from both mental and physical difficulties, including post-traumatic stress disorder as a result I think of abuse suffered during his childhood and also as a result of finding his late mother dead in her accommodation. He also suffers from an ankle injury which has proved beyond surgical intervention and affects his mobility.[3]The reviewing officer’s decision is contained in a seven-page letter dated 29 April 2014 addressed to Mr Ryan. The officer applied the test current at the time laid down by the Court of Appeal in R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317 which he expressed in various ways. For example, on the second page of his letter he said:
“I am not satisfied that when homeless you would be less able to fend than an ordinary person so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effect.”
[4]On the third page he said:
“Whilst I am sympathetic to your circumstances, I am not satisfied that this renders you vulnerable. This is because in spite of your life experiences you have shown yourself to be a person who is able to fend for yourself as any ordinary person when homeless.”
[5]On the fourth page he said:
“This leads me to conclude that you would be as well able to fend for yourself when homeless as the next person.”
[6]So far as the medical evidence concerning the applicant’s mental state was concerned, the reviewing officer took this into account on the second page of the letter. He said:
“I have considered the information on the file, I am not satisfied that you are vulnerable as a result of your condition. Information available to me shows that you have been prescribed medication to treat your condition, and have been able to liaise with your GP regarding treatment. You are also due to undergo further counselling to help you address your anger management. There is nothing to suggest you would be unable to access your treatment, in the event of street homelessness. I am therefore satisfied that your condition will remain stable as long as treatment is available to you.”
[7]The reviewing officer also considered the evidence about the applicant’s mobility. He noted that the applicant had been able to access treatment for his foot pain and was satisfied he would be able to continue to do so if homeless.[8]There are two grounds of appeal. The first is concerned with the approach of the reviewing officer when faced with conflicting medical evidence. As pointed out in Shala & Anr v Birmingham City Council [2007] EWCA Civ 624, the reviewing officer must ensure that, when evaluating medical evidence, he or she is comparing like with like. Hence, if the authority’s medical expert has not seen the applicant, this fact should be taken into account. I have no doubt that the reviewing officer was alert to this problem and dealt with it appropriately. The applicant had expressly submitted to the reviewing officer that they should not prefer the opinion of their own medical advisers over that of his doctors.[9]On page 5 of the decision that submission is recognised. The reviewing officer says, “You have stated that NowMedical have not assessed you or met with you and are not in a position to comment on your health problems”. However, the reviewing officer points out that he is still entitled to have regard to what NowMedical, their own medical advisers, had said about the applicant. There is no reason why the reviewing officer should not have had regard to it notwithstanding the fact that the applicant had not been examined by them. The reviewing officer was well aware that an assessment had been carried out by the applicant’s own medical advisers. That much is recorded on page 2 of the decision. I therefore consider that there is nothing in this ground of appeal.[10]The second ground of appeal is that the reviewing officer failed properly to consider whether the applicant was vulnerable for a special reason. The applicant submits through Ms Victoria Osler who appears on his behalf this morning, relying in particular on a passage in the recent decision of the Supreme Court in Hotak v Southwark LBC (Equality and Human Rights Commission intervening) [2015] 2 WLR 1341, that there are both individual and cumulative factors which may render the applicant vulnerable. Ms Osler relies on the applicant’s numerous criminal convictions, his violent and troubled childhood, his time spent in care and the trauma experienced when he discovered his dead mother.[11]Whilst there is absolutely no doubt that Ms Osler is correct as to the necessity of a detailed examination of these factors, it seems to me that this is what the reviewing officer did. At the bottom of the third page of the decision he says:
“I have considered the cumulative effect of all your circumstances, and even having considered your circumstances as a whole, I am not satisfied that they constitute an unusual degree of gravity to constitute a special reason for which we should consider that you are vulnerable. I have taken into account that in spite of your health problems, you have shown yourself to be a person who is just as able to fend for yourself as any ordinary person. It is clear that you have been able to access and engage with your GP and appropriate support network in order to receive treatment for your health issues.”
[12]I therefore do not consider that there is anything in this ground of appeal.[13]This morning Ms Osler has stressed in particular the review of the law as to vulnerability in the Hotak case which I have cited. She has drawn my attention in particular to paragraph 56 in the judgment of Lord Neuberger of Abbotsbury. That case raised the question of who is the appropriate comparator against which one decides whether the applicant is vulnerable. It had been suggested on the basis of some earlier cases that the comparison was with an ordinary homeless person, an exercise which involved a factual enquiry into the vulnerability of homeless persons generally or perhaps in the particular area of an individual local authority. The Supreme Court has now authoritatively stated that such a comparison is in error and that the correct comparison is with an ordinary person when made homeless.[14]Whilst that particular clarification of the law is of obvious importance in some cases, I do not think it assists Mr Ryan. That is because I do not think the reviewing officer fell into the particular error at which the Supreme Court’s judgment is addressed. I can see no evidence in his decision that he sought to use as a comparator a typical homeless person or such a person within his borough.[15]This is a second appeal and I could only give permission if the case raised an important point of principle or practice or there was some other compelling reason to give permission to appeal. I do not think this case does raise any such question. Moreover, I do not consider that either point raised in the grounds of appeal has a realistic prospect of success. There is therefore no compelling reason why the court should grant permission to appeal and I would dismiss the application.

Order

Application refused