Hemley v Croydon Council [2015] EWCA Civ 1519

Case No B5/2015/0520[2015] EWCA Civ 1519
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HER HONOUR JUDGE FABER)
Venue Royal Courts of JusticeDate Thursday, 19th November 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE KITCHIN
MS FAHARRI ROSE HEMLEY
Claimant/Respondent
-v-
CROYDON COUNCIL
Defendant/Appellant
Computer-Aided Transcript of the Stenograph notes of
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Mr D Lintott (instructed by Wragge Lawrence Graham) appeared on behalf of the Applicant
The Respondent did not attend and was unrepresented
J U D G M E N T
Between
HemleyAppellantCroydon CouncilRespondent

LORD JUSTICE KITCHIN:

[1]This is an application for permission to appeal against the judgment of Her Honour Judge Faber given on 15 January 2015 and her consequential order quashing the decision of the appellant dated 29 July 2014 made pursuant to its powers under section 202 of the Housing Act 1996. Permission to appeal was refused on the papers by Floyd LJ by order dated 5 May 2015. The appellant has requested that this decision be reconsidered at an oral hearing, which has come on before me today. The appellant has been represented at this hearing by Mr David Lintott, as it was by the judge. This being an application for permission to bring a second appeal, permission will not be given unless the court considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the court to hear it.[2]The background may, for the purposes of this application, be summarised as follows. The respondent is a single young woman with mental health and mobility problems. She suffers from chronic pain and walks with a stick. In July 2013 the respondent approached the appellant for assistance and provided to the appellant a good deal of information concerning her condition. This led the appellant's housing officer to send a request to its medical advisers, Now Medical, and on 16 July 2013 a medical advice was produced. On 18 July 2013 the housing officer sent a request for further information from the respondent's general practitioner, and this was duly provided. The housing officer also made a further inquiry of the respondent's medical advisers and, upon receipt of the response to this, in November 2013 the appellant made its decision under section 184 of the Act that the respondent did not have a priority need.[3]On 17 December 2013 the respondent requested a review of this decision. Further representations were invited and these were made on 28 February 2014. It was said on behalf of the respondent that she was not able to mobilise long distances and used a mobility car; that her condition required the use of a crutch and that she could walk only slowly; that she was unable to do things alone and found it hard to carry out day-to-day work and suffered fatigue and spasms in her back; and that she was helped in her daily activities by her mother, her brother and her friends. These representations also included a letter from the respondent's GP, Dr Contractor, dated 23 January 2014, which explained that her pain was of "quite a chronic nature" and that she was not able to mobilise long distances.[4]The reviewer also sent questionnaires to the respondent's rheumatologist, Dr Myles Lewis, and to the respondent's GP's surgery. On 4 March 2014 Dr Lewis responded stating that the respondent had a diagnosis of chronic pain syndrome; that a previous diagnosis of connective tissue disease had been withdrawn; that a number of previous treatments were ineffective; that generally her prognosis was good and that there was no medical reason why her condition would not improve over time; and that she could walk independently with or without aids. The response also noted that the respondent walked with a stick but indicated that there was no obvious medical reason for this.[5]On 7 April 2014 the respondent's GP, Dr Contractor, responded that her diagnosis was chronic pain syndrome; that her prognosis depended upon her response to treatment; that her mental state was "anxiety/depression"; and that she could walk independently with or without aids.[6]All of these materials were sent by the appellant to its medical advisers, Now Medical, and following the receipt of further advice, a "minded to" letter was sent to the respondent indicating that the reviewing officer was minded to take a decision that the respondent was not in priority need.[7]Yet further representations were made, but on 29 July 2014 a review decision was sent to the respondent stating that she was eligible for assistance and was homeless but did not have a priority need and so no duty to re-house was owed.[8]The respondent appealed against this review decision under section 204 of the Act. That appeal came on for hearing before Judge Faber in January 2015. In her concise written judgment, she allowed the appeal on the narrow ground that the reviewing officer made two material findings which were unsupported by the evidence and that it could not be said that, had the reviewing officer approached the matter correctly, he would not have come to a different conclusion.[9]The first of the findings is contained in paragraph 5 of the review decision, where the reviewing officer stated:
"You have been diagnosed with chronic pain syndrome after you reported suffering from pain. You previously had a diagnosis of undifferentiated connective tissue disease but this was withdrawn. Indeed your GP, Dr Contractor, and your Rheumatologist, Dr Lewis, both advised me that there is no medical reason for you to be suffering from pain. For this reason Dr Lewis advised that your prognosis is 'good'."
[10]This, thought Judge Faber, was extremely odd because there was a diagnosis of chronic pain syndrome which had never been withdrawn. Judge Faber then proceeded to set out the details of the various medical reports with which the reviewing officer had been supplied which confirmed that diagnosis. Judge Faber continued that this erroneous matter of fact was taken into account and that this amounted to an error of law. Further, the issue was not a knit-picking one and it could not be said that, had this erroneous finding not been taken into account, the result would have been the same.[11]The reviewing officer went on in paragraph 6 of the letter to say that:
"According to the information from both Dr Contractor and Dr Lewis it is evident that your condition has little or no impact on your ability to fend and I see no reason to conclude that you will necessarily suffer injury or detriment greater than that an ordinary street homeless person. I have concluded this from the fact that they have advised me that although you walk with a stick you can walk with no restrictions."
[12]Judge Faber held that here again the reviewing officer reached a conclusion which had no proper basis in the evidence because neither Dr Contractor nor Dr Lewis said that the respondent could walk with no restrictions. To the contrary, in the letter of 23rd January 2014, to which I have referred, Dr Contractor explained that the respondent was not able to mobilise for long distances. This was, so Judge Faber thought, another point which could not be characterised as knit-picking and amounted to a significant error of fact which amounted to another error of law.[13]Upon this application, Mr Lintott submits that the reviewing officer focused extensively in the decision upon the chronic pain syndrome condition from which the respondent suffers. It is clear, he continues, that the reviewing officer did not leave the diagnosis of chronic pain syndrome out of account and that, when the letter is considered benevolently, it is plain that the reviewing officer properly considered and took into account all of the effects of that syndrome upon the respondent. Further, so far as the need to walk with a stick was concerned, the reviewing officer again had proper regard to this and simply related that, as he had been advised, although the respondent walked with a stick, there was no obvious medical reason for this and it was not necessary. It follows, continues Mr Lintott, that the reviewing officer carried out the exercise entirely properly, took into account all relevant matters and came to a decision which was properly open to him. The criticisms advanced of the decision are truly of a knit-picking nature and that requiring the matter to be reconsidered afresh would be an entirely futile exercise.[14]I do not believe that this case raises an important point of principle or practice. However, Mr Lintott has persuaded me that there is a compelling reason for the appeal to be heard because it is strongly arguable that Judge Faber has reached a decision which is wrong in law, in that she has substituted her own view for that of the reviewing officer and has failed properly to consider whether the view taken by the reviewing officer was a reasonable one. Moreover, it seems to me to be strongly arguable that Judge Faber has taken a rather technical view of the language used by the reviewing officer and has failed properly to adopt a benevolent approach to the interpretation of the decision as a whole, and that, when considered it as a whole, it is unrealistic to say that the reviewing officer did not have regard to the diagnosis of chronic pain syndrome. Furthermore, it seems to me to be strongly arguable that the reviewing officer was, in paragraph 5, simply saying that there was no medical reason other than chronic pain syndrome for the respondent to be suffering from pain. Similarly, it seems to me to be strongly arguable that Judge Faber's criticism of the conclusion reached by the reviewing officer in paragraph 6 is also of a knit-picking nature. I also recognise that the decision in this case is a matter of great concern to the appellant, for Mr Lintott submits that many such cases are likely to come before the same court. All of these points do, in my judgment, justify a second appeal. Accordingly, I grant the permission sought.