“Our Client has made it clear that she was suffering from a mental breakdown, severe depression and anxiety which affected her ability and made it difficult for her to pay the rent arrears. It is evident from various excerpts, some of the medical evidence in her housing file, that our Client had great difficulty in coping with her mental health conditions during the time around 2015. It is noted that our Client could not cope with managing her welfare issues, mental health difficulties and needed support in making rent payments. Given that our Client had lost her employment due to her mental health conditions during 2015, this is indicative and evidences the fact that she was unable to pay her rent due to the aberration of her severe mental health difficulties. Our Client asserts that no such support was provided to her. It is clear that our Client was considered incapable of paying the rent and given no support to do so. As such this cannot be a deliberate act.”
“Our Client’s mental health conditions had a debilitating effect on her ability to engage with other people, including the Local Authority, and which make her incapable of managing her affairs or developing alternative ways to deal with difficult situations…. Evidently, for an individual not suffering with our Client’s mental health conditions, opening mail or the front door or picking up the telephone to make important phone calls are tasks that may be done with little difficulty. However, in our Client’s case she was extremely frightened, stressed, depressed of doing any of those tasks, which is attributable to her mental health conditions.”
“You are considered to be intentionally homeless because you failed to make payment of rent, or take other action such as claim for benefits, to ensure that the cost of your housing was paid for. This led to the cessation of occupation of your home, at 21 Holliers Way … when you were evicted for rent arrears.”
“A generous reading is that it was relevant to the extent that it confirmed [Ms Ivory has] a history of drug use, back pain, anxiety, depression, and that low mood was noted from 1989 but nothing more and nothing in the context of an explanation as to why [she was] unable [to] pay [her] rent. It is held up as evidence that [she was] not in a position to manage [her] affairs when it is nothing of the sort.”
“Unfortunately, a doctor writing in a letter ‘her mental breakdown…’ is not in itself proof of a mental breakdown, and when I have repeatedly asked for evidence of such, none has been provided. I am not required to simply accept that [Ms Ivory’s] rent arrears were solely as a result of [her] experiencing a mental breakdown on [the] basis of this letter alone.”
“I have also noted that there is no mention of the issues that are now being presented. I would have expected some reference to the defence now being put forward that you were unable to manage your affairs, although I accept that absence of such a note is not in itself evidence that it wasn’t put forward.”
“55. The review procedure is a procedure that enables an applicant to raise relevant issues and challenge decisions that have been made. In this instance there were minded to decisions as well as the original decision. The Appellant and her solicitors have had frequent and multiple opportunities to argue that the deliberate act in this case arose because of aberrations related to illicit substance abuse. They have never suggested that that is the case. To me that is highly relevant in considering whether it was a factor that the Respondent should have addressed. 56. The reviewing officer is considering those factors that are relevant to his decision. The absence of any argument from the Appellant that she was, in fact, suffering from an aberration due to drug use is highly relevant and, in my view, it undermines the argument of the Appellant. In any event the evidence, in my assessment, comes nowhere near to what would be necessary to suggest to the reviewing officer that he was bound to consider whether there was a temporary aberration due to assessed substance use.”
“1. Our Client is still suffering from her disabilities which affects her ability to work and carry day to day activities, which makes the decision irrational because the Council refused to accept that our Client’s conditions had a substantial and long-term adverse effect at the time of the decision. 2. Our Client has new substantial medical evidence, which was not available at the time of the previous application which demonstrates that she is not intentionally homeless, as assessed by Dr Ewa Okon-Rocha in April 2023 …. 3. Our Client’s medical conditions have deteriorated and worsened since the time of the previous application.”
“2.1. It is my view that Ms. Ivory currently presents with active symptoms of depression, panic disorder, and agoraphobia. She has opiates addiction and is currently stable on methadone maintenance. 2.2. On the balance of probabilities, Ms. Ivory suffered from severe depressive disorder and panic disorder in late [2015] and 2016. 2.3. At present, the prognosis of Ms. Ivory achieving full remission remains guarded and depends severely on her social situation and her having ongoing access to secondary psychiatric care. 2.4. It is my view that in late year of 2015 and in 2016, on the balance of probabilities, Ms. Ivory did not have the capacity to keep her tenancy on account of her mental disorders. 2.5. I believe, at present, Ms. Ivory has the capacity to keep her tenancy with additional support put in place. 2.6. Ms. Ivory struggles to carry out her day-to-day activities due to her compromised mental state. 2.7. Undoubtedly, both physical and mental health would deteriorate in the event of Ms. Ivory becoming street homeless. 2.8. I am of the opinion that Ms. Ivory fulfils the criteria of disability within the meaning of theEquality Act 2010 .”
“At first, her anxiety escalated and she developed panic attacks around 10 years ago. Ms. Ivory says that at some point in 2015, she could not cope with anything and her life became a burden. Her mood was low. She kept self-harming; she would often bang her head against a wall. She found it difficult to motivate herself to get out of bed, look after herself and the household. She lacked energy and felt physically and mentally drained. She stopped eating properly. Her concentration and processing speed were slow. She said that she was not able to deal with any legal matter and struggled to ‘put two sentences together’, not to mention to prepare her own defence. She felt hopeless and worthless. Her panic attacks became more frequent. Her GP initiated an antidepressant medication, namely mirtazapine, which she is still taking today. Her mental state did not improve the following year, 2016, and deteriorated further.”
“The symptoms of depression were described as much more severe in late 2015 and in 2016 whereupon Ms. Ivory’s mental state deteriorated to the point she was sent home from work. Her GP stated that at that time ‘She could not physically get out of bed or carry out any minor activities.’ Ms. Ivory said she was not able to ‘put two sentences together’. She struggled cognitively and had difficulty processing any given information. In contrast, now, Ms. Ivory reports feeling a bit better as compared to the time around 2015/2016, mainly, thanks to having a temporary shelter.”
“Judgements are made on Ms Ivory’s ability to manage a tenancy, however it is not clear what has been taken into account when making such statements, and other evidence (which may or may not have been presented to Dr Ewa Okon-Rocha) is for the most part not referenced. I provide my questions below: Has Ms Ivory been examined in person? The document states that Ms Ivory was interviewed remotely, however the solicitor has stated in an email on5 September 2023 (attached) that Dr Ewa Okon-Rocha examined the client in person. If so, when and where did the examination occur? The statement is made at 2.2; ‘On the balance of probabilities, Ms. Ivory suffered from severe depressive disorder and panic disorder in late 2915 [sic] and 2016’. On what basis was this statement made? If additional evidence other than Ms Ivory’s own statement was taken into account to make this finding, please advise what this evidence is. The statement is made at 2.4; ‘It is my view that in late year of 2015 and in 2016, on the balance of probabilities, Ms. Ivory did not have the capacity to keep her tenancy on account of her mental disorders’. On what basis was this statement made? If additional evidence other than Ms Ivory’s own statement was taken into account to make this finding, please advise what this evidence is. Reference is made to a court hearing in July 2016; and at 9.4.1 it is stated ‘I understand that during the court hearing of6 July 2016 , the Judge commented that Ms. Ivory presented as “chaotic, depressed, and bewildered the situation had got out of control. She was behaving erratically’. How was this provided to Dr Okon-Rocha? Were the relevant documents provided, or was this information provided anecdotally by Ms Ivory or other parties? It is not clear how Dr Okon-Rocha is able to make a clinical determination about an individual’s ability to manage a tenancy 7-8 years ago. Any information which will help to understand the findings made would be appreciated.”
“The expert was publicly funded to examine the client and produce the report provided to you. If you wish for Dr Ewa Okon-Rocha to answer your questions, you will need to instruct the expert again and pay the costs for their extra work.”
“There is nothing of substance provided in the report other than an opinion expressed by someone who after speaking to you believes your version of events. This is an opinion given 8 years after the fact. They did not meet you at the time, did not have any information informing them that was not already considered, and was not provided with any of the opposing views that had formed the previous decision. … There is no evidence at all supporting the statement that you had a mental breakdown and that this was the cause of your eviction. I have found that the reason that there is no evidence is that it did not happen. I have considered the information in your medical file, and it contains no evidence of a mental breakdown. I have asked the report author to clarify the basis for their findings, but they have declined to do so. When asked by your representatives to assist with obtaining further information from the report author, they declined to do so. When asked why a report was commissioned in March/April 2023 but not presented as part of the appeal process in the months leading up to August 2023, no response was given. Having considered everything provided, I am not satisfied there are any new facts, but a repeat of the submissions made during the review period, only this time from a different person. I have addressed those submissions in the review process, there is nothing new here.”
“11. In this case, I accept the arguments of counsel for the defendant, Mr Calzavara, that when you in fact carry out a close examination of the original decision and the fresh application, the council was provided with extensive arguments about the claimant’s mental health and was presented with medical evidence from the GP. The intervening fact was not an independent fact, it was just simply the provision of a new expert report repeating the same points. 12. I conclude that the irrationality threshold is not met because the requirements set down by the House of Lords in [Rikha Begum v Tower Hamlets London Borough Council] are not satisfied; there is no new development - a party cannot simply rely on the provision of a new expert report restating the same evidence previously advanced to create a rolling basis for a fresh application.”
“A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.”
“Generally, an act or omission should not be considered deliberate where, for example: … (b) the housing authority has reason to believe the applicant is incapable of managing their affairs, for example, by reason of age, mental illness or disability; (c) the act or omission was the result of limited mental capacity; or a temporary aberration or aberrations caused by mental illness, frailty, or an assessed substance misuse problem ….”
“When a local authority, having discharged their statutory duties in relation to one application for accommodation, then receive a second application from the same applicant, are they bound in all circumstances to go through the whole statutory inquiry procedure and provide interim accommodation or is there a ‘threshold test’ which the second application must satisfy if it is to be treated as an application under the Act? So, in the present case, Harrow having discharged their statutory duty in relation to Mrs. Fahia’s application in 1994, could they decide as they purported to do that there was no fresh application before them in 1995 thereby avoiding the necessity to go through the full statutory inquiries required by section 62 and to provide interim accommodation under section 63?”
“I have sympathy with Harrow’s case on this point but I am unable to extract from the statutory language any sufficient justification for the suggested short cut. Under section 62 the statutory duty to make inquiries arises if (a) a person applies for accommodation and (b) ‘the authority have reason to believe that he may be homeless or threatened with homelessness.’ It is established that requirement (a) is not satisfied if an application purports to be made by someone who lacks the capacity to do so: Reg. v. Tower Hamlets London Borough Council, Ex parte Ferdous Begum [1993] A.C. 509. Moreover when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye v. Oswestry Borough Council, The Times,29 July 1980 . But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs. Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not be treated as identical with the earlier 1994 application. She was relying on her eviction from the guest house which, for one year, she had been occupying as the direct licensee of the guest house proprietor, paying the rent for that accommodation. She was reimbursed the amount of the rent by way of housing benefit but the fact was that she had occupied premises as licensee for a year. It is impossible to say that there has been no relevant change in circumstances at all. In the circumstances, I agree with the judge and the Court of Appeal that there was no short cut available to Harrow by way of so-called ‘non-statutory’ inquiries. It may well be that legislation is required to lay down a streamline procedure for processing second or later applications from the same applicant. But the wording of section 62 is too clear to allow the development of such a procedure by judicial decision.”
“The good sense of taking the circumstances as they were known to be when the earlier application was disposed of, as opposed to the circumstances as revealed in the earlier application document, is self-evident. Further, it seems to me that it is not a misuse of language to judge the circumstances or ‘facts [of an] application’ by reference to the actual facts when the earlier application concerned was determined (or reviewed), rather than the facts as they were alleged by the applicant on the date he or she made that application.”
“59. First, it seems to me that it is for an applicant to identify, in the subsequent application, the facts which are said to render that application different from the earlier application. If the authority are to assess the question of whether the circumstances of the two applications are ‘exactly the same’ by reference to the facts revealed by the document by which the subsequent one is made, then that, I think, must be the logical, indeed the inevitable, consequence. Accordingly, if no new facts are revealed in that document (or any document accompanying it or referred to in it), the authority may, indeed at least normally should, reject it as incompetent. 60. Secondly, if the subsequent application document purports to reveal new facts which are, to the authority’s knowledge, and without further investigation, not new, fanciful, or trivial then the same conclusion applies. The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application. It is not appropriate to expand upon what may constitute or are fanciful or trivial alleged new facts, because that must inevitably turn on the particular circumstances of the particular case. 61. Thirdly, I turn to a case where the subsequent application document appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant’s purposes on investigation. In such a case, I consider that the authority must treat the subsequent application as a valid application, because that is what it is, in light of the reasoning of the House of Lords in Fahia[1998] 1 WLR 1396 . In particular, I do not consider that in such a case the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would, in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be comparatively short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act .”
“In light of the reasoning in Fahia it seems to me that unless the new fact is patently fanciful or trivial on the face of the application, for example as my Lords suggested in discussion with counsel, the application being made on a different day of the week or by a different method, then the [local housing authority] have no choice but to accept the application and investigate it.”
“It will be seen that the only case in which a housing authority can refuse to entertain what purports to be a subsequent application is where there is ‘no application’. That would be the position where it is based on ‘exactly the same facts’ as the previous application or is ‘identical with’ it. Lord Browne-Wilkinson’s reference to ‘relevant change in circumstances’ must be read in that light; and in view of his rejection of Harrow’s argument cannot be read as meaning a change of circumstances which ‘might’ or ‘could’ lead to a different outcome.”
“It is important to read these words in context. What the authority is doing is looking at the facts alleged by the subsequent application. It is only in that context that it is possible to make sense of the word ‘fanciful’. If, for example, Mr Minott had alleged that his home in Cambridge had been destroyed by a meteorite, a local authority would be entitled to regard that as a fanciful allegation. Whether a fact is or is not trivial is perhaps open to debate; but a fact cannot be regarded as trivial merely because it could not affect the outcome of the second application.”
“when the housing authority receives what purports to be a subsequent application, their inquiry falls into two quite separate stages: (i) Stage 1: is it an application at all? The answer will only be ‘no’ if it is based on precisely the same facts as an earlier application (disregarding fanciful allegations and trivial facts). (ii) Stage 2: if it is an application, is it well founded? That will require the housing authority to carry out the inquiries required by section 184. If an application passes stage 1, there is no available short cut.”
“The dispositive reasoning of Macur and Lewison LJJ is as I understand it the same, and I agree with it. Stripping it to its essentials: (1) Cambridge was only entitled to reject Mr Minott’s application if it was identical to his previous application in the sense established by the decision of the House of Lords in R v Harrow London Borough Council, Ex p Fahia[1988] 1 WLR 1396 and further explained by Neuberger LJ in Rikha Begum v Tower Hamlets London Borough Council[2005] 1 WLR 2103 . (2) That condition was not satisfied in the present case because the new application relied on what was plainly a ‘new fact’ which was neither fanciful nor trivial, namely that by the date that it was made Mr Minott had been resident in Cambridge for the six-month period referred to at paragraph 10.7 of the Homelessness Code of Guidance for Local Authorities (February 2018). (3) It was not open to Cambridge to rely on the argument that in the particular circumstances of his case (including the unlawfulness of his continued occupation of his interim accommodation) Mr Minott’s six-months’ residence did not establish that he had a local connection. That is an argument that the change was not ‘material’, which is precisely what was held in Fahia to be inadmissible. The argument could only be run at the next stage.”
“The only other observation that I would make is that, although I agree that a decision by a local authority that a subsequent application is not a fresh application is only reviewable on public law grounds (as Macur LJ says at para 27 of her judgment), it seems to me that typically the issue will be one to which only one answer is possible.”
“In distinguishing, as the defendant does, between the facts behind an application rather than the evidence adduced in support of those facts, it seems to me that this must refer to the facts in the mind of the decision maker at the time of a decision and not merely facts that are asserted but not accepted. Any other approach would be irrational. A person who is presented with evidence but rejects it cannot reasonably say ‘I knew that all along’ when later presented with fresh evidence of the fact alleged.”
“51. I do not accept that submission, for two related reasons. First, as noted above, the whole basis of the Review Decision was that the claimant had failed to produce any evidence to support her claim to be suffering from mental health problems, and the defendant concluded that the claimant had ‘no medical issues’. The Review Letter did not say that the defendant understood the claimant to be suffering from low level mental health problems but that these were insufficient for her to have a priority need within s.189(1)(c) of the Act . 52. Second, the 9 October Decision itself neither stated nor implied that the defendant had, in reaching the earlier Review Decision, taken into account that the claimant had mental health problems (low level or otherwise). It is important to recall that, as Neuberger LJ’s judgment in Rikha Begum explains at [60], what is relevant is whether the facts were ‘known to, and taken into account by’ the authority on the earlier application. There is nothing in either the Review Decision, or the 9 October Decision, to support that conclusion.”
“the failure to consider that issue is highly material to the question of whether or not the new application is based on identical facts to those which were the subject of the review decision of28 August 1980 . The significance of facts depends on the purpose for which they are considered. True it is that the material before the review officer included Dr Ketteley’s report of6 February 2018 and its statement that the incidents in Middlesbrough ‘… reminded her so greatly of her original trauma in Congo that she was unable to stay in her flat.’ However the review officer did not consider that evidence as it related to the issue of ‘subjective reasonableness’. It formed no part of the reasoning and decision; and accordingly should be disregarded when the comparison is made between the original and the ‘new’ application.”
“I have asked the report author to clarify the basis for their findings, but they have declined to do so. When asked by your representatives to assist with obtaining further information from the report author, they declined to do so.”
‘… when an applicant has been given temporary accommodation under section 63 and is then found to be intentionally homeless, he cannot then make a further application based on exactly the same facts as his earlier application: see Delahaye v Oswestry Borough Council, The Times,29 July 1980 . But those are very special cases when it is possible to say that there is no application before the local authority and therefore the mandatory duty imposed by section 62 has not arisen. But in the present case there is no doubt that when Mrs Fahia made her further application for accommodation she was threatened with homelessness. Moreover in my judgment her application could not be treated as identical with the Elliott 1994 application. … It is impossible to say that there has been no relevant change in circumstances at all.’
‘46. Accordingly, in order to check whether a subsequent purported application is based on “exactly the same facts” as an earlier application, the authority must compare the circumstances as they were at the time when the earlier application was disposed of (i.e. when it was decided when the decision was reviewed) with those revealed in the document by which the subsequent application is made (and any other associated documentation).’
‘59. First, it seems to me that it is for an applicant to identify, in the subsequent application, the facts which are said to render that application different from the earlier application. If the authority are to assess the question of whether the circumstances of the two applications are "exactly the same" by reference to the facts revealed by the document by which the subsequent one is made, then that, I think, must be the logical, indeed the inevitable, consequence. Accordingly, if no new facts are revealed in that document (or any document accompanying it or referred to in it), the authority may, indeed, at least normally, should, reject it as incompetent. 60. Secondly, if the subsequent application document purports to reveal new facts, which are, to the authority's knowledge, and without further investigation, not new, fanciful, or trivial, then the same conclusion applies. The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application. It is not appropriate to expand upon what may constitute or are fanciful or trivial alleged new facts, because that must inevitably turn on the particular circumstances of the particular case. 61. Thirdly, I turn to a case where the subsequent application document appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant's purposes on investigation. In such a case, I consider that the authority must treat the subsequent application as a valid application, because that is what it is, in light of the reasoning of the House of Lords in Fahia. In particular, I do not consider that, in such a case, the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would, in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be comparatively short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act.’
‘49. What the defendant cannot do, in my judgement, is to go back and compare the facts which were alleged (but not accepted) in the previous application with those put forward in the new application. To do so is irrational for the reasons I have spelt out above. … 51. I can see that there may be an objection to the drip feeding of evidence said to support the same facts originally alleged. However, that was not the case here. There was a new development in the form of events of 24 February and those events resulted in new evidence from those responsible for the claimant’s primary health care. That evidence meant that the claimed new facts could be realistically asserted. … 52. In my judgement, it cannot be said that the events of 24 February and the accounts from the GP and [mental health nurse] were simply new evidence of an existing situation nor were they matters that could be described as “trivial or fanciful”. On any reasonable interpretation, when tested against the facts as the defendant had found them to be at the time of the review, the new application could not be considered by any reasonable authority to be based on “exactly the same” facts. … 54. I therefore come to the conclusion that it was irrational or unreasonable in the Wednesbury sense for the defendant to take the view that the circumstances when the claimant made application on1 March 2016 were exactly the same as those which led to the earlier decision that she was not in priority need and so to reject the new application.’
‘43. Thus on the face of the 9 October Decision, it is in my judgment very difficult to see how the defendant could rationally conclude that the new medical evidence disclosed no new facts, or could regard such facts as trivial or fanciful. On its face, the evidence showed that Dr Okoye, a Speciality Doctor in Psychiatry, considered the claimant to be suffering from “intense emotional liability”; and that she had “some traits of an emotionally unstable personality disorder”. … Likewise Dr Watson, an Adult Community Mental Health Service doctor, considered the claimant to be experiencing an adjustment disorder following her eviction, and that she presented with “traits of an emotionally unstable personality disorder”.’
‘25. Where the fresh application appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant's purposes on investigation, the LHA must treat the subsequent application as a valid application. The LHA are not entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid: see para. 61. 26. The comparison was to be made between the facts as had been determined in the previous application or review, and the asserted facts of the new application and any other associated documentation: see paragraph 46.’
‘72. That test is harder to satisfy than a test of “material change of circumstances”: [41]. The comparison is between the facts found by the housing authority on the first application and the facts asserted in the second application: [44] and [45].’
‘76. What, however, is clear to my mind is that when the housing authority receives what purports to be a subsequent application, their inquiry falls into two quite separate stages: i) Stage 1: it is an application at all? The answer will only be “no” if it is based on precisely the same facts as an earlier application (disregarding fanciful allegations and trivial facts); ii) Stage 2: if it is an application, is it well-founded? That will require the housing authority to carry out the inquiries required by section 184. If an application passes stage 1, there is no available short cut.’
‘91. The answer to this question depends on comparing the facts as found by Cambridge in the original review decision, with the facts alleged in the fresh application. The legal consequences of the facts alleged in the fresh application are matters for stage 2 rather than stage 1.’
‘99(1) Cambridge was only entitled to reject Mr Minott’s application if it was identical to his previous application in the sense established by the decision of the House of Lords in Fahia and further explained by Neuberger LJ in Rikha Begum’. (2) That condition was not satisfied in the present case because the new application relied on what was plainly a “new fact” which was neither fanciful nor trivial, namely that by the date that it was made Mr Minott had been resident in Cambridge for the six-month period referred to at para. 10.7 of the Code. …’