IA, R (on the application of) v City of Westminster Council (Rev 1) [2013] EWHC 1273 (Admin)

[2013] EWHC 1273 (Admin)

Case No CO/4521/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 20 May 2013

Before

HIS HONOUR JUDGE ANTHONY THORNTON QC

Sitting as a deputy judge of the High Court

Between

IAClaimant

City of Westminster CouncilDefendant

Ms Victoria Osler (instructed by Gillian Radford & Co) for Claimant

Mr Ian Peacock (instructed by Head of Legal and Democratic Services, City of Westminster Council) for Defendant

Hearing: 7 May 2013

JUDGMENT

Given the importance and topicality of this decision in the field of Part VII homeless applications, I have certified that this judgment may be cited and referred to in other cases or situations. This direction is made pursuant to paragraph 6.1 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, CA.

Judge Anthony Thornton QC

Introduction

[1]This judgment is concerned with four matters:(1) The claimant’s application to extend an order dated 17 April 2013 that was obtained without notice. The order required that the defendant should secure suitable accommodation for the claimant pending determination of the claimant’s claim seeking judicial review;

(2) The claimant’s application for permission to apply for judicial review of 3 decisions that had been made by the defendant were made under Part VII of the Housing Act 1996 that is concerned with applications to a local authority for assistance in cases of homelessness of vulnerable people in priority need. The decisions were: (a) The defendant’s decision dated 7 March 2013 that the claimant was not in priority need; and (b) The further decisions dated 5 and 12 April 2013 refusing to secure that accommodation was available for the claimant’s occupation pending its review of its decision dated 7 March 2013.

[2]These applications raise a significant issue relating to the operation of the decision-making process of a local housing authority making an inquiry into applications by an homeless person for accommodation and its interim duty to accommodate in cases of apparent priority need and the role of the Administrative Court when an homeless person’s applications for a section 184 decision and for interim accommodation application pending a review are refused on allegedly irrational or unlawful grounds. This difficult area of law and Administrative Court practice is highlighted by the current economic situation and the resulting cutbacks in local authority budgets and housing benefit availability.

Anonymity order

[3]The claimant made the applications in question to the defendant housing authority under Part VII of the Housing Act (“HA”) 1988. His personal circumstances must be considered in detail in this judgment and they are particularly sensitive and distressing for him. There is a likelihood that this judgment will be publicised in view of its topical subject-matter. It is possible, therefore, that publication of the claimant’s name could cause disproportionate interference with his private life. In those circumstances, and without there having been a prior application on his behalf, I am making an anonymity order that provides that he shall be known in these proceedings as IA and that it is prohibited to identify him or to publish his name as being the claimant. This order is made pursuant to RSC 39.2(4) and in conformity to the guidance provided by Lord Rodger in Re Guardian News & Media Ltd

[2010] 2 WLR 325

, UKSC 26, paragraph [28]. This case is colloquially known as the “alphabet soup” case. as to the circumstances in which a court should consider making an anonymity order.

Factual Overview

[4]The claimant is 33. He is an Iranian national who was granted asylum in 2009. He had been imprisoned in Iran for his political activism against the Iranian Government having been imprisoned and subjected to both mental and physical torture in 2005. In 2009 he successfully sought and was granted asylum in the United Kingdom. He settled in the Westbourne Park area of the defendant housing authority area in a small one-bedroom private sector rented flat. It would appear that the claimant is a single man who has always lived alone since he was granted asylum. The brief chronology of his relevant history disclosed by the claim form papers is that the claimant has resided in the defendant’s area for most if not all of his time in the UK. He had been registered with a General Practitioner who had, at some stage prior to July 2010 referred him to a psychiatrist. He then registered with another GP in a Medical Centre in the Maida Vale area in July 2010 whose current prescriptions for his daily medication dated from December 2011 and February 2013. In March 2013, he had recently been referred to his Medical Centre’s in-house counsellor for further help and support but, as is well known, such support is in short supply with a long waiting time and the claimant is still waiting for his first appointment.

[5]The claimant’s relevant tenancy started in December 2010 and the rent was met entirely from local housing allowance (“LHA”) which is the type of housing benefit provided for private sector tenancies. LHA is funded nationally, administered by local authorities and usually paid directly to the tenant recipient of LHA. In about October 2012, the claimant’s landlord informed him that he would seek possession of the flat due to the forthcoming cap on the claimant’s LHA payments, a cap that all LHA payments are now subject to. His rent was being fully met by LHA and the cap would limit what the claimant could receive by way of LHA payments and consequently what he could afford to pay to he landlord. This sum was £250 per week from December 2012 and it equalled the then current rent The cap came into effect in March 2011 but there was a postponement provision for existing tenancies such that for the claimant it would have taken effect in September 2012, 9 months after the anniversary of his tenancy in December 2011. . It would appear that the landlord wished to recover a higher rent for this flat which explained his giving the claimant a notice to quit. A further potentially relevant factor in the landlord’s thinking may have been the forthcoming introduction of a benefits ceiling in 2013 for all benefit recipients which the landlord might have been perceived as being a possible further cap on the payments that the claimant would be receiving and he would thus be receiving in rent.

[6]As a result of the landlord’s intimation that he would have to leave his flat, the claimant visited the defendant’s Housing Options Service office serving his area on 8 November 2012 and inquired about housing assistance for homeless people. The adviser he spoke to informed him that he was unlikely to have a priority need for accommodation secured by the defendant so that the defendant would have no duty to rehouse him. The adviser could not help him further save to provide him with one of the defendant’s information packs that explained the available options for someone in his position.

[7]On 27 February 2013, in anticipation of his imminent homelessness, the claimant went to see his GP who provided him with a brief medical report dated the same day for him to provide to the defendant in support of his homelessness application. This gave a brief description of the depression and panic attacks, insomnia and back and leg pains that he was suffering from and listed his current medication. The report stated that:

“[IA] 33 years old patient who has been registered in my practice since July 2010. He has the following medical problems: Depression and Panic attacks: He suffers from long standing depression, panic attacks and low mood for a number of years now. He has been previously followed up by psychiatrist at his previous GP following being tortured back in Iran in 2005 and is currently being referred to our In-house counsellor for further help and support. He is on regular medication. Insomnia: He suffers from insomnia and lacks concentration which is affecting his daily activities. Back pain: He suffers from chronic lower back pain and has been under the physiologist at his previous GP. Leg pain: He suffers from pain in both legs more so on the left side which is affecting his mobility. He is on the following medication: Co-Codomal Tablets 2 prn 30 tablet 15. 2.2013 Diphenhydramine Hydrochloride Tablets 50 mg od 40 tablet 13.12.2011 Citaloprara Hydrobromide Tablets 40 mg od tablet 25. 2.2013 Due to the above medical condition, [IA] is finding it difficult to cope and will need help and support with his daily needs. His condition has been aggravated and vulnerable due to the fact that he has been issued with an eviction notice from his current accommodation. Thank you for taking his medical condition into careful consideration when dealing with his housing matter.”

He is on the following medication: Co-Codomal Tablets 2 prn 30 tablet 15. 2.2013 Diphenhydramine Hydrochloride Tablets 50 mg od 40 tablet 13.12.2011 Citaloprara Hydrobromide Tablets 40 mg od tablet 25. 2.2013

[8]On 7 March 2013, the claimant visited the defendant’s local office that he had visited previously, taking his GP’s report with him, in order to lodge a claim for homelessness accommodation since his homelessness was then imminent. He had recently received a notice to quit which was to take effect on 4 April 2013. He was immediately given a cursory interview there and then by a Housing Caseworker who took a copy of his report and asked him a number of questions. At the end of this relatively short interview, the caseworker printed off, signed and handed him a written decision dated 7 March 2013 under section 184 of the Housing Act 1996 (“HA”) that she had been typing up during the interview. The claimant contends that the caseworker did not interrupt the interview at any time to speak to anyone else, whether by telephone or by leaving the room.

[9]The caseworker’s decision informed the claimant that he was homeless and eligible for assistance but did not have a priority need. Therefore the defendant had no duty to find him a home and it had decided that it would not exercise its discretion under section 192 of the HA to provide him with a home notwithstanding his situation as being unintentionally homelessness without a priority need. His attention was drawn to the advice he had previously been given in the housing pack about his other housing options and to the availability of one of the defendant’s Housing Options Advisers for advice. He was also advised about his right to ask the defendant for a review of this decision.

[10]The claimant then went to see a solicitor in a local practice specialising in housing law under the Legal Help Scheme who wrote to the defendant on 28 March 2013 requesting a review of the defendant’s decision. The letter indicated that further medical evidence would be obtained and expressed disagreement with the decision that the claimant was not in priority need. The letter listed 10 grounds why it was contended that the decision was erroneous, most of which added to the description of his circumstances that had been referred to in the defendant’s decision letter. The letter also advised the defendant of the claimant’s forthcoming homelessness that would result from the notice to quit he had received that would expire on 4 April 2013 and it asked the defendant to exercise its discretion to provide the claimant with interim accommodation pending its review decision.

[11]The defendant replied to the claimant’s solicitors on 5 April 2013 refusing the claimant’s application for the exercise of discretion to provide him with interim accommodation. It also informed the solicitors that the defendant’s priority need decision had been referred to the defendant’s Reviews Team. The claimant’s solicitors replied with a judicial review pre-action protocol letter dated 12 April 2013 seeking a withdrawal of the decision dated 5 April 2013 and for the claimant to be provided with suitable accommodation pending receipt of the review decision otherwise judicial review would be started. This was replied to on the same day by the defendant’s Housing Options Service Manager who stated that the defendant declined to exercise its discretion and would not provide interim accommodation to the claimant.

[12]The claimant’s solicitors then applied for and was granted an emergency funding certificate dated 16 April 2012 to represent the claimant in an application for judicial review and, on 17 April 2013, they filed a judicial review claim form and an application for interim relief. The basis of this application was that the claimant was homeless and living in a temporary shelter run by Connections in Central London and was seeking a mandatory order requiring the defendant to provide suitable accommodation to him pending the determination of the defendant’s review of its section 188 decision and the hearing of the application for permission. The application was considered on the papers and an interim mandatory injunction was granted by the Immediates judge on a without notice basis. A solicitor in the defendant’s Legal and Democratic Services Department then served on the Administrative Court on 18 April 2013 an application to discharge the interim injunction forthwith. The application was accompanied by a letter seeking the earliest possible hearing as a matter of urgency and in fairness to the defendant. At the hearing of that application on 7 May 2013, it was agreed that the application would be treated as an application by the claimant to extend the injunction until the completion of the review, that the claimant’s application for permission would be heard at the same time and that the claimant’s counsel would open both applications. Following the defendant’s counsel’s reply and a short response from the claimant’s counsel, I reserved judgment and extended the interim injunction until the handing down of the reserved judgment or further order.

Relevant legal framework

[13]Part VII of the Housing Act 1988 sets out housing authorities’ duties in relation to homelessness. These statutory provisions are supplemented by the Homelessness Code of Guidance (2006) issued by the relevant Department. The code provides statutory guidance about how local authority housing and social services departments should carry out their statutory functions in respect of people who are homeless or at risk of homelessness. The code is issued by the Secretaries of State under section 182 of the Housing Act1996, and local authorities are required to have regard to the Code whenever they exercise a power or a duty under the HA. The Code was drafted to take account of then-current relevant court decisions and the relevant paragraphs provide a clear and comprehensive summary of the defendant’s statutory duties owed to the claimant in this case. The easiest and clearest way of setting out those duties is to set out those paragraphs verbatim. The relevant paragraphs are as follows: (1) Stage 1 – Application for assistance – initial screening

[1]Assessment for eligibility for assistance 9.1 … The provisions on eligibility are complex and housing authorities will need to ensure that they have procedures in place to carry out appropriate checks on housing applicants. 9.2. Housing authorities should ensure that staff who are required to screen housing applicants about eligibility for assistance are given training in the complexities of the housing provisions, the housing authority’s duties and responsibilities under the race relations legislation and how to deal with applicants in a sensitive manner. The Code was issued in 2005. The race relations legislation has since been replaced by the equality legislation with its wider range of protected characteristics that include mental health disability.

[2]Form of the application 6.6. Applications can be made by any adult to any department of the local authority and expressed in any particular form; they need not be expressed as explicitly seeking assistance under Part 7. Applications may also be made by a person acting on behalf of the applicant, for example, by a social worker or solicitor acting in a professional capacity, or by a relative or friend in circumstances where the applicant is unable to make an application themselves.

[3]Duties owed to applicants who are threatened with homelessness 14.5. Under s.175(4), a person is “threatened with homelessness” if he or she is likely to become homeless within 28 days. However, the Secretary of State considers that housing authorities should not wait until homelessness is a likelihood or is imminent before providing advice and assistance. Early intervention may enable homelessness to be prevented, or delayed sufficiently to allow for a planned move to be arranged. … 6.2. Under s.184 of the 1996 Act, if a housing authority has reason to believe that a person applying to the authority for accommodation or assistance in obtaining accommodation may be homeless or threatened with homelessness, the authority must make such inquiries as are necessary to satisfy itself whether the applicant is eligible for assistance and if so, whether any duty, and if so what duty, is owed to that person under Part 7 of the 1996 Act. 6.16 … Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness and should aim to carry out an initial interview and preliminary assessment on the day an application is received. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s.188.

[4]Interim duty to accommodate 6.5. If a housing authority has reason to believe that an applicant may be eligible for assistance, homeless and have a priority need, the authority will have an immediate duty under s.188 to ensure that suitable accommodation is available for the applicant (and his or her household) pending the completion of the authority’s inquiries and its decision as to what duty, if any, is owed to the applicant under Part 7 of the Act. Chapter 7 provides guidance on the interim duty to accommodate. Authorities are reminded that ‘having reason to believe’ is a lower test than ‘being satisfied’. (2) Stage 2 – Inquiry to satisfy eligibility for assistance

[5]Inquiry 6.12. Under s.184, where a housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, it must make inquiries to satisfy itself whether the applicant is eligible for assistance (see Chapter 9) and, if so, whether any duty and if so what duty is owed to him or her under Part 7. In order to determine this, the authority will need to establish whether the applicant is homeless or threatened with homelessness (see Chapter 8), whether he or she became homeless, or threatened with homelessness, intentionally (see Chapter 11) and whether he or she has a priority need for accommodation (see Chapter 10). 6.15 The obligation to make inquiries, and satisfy itself whether a duty is owed, rests with the housing authority and it is not for applicants to “prove their case”. Applicants should always be given the opportunity to explain their circumstances fully, particularly on matters that could lead to a decision against their interests, for example, a decision that an applicant is intentionally homeless. 6.16. Housing authorities should deal with inquiries as quickly as possible, whilst ensuring that they are thorough and, in any particular case, sufficient to enable the housing authority to satisfy itself what duty, if any, is owed or what other assistance can be offered. Housing authorities are obliged to begin inquiries as soon as they have reason to believe that an applicant may be homeless or threatened with homelessness and should aim to carry out an initial interview and preliminary assessment on the day an application is received. An early assessment will be vital to determine whether the housing authority has an immediate duty to secure accommodation under s.188 (see [above – stage 1] for guidance on the interim duty to accommodate). Wherever possible, it is recommended that housing authorities aim to complete their inquiries and notify the applicant of their decision within 33 working days of accepting a duty to make inquiries under s.184. In many cases it should be possible for authorities to complete the inquiries significantly earlier. 10.3. Inquiries as to whether an applicant has a priority need must be carried out in all cases where the housing authority has reason to believe that an applicant may be homeless or threatened with homelessness, and is eligible for assistance (s.184). Moreover, where the housing authority has reason to believe that the applicant is homeless, eligible for assistance and in priority need, they will have an immediate duty to secure interim accommodation, pending a decision on the case (see Chapter 7).

[6]Priority need – vulnerable 10.12. A person has a priority need for accommodation if he or she is vulnerable as a result of: … ii) mental illness or learning disability (mental handicap) or physical disability; …; or vii) any other special reason. In the case of i), ii) and vii) only, a person with whom a vulnerable person lives or might reasonably be expected to live also has a priority need for accommodation and can therefore make an application on behalf of themselves and that vulnerable person. 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 set out in paragraph 10.12 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. Some of the factors which may be relevant to determining whether a particular category of applicant is vulnerable are set out below. 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 is or will become homeless, and not on his or her ability to fend for him or herself while still housed.

[7]Mental illness or learning disability or physical disability 10.16. Housing authorities should have regard to any advice from medical professionals, social services or current providers of care and support. In cases where there is doubt as to the extent of any vulnerability authorities may also consider seeking a clinical opinion. However, the final decision on the question of vulnerability will rest with the housing authority. In considering whether such applicants are vulnerable, authorities will need to take account of all relevant factors including: i) the nature and extent of the illness and/or disability which may render the applicant vulnerable; ii) the relationship between the illness and/or disability and the individual’s housing difficulties; and iii) the relationship between the illness and/or disability and other factors such as drug/alcohol misuse, offending behaviour, challenging behaviours, age and personality disorder. 10.17. Assessment of vulnerability due to mental health will require close co-operation between housing authorities, social services authorities and mental health agencies. Housing authorities should consider carrying out joint assessments or using a trained mental health practitioner as part of an assessment team. Mental Health NHS Trusts and local authorities have an express duty to implement a specifically tailored care programme (the Care Programme Approach – CPA) for all patients considered for discharge from psychiatric hospitals and all new patients accepted by the specialist psychiatric services (see Effective care co-ordination in mental health services: modernising the care programme approach, DH, 1999). … …; or It is also helpful to insert here paragraph 63 of the judgment of Brooke LJ in R v Newham London Borough Council, ex parte Lumley 33 HLR 124, AC which is a similar case to this one, being an application for judicial review of the relevant housing authority’s refusal to provide interim accommodation to a claimant pending a review of a decision that he was not vulnerable by virtue of his depressive mental illness. This paragraph reads as follows: “63. There are two matters which I wish to add by way of an appendix to this judgment. The first is that at the centre of this application is the claim that Mr Lumley is vulnerable in the relevant sense because he is suffering from a severe depressive order. It is, I believe, well-known that psychiatric illness is often regarded with less sympathy than physical disability, perhaps because it is not so readily understood by lay people. In its report on Liability for Psychiatric Illness (1998) Law Com No 249, the Law Commission has given a description of depressive disorders in very clear layman's language which [a housing authority] would do well to study during the current review of [IA’s] case: "It is part of normal human experience to feel unhappy at time of adversity but ... mere grief or distress is not compensatable at law. Depressive disorders are distinguished from more ordinary fluctuations in mood by the severity and duration of symptoms, and by the effect of these symptoms on nearly all activities. In broad terms, a depressive disorder is characterised by a cluster of symptoms including: depressed mood most of the day, nearly every day, for at least 2 weeks; loss of interest or pleasure in activities that are normally pleasurable; decreased energy, change in appetite; sleep disturbance; difficulties in concentrating; feelings of worthlessness; and recurrent thoughts of death.Several studies have shown that depressive disorders often follow severe stressors, such as the loss of a loved one ..."

[8]Other special reason 10.30. Section 189(1)(c) provides that a person has a priority need for accommodation if he or she is vulnerable for any “other special reason”. A person with whom such a vulnerable person normally lives or might reasonably be expected to live also has a priority need. 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. Where applicants have a need for support but have no family or friends on whom they can depend they may be vulnerable as a result of another special reason. 10.31. Housing authorities must keep an open mind and should avoid blanket policies that assume that particular groups of applicants will, or will not, be vulnerable for any “other special reason”. Where a housing authority considers that an applicant may be vulnerable, it will be important to make an in-depth assessment of the circumstances of the case. Guidance on certain categories of applicants who may be vulnerable as a result of any “other special reason” is given below. The list below is not exhaustive and 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). "It is part of normal human experience to feel unhappy at time of adversity but ... mere grief or distress is not compensatable at law. Depressive disorders are distinguished from more ordinary fluctuations in mood by the severity and duration of symptoms, and by the effect of these symptoms on nearly all activities. In broad terms, a depressive disorder is characterised by a cluster of symptoms including: depressed mood most of the day, nearly every day, for at least 2 weeks; loss of interest or pleasure in activities that are normally pleasurable; decreased energy, change in appetite; sleep disturbance; difficulties in concentrating; feelings of worthlessness; and recurrent thoughts of death.Several studies have shown that depressive disorders often follow severe stressors, such as the loss of a loved one ..."

[9]Former asylum seekers 10.35. Former asylum seekers. Former asylum seekers who have been granted refugee status or exceptional leave to remain, humanitarian protection, or discretionary leave will be eligible for homelessness assistance and may be at risk of homelessness as a result of having to leave accommodation that had been provided for them (e.g. by the National Asylum Support Service) in the period before a decision was reached on their asylum claim. They may well have experienced persecution or trauma in their country of origin or severe hardship in their efforts to reach the UK and may be vulnerable as a result. In assessing applications from this client group, housing authorities should give careful consideration to the possibility that they may be vulnerable as a result of another special reason. Authorities should be sensitive to the fact that former asylum seekers may be reluctant to discuss, or have difficulty discussing, their potential vulnerability, if, for example, they have experienced humiliating, painful or traumatic circumstances such as torture, rape or the killing of a family member.

[10]Interim duty to accommodate pending decision as to homeless unintentionally, eligible for assistance and in priority need Section 188(1) imposes an interim duty on housing authorities to secure that accommodation is available for an applicant (and his or her household) pending their decision as to what duty, if any, is owed to the applicant under Part 7 of the Act if they have reason to believe that the applicant may: a) be homeless, b) be eligible for assistance, and c) have a priority need. 7.3. The threshold for the duty is low as the local authority only has to have a reason to believe that the applicant may be homeless, eligible for assistance and have a priority need. (See paragraph 6.5 for guidance on the “reason to believe” test.)

[11]Decision that an applicant is homeless unintentionally, eligible for assistance and in priority need 14.6 Where the authority are satisfied that an applicant is threatened with homelessness unintentionally, eligible for assistance and has a priority need for accommodation, it has a duty under s.195(2) to take reasonable steps to secure that accommodation does not cease to be available for the applicant’s occupation. 14.7. Such reasonable steps may include for example, negotiation with the applicant’s Landlord … 14.9. Where the housing authority is under a duty under s.195(2) and they are unable to prevent the applicant losing his or her current accommodation, the authority will need to secure alternative suitable accommodation for the applicant. Authorities should not delay; arrangements to secure alternative accommodation should begin as soon as it becomes clear that it will not be possible to prevent the applicant from losing their current home. 14.14. Where an applicant is unintentionally homeless, eligible for assistance and has a priority need for accommodation, the housing authority has a duty under s.193(2) to secure that accommodation is available for occupation by the applicant (unless it refers the application to another housing authority under s.198). This is commonly known as ‘the main homelessness duty’. In all cases, the accommodation secured must be available for occupation by the applicant. Section 188(1) imposes an interim duty on housing authorities to secure that (3) Stage 3 – Review of an adverse decision – discretion to provide interim accommodation

[12]Discretion to provide interim accommodation pending a review 15.15. In considering whether to exercise their s.188(3) power, housing authorities will need to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to them against proper consideration of the possibility that the applicant might be right. The Secretary of State is of the view that housing authorities should consider the following, although other factors may also be relevant:(a) the merits of the applicant’s case that the original decision was flawed and the extent to which it can properly be said that the decision was one which was either contrary to the apparent merits or was one which involved a very fine balance of judgment;

(b) whether any new material, information or argument has been put to them which could alter the original decision; and

(c) the personal circumstances of the applicant and the consequences to him or her of a decision not to exercise the discretion to accommodate.

The defendant’s decisions

[14]The defendant’s first decision dated 7 March 2013 set out in a standard form that it had decided, under section 184 of the HA, that the claimant was homeless and eligible for assistance but did not have a priority need. The defendant had, therefore, started and completed its inquiries into the claimant’s application for homelessness assistance within an hour or so of the claimant arriving at its Housing Options Service office. The inquiries consisted of no more than a face-to-face interview with the Housing Caseworker during which she typed out the non-standard parts of the decision letter. She did not, or at least did not appear to the claimant to, communicate with anyone else during the interview. She had a copy of the claimant’s GP’s letter medical report which she referred to in her decision. The decision letter that she printed out and handed to the claimant at the conclusion of the interview was based on what the claimant had told her during the interview and the brief contents of the GP’s report.

[15]The decision was contained the following passage that explained why the claimant was not considered to be vulnerable: “By law, when deciding whether someone is vulnerable, we must look at whether they are less able to fend for themselves, when homeless, so that they will suffer injury or detriment in circumstances where a less vulnerable ordinary person would be able to cope without harmful effects (R v London Borough of Camden ex parte Pereira (1998)). Our enquiries indicate that none of the above applies to you. You told me that you suffer from depression, insomnia and anxiety and that you have leg and back pain. You told me that most of your conditions relate to when you were tortured whilst you were incarcerated in Iran. You told me that you take medication regularly and that you will be seeing a counsellor for further support. You provided me with a letter written by your GP. In the letter, your GP states that you suffer from depression and panic attacks and that you have done for a number of years. He writes that you were previously referred to a psychiatrist and that you are currently waiting to see a counsellor. He states that you take regular medication. He states that you suffer from insomnia and lack concentration. He states that you have back pain and leg pain, which can affect your mobility. He states that you have seen a physiotherapist in the past. He states that you find it difficult to cope and need help and support with your daily needs. He notes that your condition has been aggravated due to the threat of your becoming homeless. You are currently prescribed [set out]. We sought advice from our in-house medical advisor regarding your health problems. She told us that you do not appear to be on any combination of medications that we would normally associate with someone who has a severe or unstable mental health issue. There is no apparent requirement for urgent specialist interventions and treatments. You are not on a care plan or in receipt of any care services that would normally be associated with someone who has a severe inability to function on a daily basis because of a significant mental health problem. She noted that you have long standing depression. This suggests that the depression is manageable and would continue to be manageable if you were to become homeless. You appear to be receiving adequate support from your GP and are receiving appropriate medication. There is nothing to suggest that this would end if you were to become homeless. There is nothing to suggest that you have any severe or enduring medical conditions that would prevent you fending for yourself if homeless. I have also looked at the possibility that you are vulnerable for another special reason. I have carefully considered your situation and all the information you have provided in support of your application. I have decided that you are not in priority need, nor do I consider that your circumstances constitutes another “other special reason”.

[16]The reference to “we have sought advice from our in-house medical advisor” came as a surprise to the claimant. His view, as stated by his counsel during her submissions, was that the Housing Caseworker did not speak to anyone during the interview, had not seen the GP’s letter until the interview started and did not have any other opportunity to speak to this other advisor after the interview since the decision letter was provided to the claimant as he left. It is noteworthy that the qualifications and experience of this medical advisor are not provided and no record of the conversation in which the advice was provided has been made available.

[17]The claimant’s solicitor’s letter dated 28 March 2013 sought a statutory review of that decision and the provision of interim accommodation pending that review since the claimant was to be made homeless on 4 April 2013. It listed the grounds on which it was contended that he had a priority need. These were:

[1]Our client is suffering from mental and physical health conditions and is therefore vulnerable.

[2]Our client instructs us that his mental illness has required him to see a psychiatrist in the past and that he suffers from panic attacks and is extremely vulnerable.

[3]We are instructed that our client sought asylum here in the UK in 2009 from Iran, where he was a political activist against the government there and where he was tortured mentally and physically for an extended period because he was protesting against the local government.

[4]Our client instructs us that he has no support network as all his family and friends are in Iran and he is alone in the world, troubled and isolated. Our clients instructs us that he has recently become aware that five of his friends, who were politically active with him, has been sentenced to death and this has left him suffering from insomnia because of the stress and worry about the safety of his family and friends.

[5]Our client instructs us that his mental health has deteriorated as a result of the news about his friends and family, but this has been further exacerbated by his current housing position.

[6]Our client instructs us that he has developed suicidal thoughts and ideation, including auditory thoughts of self-harm and has stated that he feels that “there is no reason for life” during our meeting with him.

[7]Our client instructs us that he is currently under the care of a GP at [the Medical Centre close to his flat] and that he is taking medication for his depression and insomnia, including Diphenhydramine Hydrochloride and Citalopram Hydrobromide. We enclose a copy of a report from his GP obtained by our client for your consideration.

[8]We are instructed that our client’s low mood and lack of sleep has left him unable to engage with other people and get motivated to carry out daily tasks as he just wants to stay in his room.

[9]We are instructed that due to experiencing one personal crisis after another, he has become despondent and unable to cope.

[10]With regard to his physical health, our client instructs us that he suffers from chronic back and leg pain which leaves him unable to move and affect his mobility, which would continue to deteriorate if he were made street homeless.

[18]This letter was answered by the Team Leader of the Housing Options Service on 5 April 2013. The relevant non-standard parts of this letter read as follows: Merits of the case The background to this case is set out in full in the Council’s original decision. I am of the view that the reasoning in this letter is perfectly clear and that the decision is entirely lawful. … Personal circumstances I have also considered [IA] personal circumstances. [IA] is homeless, [IA] suffers from some physical and mental health problem (sic) but the Council does not consider that these circumstances is sufficiently clear to justify exercising the Council’s discretion to provide temporary accommodation pending the outcome of the review. [IA] is on welfare benefit and is therefore entitled to claim housing benefit. [IA] can access private rented accommodation and claim housing benefit. I have also considered [IA’s] pass accommodation history, where he has demonstrated his ability to secure rented accommodation in private market. [The letter then advised that IA was able to apply to the Social Fund for money towards a rent deposit, he could consider living outside Westminster or London where the rent is comparatively cheaper, that he had refused assistance in relation to a hostel search, that he could contact a member of the defendant’s customer service team for advice and assistance and that if he found himself street homeless he could obtain a copy of the defendant’s Rough Sleepers and Single Homeless Strategy document which provides a network of support and short-term accommodation.] Merits of the case

Personal circumstances

[19]The claimant’s solicitors’ pre-action protocol letter seeking interim accommodation pending the receipt of the review decision explained that a judicial review application would be made unless such accommodation was provided. The letter set out a fair and accurate summary of the two relevant decisions, ex parte Mohammed and ex parte Paul-Coker

(1997) 30 HLR 315

, QBD, Latham J and

[2006] EWHC 497 (Admin)

, Forbes J. governing such a judicial reviewand continued: Merits: It is evident that the Local Authority’s letter dated 5 April 2013 fails to adequately consider and investigate the new information provided to the Local Authority in the claimant’s letter of 4 April 2013 and it cannot therefore be said that the authority reached a properly or adequately reasoned decision. Accordingly, in the absence of proper investigation and therefore reasoning, the decision is unlawful as the decision cannot be said properly to have applied the Mohammed test. In particular, the claimant’s suicidal ideation has been dismissed as an incidental thought linked to his current circumstances and has not been accepted as a sign of mental illness. However, the claimant is suffering from long standing depression, panic attacks and low mood that have been confirmed by the claimant’s GP and for which the claimant has sought the assistance of a psychiatrist in the past. The Local Authority will note that the mental conditions suffered by the Claimant are recognised mental health problems therefore our client does have mental health difficulties which make him vulnerable. Further there has been a failure to apply the correct test as the Local Authority have looked at the claimant’s ability to cope and find alternative accommodation in the private market in the past, not his vulnerability since the change in his personal circumstances, particularly about hearing the news of his friends and linked political activists being sentenced to death in Iran, which the claimant has instructed has caused him to suffer from insomnia and has impacted on his ability to carry out day to day tasks due to lack of sleep. This is directly linked to the authority’s failure to make proper inquiries that the new information provided to them in the claimant’s letter of 4 April 2013 should have led to, rather than relying on the information they already had and were relying on. The claimant has provided evidence to the Local Authority in support of his request for a Review and his request for interim accommodation was made. Personal circumstances The Local Authority will note that the claimant is an asylum seeker from Iran where he was tortured and incarcerated for 40 days. Due to the extreme anxiety discussing these issues elicits, the claimant has particularly vivid memories of incarceration and the traumatic recollections which he is unfortunately forced to relive on a daily basis. This additional reason clearly makes the claimant particularly vulnerable and if made street homeless there is a strong likelihood that the trauma of fleeing Iran and the torture he has suffered there would manifest itself in a further deterioration of the claimant’s mental and physical health. We submit this point has clearly not been fully considered or investigated before the decision to refuse interim accommodation was made.” Merits:

Personal circumstances

[20]This letter was answered by the Housing Options Service Manager on the same day, being 12 April 2013. The relevant non-standard passages in this letter refused to reconsider the decision not to provide interim accommodation pending the review of the defendant’s decision that the claimant was vulnerable and in priority need. They read as follows: … I am of the view that the reasoning [in the defendant’s original decision dated 7 March 2013] is perfectly clear and that the decision is entirely lawful. In your letter you take the view that the merits of our original decision on accommodation pending review are flawed. You state that the letter failed to take into consideration new information provided to the authority in your letter dated 4 April 2013. In particular you refer to your client mentioning to your firm that he is feeling suicidal. In our letter dated 5 April 2013 we attributed these thoughts to his circumstances rather than his mental health. As noted in your letter we are in agreement that [IA] has mental health issues, but there is no evidence to suggest that his mental illness is the cause of his present thoughts regarding harm. No definitive evidence has been presented to support the idea that [IA’s] thoughts of harm are attributed to mental illness. We had already had sight of [the GP’s] report dated 27 February 2013 and this was taken into account by our own medical advisor, the s 184 decision-maker and in our letter of 5 April 2013. The letter was written recently and makes no mention of [IA] having thoughts of self-harm or suicidal ideation or of him having a history of such ideas. I’m therefore not prepared to exercise discretion simply because your client mentioned these thoughts in your office. You also suggest we have failed to apply the correct [Periera] test. … I disagree. The decision makes reference to numerous aspects of your client’s circumstances including his mental health, his physical health and his overall circumstances including his ability to manage his day to day affairs i.e. his tenancy. I am of the view that your client’s ability to find accommodation and maintain a tenancy was a relevant consideration as the GP letter dated 27 February 2013 made a reference to his ability to manage his day to day affairs. Even so, this issue is just one aspect of his case and the decision letter which does look at his mental health issues, and other reasons and does apply the Pereira test, must be read as a whole. Furthermore, you suggest the recent news of [IA’s] friends in Iran has led to his insomnia and that this is new information. Yet [IA’s] GP had already reported his insomnia as being an on-going matter and his condition is not new information. Also the s184 letter has taken his insomnia into consideration. On the balance of this information I am satisfied that all relevant information has been taken into account and adequate inquiries have been made. I am satisfied that the decision is lawful and correct. New information, material or argument The Council has had regard to the information contained in your fax dated 12 April 2013. I do not consider this letter to contain any new information, material or argument, which might have a bearing on the original decision and cause us to exercise our discretion in your client’s favour throughout the review period. No new information has been submitted with your letter on the 12 April 2013. I note no new argument has been put forward which you headed under merits, and so I have addressed the issues above. I am therefore of the view that the correspondence included in your representations does not contain any new information, material or argument that has any bearing on our decision.

New information, material or argument

[21]The claimant is now seeking a judicial review of the defendant’s section 184(3) decision rejecting him as being vulnerable and in priority need on the grounds that it was neither a section 184 decision nor a lawful decision. He is also seeking judicial review of what he contends is the defendant’s failure to comply with its section 188(1) duty to ensure that interim accommodation is made available for his occupation pending the taking of a valid and lawful section 184 decision. He finally is seeking judicial review of the defendant’s section 188(3) discretionary decision not to continue to secure interim accommodation pending the outcome of its review on the grounds that it was Wednesbury unreasonable.

Permission application

[22]In deciding whether to grant permission to apply for judicial review of these three separate stages of the defendant’s consideration and purported fulfilment of its homelessness duties owed to the claimant, I must apply the test of whether the claimant’s challenge to them has reasonable prospects of success. Given the inter-relationship of these three stages in that process, I will consider each stage separately and then take a view in the round. (1) The section 184 decision

[23]The claimant’s prospects of showing that this decision was unlawful, flawed with procedural irregularity and Wednesbury unreasonable are very strong for the following reasons.

[24]Failure to pursue inquiries. It is clear from the Homelessness Code that in a case involving alleged vulnerability due to mental health and other reasons, a housing authority should immediately after receiving an application or referral undertake an initial screening exercise to determine whether it has reason to believe that the applicant is unintentionally homeless, eligible for assistance and in priority need. This exercise should be undertaken within a day of the receipt of the application and, if the authority has reason to believe that its Part VII duties are engaged, it should embark on the necessary inquiries (in the plural) and should make interim accommodation available to the applicant pending the conclusion of those inquiries. These inquiries should not take more than 33 days, save in exceptional circumstances, but in many cases should take significantly less time than that.

[25]It is significant that the applicant does not have to “prove his case”. The inquiry process is an inquisitorial one and the Code clearly envisages that the case worker undertaking that inquiry will, in a case such as the claimant’s, pursue a number of avenues of inquiry. Where mental health issues and issues arising from historic mistreatment of former asylum seeker are concerned, the housing authority should normally consult with the applicant’s medical advisers, both present and past and with the relevant mental health services and will usually seek obtain a further assessment and report from a psychiatrist. Where, as in this case, it appears that the applicant is depressed, alone, unable readily to cope with day-to-day living tasks, unemployed and possibly unemployable, has no settled links with England or the English way of life and has minimal support mechanisms at his disposal, the inquiries would be expected to extend to a detailed inquiry into the applicant’s way of life prior to his homelessness.

[26]It would have been impossible for any of these inquiries to be undertaken in this case during the initial screening interview. All the caseworker had to work with, save for IA’s answers, was the helpful and revealing but inevitably very short Medical Report from the claimant’s GP. This GP was clearly one who would have been known to the Housing Options Homelessness team as one who had a good experience of homeless vulnerable people since his practice was in the very area where the claimant came from and was located close to the relevant offices of the defendant. That report described the claimant as finding it difficult to cope and as one who “will need” (note the future tense) help and support with his daily needs. Moreover, his condition would be aggravated and made vulnerable due to his having been served with an eviction notice. Given that the report attributed these difficulties directly to his long-term depression, panic attacks, low moods, insomnia, chronic back pain and leg pains which affect his mobility and that he had suffered torture in his home country as recently as 2005 prior to his arrival as an asylum-seeker in England, it seems irrational and, indeed, perverse for the defendant to conclude that there was no reason to believe that the claimant was vulnerable and in priority need and to screen him out of the section 184 inquiries that it otherwise had a duty to undertake.

[27]It follows that the claimant has a highly arguable case for demonstrating that no section 184 inquiry was ever conducted and that, perversely, the inquiry was screened out by the adverse screening decision taken on 7 March 2013.

[28]Procedural irregularity. It is doubtful whether the decision-maker consulted the in-house medical advisor about the specific details of the claimant’s case at all. If such a consultation took place, the only matter upon which advice was apparently taken was as to the normal reason for prescribing the three repeat medications referred to in the GP’s report. No reference was apparently made to the various known circumstances of the claimant’s case and the qualifications and experience of the advisor are not identified. Unless that advisor was a psychiatrist, it seems unlikely that such advice as was given could or should have been relied on without further reference to the claimant’s GP Furthermore, fairness dictated that any advice received by the defendant should have been referred to the claimant’s GP, and possibly his previous psychiatric advisor, for comment and response before a final priority need decision was taken.

[29]Wednesbury unreasonable. The decision, if it be a section 184 decision, failed to take account of any of the inquiries that section 184 envisaged as being required on the facts of a case such as this one. The decision-maker should, it is to be presumed, have sought details of the case presented to the UK Border Agency that led to the claimant being granted asylum, of the nature and contents of the psychiatric assessment and treatment he had previously received, of the reasons for the proposed counselling, of the reasons why the landlord had terminated the claimant’s tenancy and of any independent evidence of the claimant’s living difficulties. The GP should have been asked to provide a full report and an independent psychiatric assessment should have been considered. These further details and any other further details should have been considered against the reported mental and physical difficulties reported on by the claimant and the GP. That should then have led to the vulnerability assessment which is in the nature of a risk assessment which assessed the extent to which the claimant would be vulnerable if homeless and the relative vulnerability he would suffer from compared to that of other homeless vulnerable people.

[30]None of these matters were considered, or sufficiently considered, by the decision-maker and, on these grounds as well, the claimant has good prospects of success in showing that the decision was flawed.

Section 188(1) duty

[31]If the section 184 decision is flawed and susceptible to challenge on any or all of the grounds set out above, it follows that the claimant has good prospects of showing that the defendant is in breach of its section 188(1) duty in not providing the claimant with interim accommodation pending the provision of a lawful section 184 decision.

Section 188(3) duty

[32]The claimant’s solicitors provided significant additional information to the defendant following the section 184 decision relating to the claimant’s possible significantly deteriorated mental health, his inability to cope with homelessness and the additional difficulties he was experiencing as a former asylum seeker who had received very shattering and painful news from his home country that was directly linked to his own pre-asylum experiences. Further details were also provided as to his loneliness, his lack of any support mechanism and as to the debilitating nature and effects of his depression, physical disabilities, insomnia and other similar factors.

[33]None of this additional information had been assessed by appropriate inquiries and the most distressing of these details were dismissed in somewhat cavalier and speculative fashion by the Team Leader and, subsequently, by the Housing Options Service Manager. It followed that, in the light of the original apparently flawed section 184 decision, the Pereira decision taken by the defendant in refusing the claimant interim accommodation pending the review of his case was highly arguably flawed since it made no assessment of the merits of the claimant’s case that he was vulnerable on mental health and other grounds, it failed to take account of the Case Worker’s failure to make any inquiries when reaching the section 188 decision, it did not assess or inquire into the new material submitted by the claimant’s solicitors and it overlooked or dismissed peremptorily the claimant’s personal circumstances.

[34]It follows that the claimant has good prospects of success in obtaining a judicial review of the defendant’s interim accommodation decisions.

Interim injunction

[35]Given the good prospects of success in the judicial review, it is clear that the claimant was correct in seeking, and the court’s decision was not open to challenge in granting, an interim injunction requiring the claimant to be provided with interim accommodation. The injunction can be seen to have been appropriate both on the grounds that there was a continuing apparent breach of the duty to provide interim accommodation pending a valid section 184 decision and because the section 188(3) discretionary decision was flawed on Wednesbury grounds.

[36]The interim injunction should be continued until the review decision is available. The claimant is entitled to the costs of the injunction proceedings to date. Such costs should be assessed forthwith in conjunction with a public funding assessment.

[37]Given the importance and topicality of this decision in the field of Part VII homeless applications, I have certified that this judgment may be cited and referred to in other cases or situations. This direction is made pursuant to paragraph 6.1 of the Practice Direction (Citation of Authorities)

[2001] 1 WLR 1001

, CA. . HH Judge Anthony Thornton QC 20 May 2013

Cited in 1 later judgment

Edwards & Ors, R (on the application of) v Birmingham City Council 2016