Unusually, this is a published Judicial Review permission decision. Further, Anthony Thornton QC J has ‘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.’. Why will become clear.

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

This was a combined permission hearing and hearing of an application to extend an interim injunction that the Defendant provide accommodation to the Claimant. The Judicial Review claim was (and is)

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.

Mr IA had approached Westminster as homeless after being evicted from a private tenancy, apparently because the landlord wanted a higher rent than LHA would provide, though the landlord also talked about a forthcoming cap on LHA. When he approached Westminster, he had with him a GP’s letter:

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.”

Mr IA had a short interview with a caseworker in the HPU, answering some questions, and handed over the GP’s letter. At the end of the interview, the caseworker printed off, signed and gave him a section 184 decision letter, stating he was not in priority need. According to Mr IA, the caseworker did nothing else during the interview than talk to him and type up parts of the decision letter.

The decision found that Mr IA was unintentionally homeless and eligible but not in priority need and that the s.192 discretion to accommodate would not be exercised.

The S.184 decision letter read, in part:

“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”.

Note that reference to seeking ‘advice from our in-house medical advisor’. Mr IA’s evidence was that nothing of the sort had occured during his interview, from handing over the GP’s letter to receiving the s.184 letter. The Court noted that “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.”

Mr IA found solicitors who requested a review and interim accommodation pending review. This letter said, in part:

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.

This was refused. On Mr IA’s vulnerability and the further submissions, the refusal simply stated “[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.”

The  council refused to reconsider this decision after a protocol letter of claim, which stated, in part:

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 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.”

Westminster’s response was dismissive:

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.

[…]

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.

The claim was issued with a without notice application for interim relief, which was granted. Somewhat surprisingly, Westminster applied to have the injunction discharged. That application somehow got turned into the present application to continue relief, which didn’t bode well for them.

And so it proved. The Court granted permission on the Judicial Review and continued the injunction for Westminster to accommodate until hearing.

On permission [paras 23-33]

(1) The section 184 decision
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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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

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

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.

 

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.

The Court therefore found that Mr IA had ‘good prospects of success’ in obtaining a judicial review of the defendant’s interim accommodation decisions.

In view of this, the decision on the injunction was inevitable.

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.
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.

Comment

Costs against Westminster on the injunction proceedings, and an assessment of the JR claim as ‘very strong’ are a very clear indication of where this claim would be heading for Westminster. Highly unusually, the Court certified the judgment for reference and citing in other cases, ‘given the importance and topicality of the decision in the field of Part VII homeless applications’.

It may be that there are other cases against Westminster imminent, but in any event, this is a clear shot across the bows of Local Authorities that have taken up a practice and/or policy of ‘instant’ or same day s.184 decisions, in order to avoid having to provide interim accommodation under s.188(1). If the applicant is prima facie unintentionally homeless, eligible and in priority need, inquiries must be undertaken, and those inquiries should extend further than just the evidence presented by the applicant, if that evidence is enough to give reason to believe that he or she may be unintentionally homeless, eligible and in priority need.

In short, any ‘on the day’ decision where no further inquiries have been made is likely to be unlawful unless there was no apparent reason to believe that the applicant may be homeless, etc.

Any approach such as Westminster’s, completing a pro forma s.184 in the interview, let alone referring to an ‘inhouse medical expert’ who apparently wasn’t consulted at all on the evidence here, is unlikely to constitute adequate inquiries in anything but the most obvious case.

On the making of inquiries, the following comments in the judgment are worthy of note:

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.

And

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.

For applicants with mental health issues, this is very helpful. It is not unusual for an ‘in-house medical advisor’ (usually at GP level) to be consulted about prescriptions and the applicant’s condition dismissed on that basis. The upshot of this case is that any such advice by the ‘in-house medical advisor’ should be referred to the applicant’s GP and/or psychiatric advisor for response.

While Shala v Birmingham CC [our note] was concerned, on a strict reading, with whether an ‘in house’ GP could be considered equal to the applicant’s consultant psychiatrist, this case appears to widen the doubts about the extent to which the Local Authority could rely on advice from a non-specialist in house GP advisor, at least without referring that advice to the applicant’s GP/consultant, at least in mental health cases.

We will have to see if this case goes to full JR hearing, though it seems doubtful, but this permission and injunction decision is clearly and strongly set out. All should take note.