In El-Dinnaoui v Westminster CC [2013] EWCA Civ 231, the Court of Appeal found that the offer of a flat on the 16th floor of a block to a household which contained a person with fear of heights was perverse. The offer of accommodation was “in the teeth” of the medical evidence. How could the case have got this far, one might well ask? At heart in this case, there is something interesting about the reception by homelessness officers about medical evidence (see comments at the end). The final point by way of introduction is a hat-tip to Debra Wilson at Anthony Gold who, I’m told, took Mr El-Dinnaoui’s appeal pro bono (and won).
In essence, the El-Dinnaoui household had been provided with s 193 accommodation on the ninth floor of a block since 2002. After a couple of transfer requests in 2002 (one of which was on the basis of Ms El-Dinnaoui’s “fear of heights”), which came to nothing (it is not clear why), Westminster accepted that this flat was overcrowded because of the birth of a third child. The key points about this ninth floor flat were (a) there was no direct view of the street below from the windows, and (b) Ms El-Dinnaoui had received CBT in 2006.
The offer of alternative accommodation on the 16th floor came in. The major difference between this property and the other one was that the windows were low down so that there must have been a clear sense of the height of the flat above street level. At the viewing, there were dramatic consequences. Ms El-Dinnaoui collapsed at the lift and an ambulance had to be called. The hospital discharge letter said “had a panic attack while on 16th floor. Has had lifelong fear of high buildings”. This was followed up by the GP’s letter to Westminster which confirmed severe vertigo and fear of heights, and a subsequent letter which described a long-standing fear of heights, but that there had been no previous treatment. A questionnaire to the GP was answered by somebody else from the surgery who confirmed that the only record about a fear of heights was after the viewing of the property.
The review officer issued a minded to letter and then the s 202 review decision. She wrote that the question before her was whether Ms El-Dinnaoui had an irrational fear of heights or a general dislike. She came down on the side of the latter, suggesting that Ms El-Dinnaoui would get used to the flat over time and risks could be mitigated by “thick nets and curtains or blinds to camouflage the view from the window”. The further reasons for this view were that Ms El-Dinnaoui had got used to living on the ninth floor; and none of the medical advisors had given a restriction as to the floor above which Ms El-Dinnaoui should not be offered accommodation: “To me this is an indication that Mrs El-Dinnaoui’s case was not sufficiently severe to warrant this”.
A failure to make further inquiries challenge was disposed of briefly by the Court of Appeal on the basis of Cramp. It was the general perversity challenge which was successful. As Sir Alan Ward, who gave the only substantive judgment, said: ‘How, in the teeth of that medical evidence, could one rationally conclude that Mrs El-D simply had “a general dislike of heights” as opposed to “an irrational fear which would make any property above a certain floor level impractical”?’
The key point was the distinction between the two properties. In the ninth floor flat, one could not see the road below; in the 16th floor flat, by contrast, the windows were only three feet above floor level, giving full view. As for the nets/curtains point made by the review officer, he asked “Is it practical to live behind drawn curtains?”. Further, the history invites “only one conclusion”, that her collapse when viewing the 16th floor flat was inevitable.
Comment
(i) Given that it is ordinarily implicit in a true perversity finding that the decision should be varied, it is odd that this decision was only quashed. Perhaps this was because there may have been further enquiries which could have been made by the review officer (without having reached the Wednesbury threshold for this appeal). Can anyone enlighten me?
(ii) More significantly, there is a general issue about the use, and veracity ascribed to, the applicant’s medical evidence by officers. Here, the medical evidence was pretty clear and, despite there being “no countervailing evidence from a medical expert to refute it”, it seems to have been disregarded. There is an interesting finding from the most recent research conducted by Caroline Hunter, Jo Bretherton and Sarah Johnsen, about the use of medical evidence in priority need vulnerability cases:
… there was little deference to the medical profession – the opinions of the applicants’
GPs were viewed with some scepticism. In one authority this was the main source of
information, as no in-house service was available, yet the officers tended to revert to their professional intuition about the case rather than rely on what GPs said in response as it was felt they were often “on the side” of the applicant.
My sense, for what it’s worth, is that this research finding verifies what is commonly found by homelessness officers, applicants and their advisors. I mean no disrespect to homelessness officers nor to GPs by this – my suspicion is that many GP letters may well read like exercises in advocacy – but there remains the question of how one should treat such letters.
I have only just seen this post, but to fill in the missing detail (I appeared for the El-Dinnaoui family):
1) Debra and I both took the case on pro bono initially, although legal aid was later obtained. A pro bono costs order was made in respect of the work done pro bono.
2) In relation to the fact that the decision was quashed, the authority wanted to obtain further evidence and make a new decision. As far as I am aware, the council then accepted that the flat was unsuitable (I am unsure whether this was before or after any new evidence was obtained).