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Discretion, lip service and s188(3)


Barrett, R (On the Application Of) v City of Westminster Council [2015] EWHC 2515 (Admin)

We’re very late with this one for reasons which are no doubt entirely reasonable, but currently escape me. A judicial review of a refusal (or repeated refusal) to provide interim accommodation pending s.202 review.

Ms B is 58 years old and is single without children. She lived in Tunbridge Wells for about eight years until spring 2013. She was evicted after the property was sold by the landlord Housing Association. She was offered alternative accommodation in Tunbridge Wells for which she signed a tenancy agreement, but never moved in because she feared for her safety. Ms B asserted that she was the victim of attempted murder, two attempted abductions and a campaign of harassment.

Ms B had applied to various LAs as homeless, and had some temporary accommodation, but also periods of street homelessness, sleeping in cafes and night buses. She received Disability Living Allowance and Severe Disablement Allowance. She said that she suffered from anxiety, panic attacks, IBS and foot pain, but could not take conventional medicines due to allergic reactions.

She presented to Westminster as homeless. The initial s.184 decision (pre Hotak/Johnson/Kanu) said the Council:

Were unable to take the client’s verbal explanation of medical issues. Would require some sort of medical documentation in order to trigger a reason to believe that you are in priority need. I concurred that the burden of proof rests on the Local Authority, but you have not provided a single point of information or evidence for this Authority to investigate you. You have confirmed during the interview that you are not in receipt of any secondary or specialist medical treatment and thus we are unable to make inquiries

It went to say

We are of the opinion that if you are suffering from anxiety, panic attacks, IBS and foot pain, you are able to access appropriate medical care from a GP should you wish to do so. Therefore, there is no reason to indicate why this level of care should not be available to you while you are homeless.” […]
“Having considered the evidence, I am not satisfied that you suffer from a severe or substantial physical or mental health disorder or that your activities and basic day to day living are particularly affected. Also, there is nothing to impede your basic daily activities or your ability to support yourself and there are no apparent risks to your health if homeless. There is no evidence to suggest your mental and physical health will make you less able to fend for yourself as a homeless person.”

(As an aside, the Admin Court in this judgment says of this “that did not take into account the precise guidance in Hotak, but that guidance had not yet been given. I accept Mr Peacock’s (for Westminster) assessment that this was not, however, entirely different to the principles that were applied in Hotak.” Given Lord Neuberger’s statements on ‘less able to fend for yourself’ in Hotak, I’m not sure that this is right.)

Ms B sought a s.202 review and requested accommodation pending review under s.188(3). Her solicitors’ wrote a “very strong and convincing letter” stating, amongst other things:

“Our client spent her time in hostels, hotels, shelters and seeking assistance from other Authorities. Our client has exhausted any options for accommodation and can no longer cope with being homeless.”

The headings of her illnesses were:

(A) Eating disorder; anorexia.
(B) Obsessive compulsive disorder.
(C) Severe irritable bowel syndrome [and I am going to read this section out]. Our client was diagnosed by a specialist in Hove General Hospital with IBS. This condition means sudden and violent emptying of the stomach contents. In the event of an ongoing attack and symptoms, she has no choice but to wash her clothes out in a public toilet while being pressured by members of the public. Our client experiences significant discomfort aggravated by poor sleeping arrangements, little to no food or liquid.
(D) Panic attacks and anxiety.
(E) Foot injury.
(F) Exhaustion.

Westminster refused s.188(3) accommodation in a letter that simply stated, under ‘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 the decision is entirely lawful.”

There was apparently no consideration of the Mohammed principles (R (Mohammed) v Camden LBC [1997] 30 HLR 315 – (a) the merits of the substantive case, (b) whether there was new material on review that could effect the decision, (c) the personal circumstances of the applicant.).

A further request for interim accommodation was accompanied by an Occupational Therapist’s report. This stated, amongst other things:

“Mood: Miss Barrett feels exhausted and disheartened most of the time due to her situation. She suffers from severe sleep deprivation. She is in fear of being attacked on the street and this only worsens her anxiety of fear of being in public places.”

Under “toilet/catheter”: “Miss Barrett struggles with public toilets. If she is eating food, this is additionally difficult as she also suffers from OCD which often prevents her using public toilets.”

There are remarks under “continence, eating, drinking, sleep pattern”: “Miss Barrett suffers from extreme sleep deprivation, unable to sleep on the streets, and she is therefore sitting in a night bus some nights. She is in constant fear of being attacked or robbed. She has been attacked on several occasions whereby she had her belongings and handbag and purse stolen while being physically threatened by the attacker. She feels particularly vulnerable to most people being men late at night, often under the influence of alcohol. They are more likely to approach a female more aggressively and this is Miss Barrett’s experience while being street homeless.”

The Council’s response stated under ‘New Information’

“The OT report does not provide any new information in relation to medical conditions and these have been fully addressed in my previous letter.”

The Admin Court held that, while the s.188(3) decision was a matter of the Council’s discretion, there had to be more than lip service paid to a consideration of the relevant facts. (Eg R (on the application of) Paul-Coker v London Borough of Southwark [2006] EWHC 497 (Admin) ). The letters from the council were found to show that:

the Council has not given conscientious consideration to the necessary matters. I do not accept that the original decision was unlawful. I do, however, think that the subsequent three Mohammed letters, particularly the first and the second, were unlawful and that the proper course is that the Defendant reconsiders the matter, which is the relief that is sought.

However, an order for accommodation pending a fresh decision on interim accommodation pending review was refused, as although the application for interim relief was in the claim form, it was not an order sought in counsel’s skeleton argument.

Westminster were ordered to make a fresh decision within a couple of days. Costs to the Claimant.


Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.



  1. Discretion, lip service and s188(3) – Nearly Legal | Current Awareness - […] Full story […]

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